Thankaswamy Padayachi and Another vs Sridharan

Ratnavel Pandian, J.—The respondent B-Party in M.C. 13/1974 on the file of the Sub-Divisional Judicial Magistrate and Sub-Collector,

Chidambaram, have filed this revision petition seeking to revise the order of the lower Court u/s 147(3), Criminal Procedure Code directing the

channel in dispute to be restored and the obstruction to the path to be re-moved.

The respondent herein belonging to A-party filed a petition u/s 147, Criminal Procedure Code, requesting the lower Court to restore to its

original position the obliterated patta channel running south of R.S. 106/1 and 106/3 and north of R.S. 106/6, 106/10 and 106/11 and ending in

R.S. 104/3 of Chinnanergunam village, Chidambaram taluk, within the limits of the jurisdiction of the lower Court, for irrigation purposes and also

to restore the fence put up in R.S. 107/1 of the said village for the free usage of pedestrians and for taking cattle for agricultural operations. Both

parties filed their respective written statements in respect of their claims over the channel and usage of the pathway. Four witnesses on the side of

the A-party and four witnesses on the side of the B-party including the respective parties were examined. Exs. A-1 to A-4 are the four documents

marked in this case. After a perusal of the records and scrutinising the evidence, the learned Magistrate of the lower court has passed the above

order. Aggrieved by this order, the B-party has come forward with this revision petition, mainly contending that the lower Court has erred in not

giving a finding on the casement rights as such claimed by the A. party (respondent herein) in respect of the alleged channel and the pathway and

failed to consider whether the rights, if any, have been lost by non-user over the years as contended for by the B-party the petitioners herein, and

that the said order passed for restoration of the channel as detailed as per the Field Measurement Book is beyond the purview of Section 147,

Criminal Procedure Code. Besides, he has also raised the contention that the evidence adduced in this case is not sufficient warranting the lower

Court to pass such an order.

Sections 129 to 148 under Chapter X of the Criminal Procedure Code, 1973 (Act II of 1974), deal with maintenance of public order and

tranquillity in general, of which Sections 145 to 148 come under the sub-heading ""D"" (disputes as to Immovable property). Section 147 deals with

disputes concerning right of use of land or water. This section and similar other sections of the Code are not intended to give to the Magistrate

power to decide disputes relating to the rights of the parties. The sole object behind these sections is to prevent breach of peace and if a

Magistrate finds that there is a likelihood of breach of peace and that it is due prima facie to the wrongful act of a person, he can, by invoking these

sections, direct that wrong-doer to desist from doing the wrongful act. It is well-settled that in passing such an order under these sections, the

Magistrate must bear in mind that his jurisdiction under these sections is confined only to preventing breach of peace and that he is not expected to

hold complicated enquiries as to title and try to adjudge the same. No doubt, the orders passed under these sections are intended to be only of a

temporary nature till the rights of the parties are finally settled by competent Courts. Section 147 is aimed at prevention of a breach of peace,

mostly regarding a claim to a right of way or to a right of water for purposes of irrigation. Disputes in respect of the actual possession of land,

water or boundaries thereof are not within the ambit of this section, but those disputes come only within the purview of Section 145. Though the

learned Magistrate has not specifically stated in her order anything regarding the existence of the breach of peace, for initiation of the proceedings

under this section, I find from the records that while passing a preliminary order u/s 147(1), it is stated thus:

During the personal inspection of the site, I saw a dispute between both the parties and the lands remain uncultivated due to the obliteration of the

detailed channel which meant for the irrigation to the lands owned by the ''A'' Party. I am satisfied that a dispute likely to cause breach of peace

exists between ''A'' Party and ''B'' Party mentioned above concerning the obliteration of the detailed channel described below within the local limits

of the jurisdiction of this Court regarding the restoration of the channel....

Thus, it is seen that the proceedings under this section were initiated only after the Magistrate had satisfied herself that there was a dispute likely to

cause breach of the peace regarding the alleged right of user of land and water. It may be noted here that it is not necessary for the Magistrate to

find that a right of casement strictly so called is established, because Section 147(1) reads, ""Whether such right be claimed as an casement or

otherwise"". Therefore, a plain reading of this section would show that the Magistrate, while passing an order under this section has to satisfy himself

whether the petitioner seeking the remedy had a right to the flow of water for purposes of irrigation through a certain channel. After going through

the order of the lower Court, I am fully satisfied that the Court below has fully gone through the written statements and evidence on record and

then had arrived at a clear finding on the points in issue between the parties. For the above discussions, the first contention raised by the learned

Counsel falls to the ground.

Coming to the second contention that the order for restoration of the channel, by way of a positive direction, is beyond the purview of Section

147, Criminal Procedure Code, it is true that there was considerable conflict of view in respect of this matter. While discussing the provisions of

Section 147 as ii stood then, a Full Bench of the Allahabad High Court in Abdul Wahab Khan Vs. Mohd. Hamid Ullah, held that in order to make

a prohibitive order effective, the Magistrate has power to pass an order for removal of an obstruction, if without its removal prohibitory order

cannot be effectively enforced. But, a Full Bench of the Calcutta High Court in Hem Chandra Banerji Vs. Abdur Rahaman, , held that u/s 147(2)

of the Code, the Magistrate had no power to pass an order directing the removal of existing obstruction. In this case Shantilal Maganlal Vs.

Dahyabhai Gordhanbhai, , a Division Bench of the Bombay High Court after considering both the above Full Bench decisions, dissented from the

Allahabad decision and followed the Calcutta decision, observing that ""if a party wanted more relief such as a mandatory order to remove an

existing obstruction, he should seek it in a civil court."" Some other High Courts also hold that the Magistrate could make only 6 prohibitory order in

the negative form forbidding the doing of an act, but it could not make any order directing the doing of any positive or particular act viz., a

mandatory injunction ordering the removal or demolition of any obstruction set up. But the other High Courts held the view that a negative

prohibitory order could include the positive order for the effective enforcement of the prohibition and so the Court had the power to order the

removal of an obstruction. A similar question arose in our High Court in Angappa Gounder and Others Vs. Krishnaswami Gounder, as to whether

Section 147, Criminal Procedure Code, as it stood then, empowered a Magistrate only to pass a prohibitory order which is generally in the

negative form or whether it empowered a Magistrate to issue a positive order to secure the exercise of the right of the aggrieved party who

complained of the infringement of his right. In view of the conflict of decisions regarding the scope of this section, as it stood then, the matter was

referred to a Division Bench and a Division Bench consisting of Panchapagesa Ayyar and Basheer Ahmed Sayeed, JJ., after discussing elaborately

the views of the various High Courts, generally agreed with the view taken by the Full Bench of the Allahabad High Court and held that the

negative order could include a positive direction to make the prohibition, mentioned in Sub-section (2) of old Section 147, effective and useful.

At this juncture, it may be noted that Section 147, as it stood before the amendment of 1923, empowered a Magistrate to make an order

permitting certain thing to be done or directing that such thing shall not be done, as the case may be. But, this was taken away subsequently. Now,

in view of the conflict of decisions as to the scope of the words ""prohibiting any interference with the exercise of such right"" in old Section 147(2),

the Law Commission of India, by its forty-first report (1969), recommended that the position should be clarified as to empower the Court to

order, in an appropriate case, the removal of any obstruction in the exercise of any such right. Accepting the said recommendation, the Parliament

has drafted Sub-section (3) of the present Section 147, corresponding to Sub-section (2) of old Section 147, by adding the words ""including, in an

appropriate case, an order for the removal of an obstruction in the exercise of any such right"". Thus, the longstanding conflict has now been set at

rest by the new Code by enlarging the scope of Section 147 and it is very clear under Sub-section (3) as it now stands, the Magistrate may, in an

appropriate case, order the removal of any obstruction in the exercise of the right of the user referred to in Sub-section (1) provided the conditions

laid down in the proviso are satisfied.

Coming to the evidence, the Karnam of Valayamadurai Kilpathi, has deposed that the channel was previously running through R, S. Nos.

107/3, 107/5, 107/6, 106/6, 106/10 and 106/11 and ending with R.S. 104/3 and water was taken through the channel till 1974 and that whenever

there was no water in the channel, the water should be taken only by digging this channel. Further, he would state that if water was not available in

the channel due to failure of rain, the bore-well water used to be taken through the said channel, Linga Reddiar, the guardian of the A-party who is

none other than the father of Minor Sridhar, has deposed that, the path was obstructed by bamboo fence only on 6-11-1974. Speaking about the

use of the channel, he would state that he had raised kuruvai and irrigated the same through the aforesaid channel. But, he has not raised any

samba crop that year and the channel was closed after the transplantation of short-term crops. He would add that he has got a bore-well in R.S.

338/70 in Valayamadurai limits and if water was found to be insufficient in the tank, he used to take water from his bore-well through the aforesaid

channel and the said path now obstructed and the channel obliterated were put to use during the Kuruvai seasons and not during the samba

seasons. From the above evidence, the learned Magistrate has satisfied herself that the conditions laid down in the proviso also have been fulfilled.

For the above discussions, I hold that the second contention raised by the learned Counsel, that the order of the lower Court is beyond the

purview of Section 147, cannot be accepted.

It is found that the impugned order passed by the lower court does not specify the time for which it is to operate. But, I consider, as pointed out

in P.M. Swamy Vs. K. Sultan Mohideen, that the proper course is to direct the wrongdoer to remove the obstruction and to restore the channel

within a specified time. Accordingly, by exercise of the inherent powers of this Court u/s 482, Criminal Procedure Code I, direct the order of the

learned Magistrate to be executed within one month from the date of receipt of thing order in the lower court, and the lower court will appoint a

Commissioner to carry out the directions at the expenses of the A-Party. It is for the B-Party the revision-petitioners herein, to resort to Civil

Court, if they are so advised, to seek their remedy, if any, and this order will stand good till they get any order from the Civil Court on the matter

Vide also Abdul Wahab Khan Vs. Mohd. Hamid Ullah,

In the result, with the above direction, the revision petition is dismissed.