BADRIDAS AGARWALLA Vs. SOHAN LAL OSWAL

JUDGEMENT

(1.) This is a reference under Section 438, Criminal P.C., by the learned Sessions Judge of the Assam Valley Districts in which he recommends that a part of an order passed by a trying Magistrate in proceedings under Section 147, Criminal P.C., should be set aside. One Sohan Lal and another had been called upon to show cause why they should not be restrained from interfering with a right of way claimed by the first party, one Badridas Agarwala. The case for the first party was that he was the owner of a latrine which was connected with the public road by means of a narrow pathway over which the municipal sweepers used to pass and which was the only access which the sweepers had to this latrine. Upon the evidence in the case the learned Magistrate found as a fact that the first party had established a right of way over this pathway, and he thereupon went on to pass the order which is the subject, matter of this reference and which is in the following terms: I accordingly direct that the above sweeper's passage, viz., a strip of land 2? it. wide running from Badri's present pucca enclosure, alongside the southern pucca wall of Hanuman Bux, through the fencing in Dag 476, right up to the road in the west, be opened for use of the first party's latrine and that the 2nd party be prohibited from interfering with its use, until the whole thing is decided by a Civil Court of competent jurisdiction.

(2.) It is stated and not denied that the second party had erected a fencing over the pathway thus interfering with the right of way claimed on behalf of the first party, and it is contended that the order just quoted is really a mandatory injunction by reason of which the second party has been ordered to remove the fencing. The learned Sessions Judge is of the opinion that such an order cannot be passed under Section 147(2) of the Code and he has drawn our attention in his letter of reference to two decisions of this Court reported respectively in Hari Mati Dasi V/s. Hari Dasi Dasi and Tarini Mohan V/s. Dwarka Nath . The matter has been argued at some length before us and we are indebted to Mr. Carden Noad who appears in support of the reference for yet another decision which is reported in Haradhone Mukherjee V/s. Brojendra Nath Rai . The case reported in Tarini Mohan V/s. Dwarka Nath is also reported in 38 CWN 476.

(3.) In Hari Mati Dasi V/s. Hari Dasi Dasi it was held that Sub-section (2) of Section 147, Criminal P.C., does not give a Magistrate any power of directing one of the parties to do a positive act by way of mandatory injunction. In that case the facts were that the first party complained that the second party had raised a pucca wall on her land blocking the windows in the house of the first party and thereby shutting out light and air from the western room in that house. The Magistrate directed that the second party, Hari Dasi Dasi should demolish the new wall within the period of one month from the date of the order and that she should not put up another wall blocking the windows of Hari Mati's house till she was adjudged by a competent Court to have the right to do so. In the judgment of this Court it was pointed out that if the order of the Magistrate were to stand, the second party would have to bring a suit for a declaration that she had the right to rebuild the wall after demolishing it in obedience to the order of the Magistrate, which would be a suit of a somewhat novel character in which, if successful, the plaintiff could get no relief for the loss caused by the demolition. We are convinced that in the special facts of that case the order passed by this Court was the only order which could have been made. In so far, however, as that decision purported to lay down that a mandatory order could not in any circumstances be passed under Sub-section (2) of Section 147 of the Code there is, as will presently be seen, a conflict of judicial opinion. This case was followed by the case in Tarini Mohan V/s. Dwarka Nath in which the mandatory order was for the removal of a structure described as a chapra which we have been given to understand was a shed with a corrugated iron roof. The learned Judges who disposed of Tarini Mohan V/s. Dwarka Nath would seem to have considered themselves bound by the decision in Hari Mati Dasi V/s. Hari Dasi Dasi . In Haradhone Mukherjee V/s. Brojendra Nath Rai it was observed that there was nothing in Section 147 which would entitle the Magistrate to direct the petitioner to pull down a wall which was said to obstruct the passage of water.