Order of Reference: — There is a preliminary point which arises for consideration in Criminal Revision Case No. 871 of 1957. The short point for determination in this revision arises from an order made by the learned ex officio First Class Magistrate, Namakkal. in regard to a channel concerning which a dispute the A and B parties and which at the time of this enquiry had become an obliterated channel and had ceased to be a channel functioning as such.

Paragraph 9 of the Order of the learned Magistrate reads 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, Criminal Procedure Code, 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 order in Venkanna v. Venkata Surya Neeladri Rao1 and Thoongavadan v. Perumal Goundan2 permit an order under section 147, Criminal Procedure Code, in the nature of mandatory injunction. The right of A party to take water from Athu tholai in S. No. 299/4 along the B party’s land has been clearly established from the revenue records and the evidence. I hereby order under section 147 (2), Criminal Procedure Code, 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”.

In other words this paragraph gives rise to two divergent views, namely, whether section 147 covers or does not cover a case of 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. 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. The following are the principal decisions:

“The earliest Madras decision is In re Lindsay3. In that decision Sir Charles Turner, C.J. and James, J. held : ‘Where a complaint was made to a Magistrate that an obstruction had been raised and existed on land reserved by Government and dedicated as a public road, an ex parte order, purporting to be made under section 532 of the Code of Criminal Procedure, directing the party in possession not to retain possession of the land until he could 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.”

In Karuppanna Goundan v. Kandaswami Goundan4, Sadasiva Iyer and Spencer, JJ., (before 1923 amendment of the Criminal Procedure Code) held that an order to remove obstruction to public pathways could validly be passed under section 147.

In Venkanna v. Venkata Surya Neeladri Rao1, Krishnan Pandalai, J., held:

"The Magistrate has power, under section 147, Criminal Procedure Code, to pass an order directing the removal of obstruction to pathways, even though such an order may be in the nature of a mandatory injunction. The Amendment Act of 1923 (XVIII of 1923) has not altered the law in this respect and Karuppanna Goundan v. Kandaswami Goundan4 is still good law.“

In Thoongavadan v. Perumal Goundan2, Lakshmana Rao, J., held:

”Under section 147 it is open to the Magistrate to direct that a dam or a bund put up by a party hould be removed but he cannot further direct that the party should not cause any obstruction to the flow of water.“

A Full Bench of the Allahabad High Court in Abdul Wah

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