ORDER
1. This is a revision petition filed by the Petitioner against the order dated 9-4-1958 passed by the District Magistrate, Belgawn, in Criminal Revision Application No. D.C./MGA--4329, setting aside the order passed by the Sub-Divisional Magistrate, Belgaum City dated 30-10-1957 in Criminal Mis. Case No. 4 of 1956. In order to appreciate the arguments advanced, it is necessary to mention the facts of the case which may be briefly stated as follows:
2. The houses of the parties are adjacent to each other. It is stated that there are four windows on the second floor and two windows on the third floor of the petitioner's house. The house of the respondents, which is adjacent to the western wall of the petitioner's house, has a low roof and the windows of the petitioner's house are above its level. The petitioner made an application to the Sub-Divisional Magistrate, Belgaum City under Section 147 Cr. P. C. complaining that the Respondents wrongfully and unauthorized obstructed the use of the user to the free light and air by scaffolding his windows with tin sheets and has been asked to remove the obstruction and that the Respondents were threatening the petitioner. He alleged that he has been having the user of the air and light through his windows since he purchased the house in 1919 and that the action of the opposite party was likely to cause breach of peace.
3. It appears that immediately after the obstruction being caused by the other party, the petitioner had filed a complaint with the police which took the shape of proceedings under Section 107 of the Cr. P. C. In that proceeding, eventually, the Taluk Magistrate, Belgaum by his order dated 14-8-1956, bound over the opposite party, i.e. Respondents for a term of six months to maintain peace. Vide Exhibit 1 E.
But, as the order of the Taluka Magistrate had not the effect of removal of obstruction, the petitioner made an application under Section 147 Cr. P. C. on 26-8-1956. The Sub-Divisional Magistrate, Belgaum City issued a notice to the opposite party and after necessary enquiry, found that the windows had been used by the petitioner for several years past and he had the right to the use of air and light through them.
He further found that it has been exercised by him within three months next prior to the institution of the proceedings and that the opposite party had recently caused obstruction by scaffolding the windows of the petitioner. He also found that the action of the opposite party was likely to cause breach of peace. He passed the following order:
'I therefore direct under Section 147 Clause (2), Cr. P. C. that the interference unauthorisedly caused by party II in the exercise of right of user of the windows by party I should be prohibited by the removal of the tin sheets, I further direct that the removal of the tin sheets should be effected within a period of 15 days from the date of this order'.
4. Against this order of the Sub-Divisional Magistrate, the opposite party (respondents) made an application in revision to the District Magistrate, Belgaum, who was, however, of the view that the right claimed by the petitioner had not been exercised within three months prior to the institution of the proceedings under Section 147 Cr. P. C. and that Section 147 Cr. P. C. did not empower the Magistrate to pass a mandatory order directing removal of the obstruction; he passed the following order:
'In the end, subject to any final order that may be passed by the Civil Court, I prohibit the respondent from taking law into his own hands and interfering with the scaffolding put up by the revision applicants. Likewise. I prohibit the revision applicants from making any addition or alteration to the existing obstructions. There shall be no order as to costs'.
5. Against this order of the District Magistrate, Belgaum, the petitioner has preferred this Revision Petition before us.
6. It has been argued on behalf of the petitioner that Section 438-A, Clause (1) (Bombay Amendment Act XXXIX of 1955) of Cr. P. C. was the proper section under which the revision application ought to have been considered and clause (1) of Section 438-A of the Cr. P. C. does not empower the District Magistrate to decide the revision application, but only makes it incumbent on him to report the result of the examination of the proceedings to the High Court.
It is further argued in this connection, that Subsection (1-A) of Section 147 of the Cr. P. C. provides that the provisions of Section 145 Cr. P. C. shall, as far as-may be, be applicable in the case of such an enquiry. Hence Clause (1) of Section 438-A was the proper section under which the lower Court ought to have considered the revision application and reported the result of the examination of the record to the High Court for passing final orders. It is urged that the lower Court has erred, in considering the revision application made before it under Section 438-A(2) of the Cr. P. C. and was wrong in assuming jurisdiction under Ss. 423, 426, 427 and 428 of the Code.
7. The relevant portion of Section 438-A (Bombay Amendment Act, XXXIX of 1955) runs as follows:
'On examining under Section 435 or otherwise the record of any proceeding:
(1) if such proceeding is in respect of an order made under Section 118, 122, 143, 144 or 145 and the District Magistrate thinks that the order made in such proceedings should be reversed or altered, be shall report for the orders of the High Court the result of such examination;
(2) if such proceeding is in respect of an order made under any other section, then in the case of such proceeding the District Magistrate may, subject to the provisions of Sub-section (2) of Section 436, exercise any of the powers conferred on a Court of Appeal by Ss. 423, 426, 427 and 428'.
8. Now Section 147 Cr. P. C. is not mentioned in Clause (1) of Section 43S-A. While mentioning specifically other sections omission of Section 147 Cr. P_ C. in it clearly indicates Clause (1) of Section 438-A is not applicable to an order made under Section 147. The words of Clause (1) of Section 438-A should be given their plain meaning and there is no justification for including Section 147 in it.
The words used in Clause (2) of Section 438-A 'if such proceeding is in respect of an order made under any other section' also go in support of the same construction. They are wide and general in terms which mean that if the proceeding is in respect of an order made under any other section, than those specified in Clause (1) of Section 438 Cr. P. C. then the provision of Clause (2) would be applicable to it. All that Sub-section (1-A) of Section 147 provides is that the provisions of Section 145 Cr. P. C. shall, so far as may be, applicable in the case of an enquiry, i.e., under Section 147 Cr. P. C.
It relates only to procedure which should be adopted while conducting the enquiry. But an order passed after such an enquiry will nevertheless be, constructed to be made only under Section 147 Cr. P. C. Thus therefore the word 'proceeding' in this Section (i.e. Section 147) will be regarded in respect of an order made under Section 147 and not under Section 145, Cr. P, C.
9. The mere fact that the provision of Section 145 is made applicable to an enquiry under Section 147 Cr. P. C. would not attract the application of the provision of Clause (1) of Section 438-A to it. Thus, it cannot be said that the lower Court was wrong in considering the revision application under Clause (2) of Section 438-A of Cr. P. C.
10. The second argument advanced on behalf of the petitioner is that due to the proceeding under Section 107 Cr. P. C. and the order made thereunder by the Taluka Magistrate, the non-exercise of the right within the prescribed period was due to the circumstances beyond the control of the petitioner. Therefore, the D strict Magistrate was not right in holding that the petitioner has not exercised the right within three months next before the institution of the enquiry and has not properly construed the case in In re Basappa Rachappa Belkeri AIR 1925 Com 536.
11. It is not disputed that in the present case, the scaffoldings were put up on or about 26-2-1956 and that it was not until 26-8-1956 that the petitioner moved the police for an action under Section 147 of the Cr. P. C. It is, however, urged on behalf of the petitioner, relying on the decision in AIR 1925 Bom 536, that inasmuch as the non-exercise of the right within the proper period was due to circumstances beyond the control of the petitioner, the proviso to Sub-section (2) of Section 147 Cr. P. C. does not apply.
12. It has been held by the Bombay High Court in the case cited above (AIR 1925 Bom 536) that where a person was prevented from exercising his right within the period proscribed because of the circumstances beyond his control as by obstruction by the other party the proviso to Sub-section of Section 147 Cr. P. C. has no application and the right of such person may be declared under Section 147 Cr. P. C. In AIR 1925 Bom 536, it is observed at page 337 as;
'The right would have been exercised during the last of the proper seasons before the institution of the enquiry, but for the obstruction of the opponents. The petitioners acted in a manner which deserves our approval, in desisting from the procession, which might have led to a breach of the peace, and promptly going to the proper authorities to obtain a removal of this obstruction. In the circumstances the non-exercise of the right within the proper period was due to the circumstances beyond their control, whereas the proviso obviously contemplates a non-exercise for reasons within the control of the persons claiming the right.'
13. In the present case, as stated above after the scaffoldings were erected the petitioner made a complaint to the police complaining obstruction to the user of air and light. The police initiated proceedings under Section 107 of the Cr. P. C. in which eventually an order was passed by the Taluka Magistrate on 14-8-1956. Thereafter inasmuch as the said order could not have any effect of the removal of the obstruction, the petitioner took action under Section 147 of the Cr. P. C. on 26-8-1956.
In these circumstances merely on the ground that proceedings under Section 107 of the Cr. P. C. were pending it cannot be said that non-exercise of the right within the prescribed period was due to Circumstance beyond the control of the petitioner. There was nothing to prevent the petitioner from taking action under Section 147 Cr. P. C, nor there was anything to prohibit the Court either from proceeding under that section. Thus the ruling relied on by the petitioner is not applicable to the present case.
14. Proviso to Section 147, Sub-section (2) of the Code clearly lays down that the period of three months is to be reckoned from the date of the institution of the enquiry. It should be in my opinion, construed strictly and I find myself in agreement with the view taken by the Madras High Court in Vellayan Chetty v. Balkrishna Nadar : AIR1931Mad495 , that the words of the proviso of Section 147 (Sub-section 2) should be given their plain meaning. Therefore, in my opinion, the District Judge was justified in holding that the right had not been exercised by the petitioner within three months before the institution of the proceedings so as to bring the case within the proviso to Sub-section (2) of Section 147, Cr. P. C.
15. Lastly, it has been argued that the lower Court has erred in holding that Section 147 Cr. P.C. did not authorise the Magistrate to pass a mandatory order directing the removal of an obstruction. It is urged that the finding of the lower Court on the point of passing mandatory order under Section 147, Cr. P. C. is wrong as that is the only way by which the wrongful obstruction can be removed.
Reliance is placed mainly on the cases Abdul Wahab Khan v. Mohd. Hamid Ullah : AIR1951All238 , Thoongavadan v. Perumal Goundan : AIR1941Mad752 , Ghumanda Singh v. Emperor, AIR 1941 Lab 210, and Ram Dhan v. Barhamdeo Lal, AIR 1929 Pat. 351. There is a conflict of opinion amongst the different High Courts on the question whether a Magistrate has jurisdiction under section 147 Cr. P. C. to issue orders in the nature of mandatory injunction. The High Courts of Calcutta, Nagpur and Bombay have held that a Magistrate has no jurisdiction, vide Hem Chandra v. Abdul Rahaman : AIR1942Cal244 , King-Emperor v. Abdullah AIR 1919 Nag 275 and Shantilal v. Dahyabhai AIR 1954 Bom. 363.
Rut the Madras, Lahore and Allahabad High Courts have held that a Magistrate has such a jurisdiction, vide : AIR1941Mad752 , Venkanna v. Venkata Surya Neeldri Rao AIR 1930 Mad 865 AIR 1941 Lab. 210, and : AIR1951All238 .
16. To my mind, a Magistrate is authorised to pass a mandatory order under Section 147 Cr. P. C. directing the removal of an obstruction and it must be presumed that the power conferred on the Magistrate is an effective power and not a nominal one, as observed in : AIR1951All238 .
'No doubt, under Section 147, Cr. P. C. the jurisdiction of the Magistrate is confined only to the passing of prohibitory orders which are generally in a negative form and he has no power to issue every kind of positive orders to secure the exercise of the right of user by one party. But in order to make the prohibitory order effective, as has already been discussed, Magistrate has power to pass an order for the removal the prohibition, if without its removal the prohibitory order cannot be effectively enforced. Thus a Magistrate has no power to order a party to rebuild a drain where he has demolished one. But he has power to order the removal of an obstruction, like a wall, so that the exercise of the right of user by the other party may not be interrupted.'
17. Thus to my mind the view expressed in : AIR1951All238 is preferable to the view taken bythe High Courts of Calcutta, Nagpur and Bombay,Therefore the lower court was not justified in holdingthat a Magistrate had no jurisdiction to pass a mandatory order under Section 147 Cr. P. C. But asmentioned above, the action under section 147 Cr.. C. has been taken by the petitioner within theperiod prescribed in the proviso to Section 147, Clause (2),Cr. P. C. Thus the non-exercise of the right of userby the petitioner within throe months before theinstitution of the enquiry prevents an order beingpassed in his favour. Consequently the petition isunmaintainable. It is therefore dismissed. No orderas to costs.
18. Petition dismissed.