- (1.)THIS is a reference by Ratnaswami J. , on the question as to whether Section 147 cri. P. C. , empowers a Magistrate only to pass a prohibitory order, which is generally in a negative form, or whether it empowers a Magistrate to issue a positive order to secure the exercise of the right of the aggrieved party, who complains of the infringement of his right.
(2.)THE reference has arisen out of an order passed by the learned Ex-Officio First class Magistrate, Namakkal, in regard to a channel concerning which a dispute arose between the A and B parties and which channel at the time of the enquiry before the Magistrate had become obliterated and had ceased to be a channel functioning as such. The operative portion of the order against which a revision was preferred before the learned Judge is contained in paragraph 9 of the order passed by the learned Magistrate. After reviewing the entire evidence let in before him the learned First Class Magistrate of Namakkal observed therein as follows :
"the learned counsel of the B party finally argued that this Court has no jurisdiction to pass a mandatory order under Section 147 Cr. P. C. , since the channel has been destroyed. He has also quoted several rulings of various High Courts outside the Madras State. But I find that the Madras high Court's orders, Venkanna v. Venkata Surya Neeladri Rao, AIR 1930 mad 865 (A) and Thoongavadan v. Perumal Coundan, AIR 1941 Mad 752 (B), permit an order under Section 147, Cr. P. C. , in the nature of mandatory injunction. The right of A-party to take water from Athu tholai in S. No. 299/4 along with the B party's land has been clearly established from the revenue records and the evidence. I hereby order under Section 147 (2) Cr. P. C. , prohibiting any interference with the exercise of such rights of A party to take water from Athu tholai to irrigate his lands S. No. 299/3".
Ramaswami J. , in his order of reference observed that this paragraph in the order of the learned Magistrate gave rise to two divergent views, namely, whether section 147 covered or did not cover a case of an order directing somebody to remove an obstruction, if the removal of that obstruction was necessary to prevent that person from interfering with-the right of the person asking for the order. The learned Judge has further observed,
"on this point the High Courts have taken conflicting views. The submission made by the learned advocate, Mr. Mohan kumaramangalam, that it is not possible to pass an order directing somebody to remove an obstruction, if the removal of that obstruction is necessary to prevent that person from interfering with the right of the person asking for the order, is supported by a Full Bench decision of the calcutta High Court. The learned advocate Mr. Nagarajan seeks to submit the opposite view, which is supported by a Full Bench decision of the Allahabad High Court. On this point other High Courts also have taken different views. "
Then the learned Judge discussed the decisions of the various High Courts commencing from In the Matter of Alfred Lindsay, ILR 4 Mad 121 (C), and ending with Abdul Wahab Khan v. Md. Hamid Ullah. (FB) (D ).
(3.)IN ILR 4 Mad 121 (C), a Bench of this Court over which the Chief Justice presided held that an ex/parte order, purporting to be made under Section 532 Cr. P. C. , directing the party in possession not to retain possession of the land until he should obtain the decision of a competent civil Court adjudging him to be entitled to exclusive possession, with a further direction to remove the obstruction was bad in law. This decision was under the old Code, that is Act X of 1872