P L D 1956 (W (PLP)

MUHAMMAD SHAFI, J.‑On the 9th of March 1954, Asil Rab of Isak Khumari, Tehsil Karak, District Kohat, lodged a complaint against Swabur Rahman, Fazlur Rahman, Khushmir Gul and Sheraz Gul under section 147 Criminal P. C., com plaining that the respondents had interfered with his right of the user of water from Algada Khaisri, to irrigate his field No. 83 by constructing a wall and diverting the water to Khasra No. 717/638/77, and that a dispute likely to cause a breach of the peace regarding the alleged right of the user existed between the parties, and consequently action under the above section was inevitably essential. After a preliminary inquiry due notices were issued to the respondents, out of whom Swabur Rahman and Fazlur Rahman only put in a joint written statement, denying the petitioner's allegations. The learned trial Magistrate, after recording the evidence and holding the inquiry which he considered necessary under the circumstances of the case, passed the following order:‑

6. I therefore, order the respondents 1 and 2 to restrain themselves from interfering in any way with the due exercise of the right enjoyed by the petitioners whereby he irrigates his field No. 83 from the surplus water of the Mela Algada after the irrigation of field No. 82 belonging to the respon dent No. 1 which lies Sariwarkh of the field of the petitioner uptil the respondents obtain a decision in their favour from a Civil Court of competent jurisdiction. The respondents are also directed to remove the obstruction whereby the surplus water of field No. 82 has diverted to field No. 718/638/77". Swabur Rahman and Fazlur Rahman filed a revision petition against the above order in the Court of the District Magistrate Kohat, who dismissed it on the 14th of July 1955. These two gentlemen have now come up in revision to this Court. The learned counsel, appearing for the petitioners, has raised three grounds before me viz., (1) that the learned trial Magistrate before issuing notice to the respondents was not competent to hold a preliminary inquiry, (2) that the trial Court should have found that the right to use the irrigation water was exercised by the complainant within three months of the preliminary order, and (3) that the learned Magistrate had no jurisdiction to order respondents Nos. 1 and 2 to remove the wall. So far as the first objection is concerned, I have really not been able to understand the propriety of it. The learned Magistrate when he received the complaint, instead of issuing the notice at once, sent the complaint to certain revenue officers to hold inquiry at the spot and report to him whether there would be any justification for him to issue notice to the respondents. It was only when the report was received in favour of the complainant that the learned trial Magistrate took steps to hold inquiry under section 147 Criminal P. C. I do not see how is this conduct of the learned Magistrate against law. All that can be said is that he was more cautious and prudent in taking action under the extraordinary provi sions of the Criminal P. C., and did not act in a perfunctory manner. This is certainly commendable. As regards the second objection, under the proviso to section 147 Criminal P. C., all that the Magistrate has to see is that the complainant, if the right is exercisable at all times of the year, has exercised such right within three months next before the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occa sions, when the right was exercised during the last of such seasons or on the last of such occasions before such institution. The preliminary inquiry does not come into play at all. In this case it was alleged by the complainant that he was entitled to irrigate his field from the flood water, and that he had used this water a few months before the institution of this inquiry. This part of the complainant's statement was not in any way rebutted by the respondents, and it was on account of this fact that this objection was not attached much importance to by the trial Court as well as by the District Magistrate. The above two objections are hereby rejected. So far as the third objection is concerned, the learned counsel for the petitioners has cited a Full Bench authority of the Calcutta High Court Hem Chandra Banerji v. Abdur Rahman (A I R 1942 Cal. 244), in which it was held that under section 147 Criminal P. C. a Magistrate has no power to issue a mandatory injunction directing the removal of an existing obstruction. In the Criminal P. C. a form of order, which a Magistrate is competent to pass under section 147 Criminal P. C. is given at serial No.

24. Under section 555 Criminal P. C., it is this form, which ordinarily a Magistrate should use with such varia tion as the circumstances of the case require. This form does not entitle the Magistrate to pass an order for the demolition of the wall. In my view, however, if an order is passed under section 147 Criminal P. C. prohibiting interference with the exercise of the right of water, then the removal of the obstruc tion which interferes with such right by the offenders, would automatically follow; otherwise the order passed under section 147 Criminal P. C. would become completely ineffective, which surely cannot be the intention of law. It is the' duty of the Judge to place such construction on a certain provision of law as shall suppress the mischief and advance the remedy. If the express words used in a certain section fall short of the whole object of the legislature, a more extended meaning should be attributed to the words, provided of course they are fairly susceptible to it. The result is that I must accept this revision petition, though technically only, and substitute the following order for the order passed by the learned trial Magistrate: ‑ "A dispute having arisen concerning the right of use of water for the irrigation of Khasra No. 83, situated within the limits of Kohat District, the possession of which water is claimed exclusively by Asil Rab, and it appearing to me, on due inquiry into the same, that the said water has been opened to the enjoyment of such use by Asil Rab, and that the said use has been enjoyed within three months of the institution of such inquiry, I do order that the said Swabur Rahman and Fazlur Rahman, or anyone in their interest, shall not take possession of the water to the exclusion of the right of use aforesaid until they shall obtain the decree or order of competent Court adjudging them to be entitled to exclusive possession." K. M. A. Petition accepted.