SHANTILAL MAGANLAL Vs. DAHYABHAI GORDHANBHAI
LAWS(BOM)-1954-1-12
HIGH COURT OF BOMBAY
Decided on January 06,1954

SHANTILAL MAGANLAL Appellant
VERSUS
DAHYABHAI GORDHANBHAI Respondents


Referred Judgements :-

KARUPPANA V. KANDASWAMI [REFERRED TO]
VENKANNA V. VENKATA SURYA NEELADRI RAO [REFERRED TO]
THOONGAVADAN V. PERUMAL GOUNDAN [REFERRED TO]
USMAN ALI V. EMPEROR [REFERRED TO]
RAM CHAND V. EMPEROR [REFERRED TO]
ABDUL WAHAB KHAN VS. MOHD HAMID ULLAH [REFERRED TO]
HEM CHANDRA BANERJI VS. ABDUR RAHAMAN [REFERRED TO]



Cited Judgements :-

RAGHUNATH SHAMRAO ALIAS KRISHNA RAO DESHPANDE VS. YADAV SAMBHAJI HATTIKAR [LAWS(KAR)-1958-9-14] [REFERRED TO]
ANGAPPA GOUNDER VS. KRISHNASWAMI GOUNDER [LAWS(MAD)-1958-4-9] [REFERRED TO]
CHATURGUN TURHA VS. JAMADAR MIAN [LAWS(PAT)-1960-12-11] [REFERRED TO]
HAMIR KHAN VS. JASWANT SINGH [LAWS(RAJ)-1969-9-10] [REFERRED TO]


JUDGEMENT

- (1.)THIS is a reference made by the Sessions Judge, Broach, recommending that a portion of the order passed under Section 147, Criminal P. C. , by the Resident Magistrate, First Class, Jambusar, should be set aside. This order was passed by the Magistrate on an application made to him by one Dahyabhai stating that he had a right of way to his field through the lands of the opponents and that the opponents had closed this way by putting up a hedge across it in one of their lands. After holding an inquiry, the learned Magistrate came to the conclusion that the applicant had proved the right claimed by him and that the dispute between the parties was likely to result in a breach of the peace. Accordingly he passed an order prohibiting the opponents from interfering with the exercise of the said right, until the rights of parties were decided by a competent Court. He also ordered the opponents to "forthwith remove the hedge", put up by them and "make a way by which carts, bullocks etc. might pass safely. " The Sessions Judge is of the opinion that this latter part of the order of the Magistrate is illegal and beyond his powers and has recommended that it should be set aside.
(2.)SUB-SECTION (1) of Section 147, Criminal P. C. , provides 'inter alia' that whenever a Magistrate of the first class is satisfied that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land within the local limits of his jurisdiction, he may make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend the Court and to put in written statements of their respective claims, and shall thereafter inquire into the matter in the mariner provided in Section 145. Sub-section (2) of this section states' that "if it appears to such Magistrate that such right exists, he may make an order prohibiting any interference with the exercise of such right. " there is a proviso to this sub-section, but it is not necessary to refer to it, as it is not material for the decision of this case. This Sub-section, therefore, empowers a Magistrate to make an order prohibiting interference with the exercise of a right. He can, therefore, order a person not to do something, e. g. , not to cause obstruction to, or not to interfere with, the use of a way. There is a material difference between asking, a person not to do something and asking him to do some positive act, e. g. to remove an obstruction already erected. The section does not empower a Magistrate to direct any person to do any positive or particular act. The Magistrate cannot, therefore, issue any mandatory order under this section. Section 147, as it stands today, was substituted for the original section in 1923. Under the old section, when the Magistrate found that a right existed, he could make an order "permitting such thing to be done, or directing that such thing shall not be done, as the case may be. " These words were construed as enabling a Magistrate to pass an order directing a party to do a positive act such as the removal of a bund or fence erected by one party, but which interfered with the exercise of the right of the other party; see -- 'karuppana v. Kandaswami', AIR 1914 Mad 712 (A) and -- 'ambica Prasad Singh v. Gur Sahay Siagh', 39 Cal 560 (B ). The relevant words in the present section are, however, different. The section now empowers a Magistrate to make an order "prohibiting any interference with the exercise of" a right. It does not empower him to direct anything to he done. Reference may also be made in this connection to S. 133. That section gives power to a Magistrate to pass orders both for the prevention of the commission of nuisances and for the removal of nuisances. Under that section the Magistrate can pass not only prohibitory orders, but also mandatory orders. It is, therefore, clear that whenever the Legislature intended that a Magistrate should have the power to pass both kinds of orders, it has used clear language to that effect. Form No. 24 in Schedule 5 to the Criminal P.
(3.)ALSO shows that an order under Section 147 must be in a negative form, prohibiting a person from doing something. (3) Mr. Patel has contended that the power to Issue a prohibitory order would include the power to issue a mandatory order under the doctrine of implied powers. This doctrine has been enunciated as follows in Maxwell on the Interpretation of Statutes, 1953 Edn. , at p. 361 :
"where an Act confers a Jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. "
At p. 362 it is observed :
"in the same way, when powers, privileges, or property are granted by statute, everything indispensable to their exercise or enjoyment is impliedly granted also. "
We do not think that this doctrine can be applied in this case, because in order to enable a Magistrate to direct a person not to do anything, it is not necessary that he should also have the power to direct that person to do something. The power to prohibit interference with the enjoyment of a right can be exercised without issuing any mandatory order.


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