Order.- This is a revision petition filed by the petitioner against the order, dated 9th April, 1958, passed by the District Magistrate, Belgaum, in Criminal’ Revision Application No. DC, MGA 4329, setting aside the order passed by the Sub-Divisional Magistrate, Belgaum City, dated 30th October, 1957, in Criminal Miscellaneous 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: That 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. Criminal Procedure Code, complaining that the respondents wrongfully and unauthorisedly 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. 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 Criminal Procedure Code. In that proceeding, eventually, the Taluk Magistrate, Belgaum, by his order, dated 14th August, 1956, bound over the opposite party, i.e., respondents for a term of six months to maintain peace, vide Exhibit I-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, Criminal Procedure Code, on 26th August, 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. 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), Criminal Procedure Code, that the interference unauthorisedly caused by party II in the exercise of right of user of the widows 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." 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, Criminal Procedure Code and that section 147, Criminal Procedure Code, 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." Against this order of the District Magistrate, Belgaum, the petitioner has preferred this Revision Petition before us. Likewise, I prohibit the revision applicants from making any addition or alteration to the existing obstructions. There shall be no order as to costs." Against this order of the District Magistrate, Belgaum, the petitioner has preferred this Revision Petition before us. It has been argued on behalf of the petitioner that section 438-A, clause (1)(Bombay Amendment Act XXXIX of 1955) of Criminal Procedure Code was the proper section under which the revision application ought to have been considered and clause (1) of section 438-A of the Criminal Procedure Code 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 sub-section (1-A) of section 147 of the Criminal Procedure Code provides that the provisions of section 145, Criminal Procedure Code, 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 Criminal Procedure Code and was wrong in assuming jurisdiction under sections 423, 426, 427 and 428 of the Code, 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 proceeding should be reversed or altered, he 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 sections 423, 426, 427 and 428”. Now section 147, Criminal Procedure Code, is not mentioned in clause (1) of section 438-A. While mentioning specifically other sections omission of section 147, Criminal Procedure Code, 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, Criminal Procedure Code, 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, Criminal Procedure Code, shall, so far as may be, be applicable in the case of an enquiry, i.e., under section 147, Criminal Procedure Code. It relates only to procedure which should be adopted while conducting the enquiry. But an order passed after such an enquiry will nevertheless be construed to be made only under section 147, Criminal Procedure Code. 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, Criminal Procedure Code. The mere fact that the provision of section 145 is made applicable to an enquiry under section 147, Criminal Procedure Code, 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 Criminal Procedure Code. The second argument advanced on behalf of the petitioner is hat due to the proceeding under section 107, Criminal Procedure Code and the order made thereunder by the Taluka Magistrate, the non-exercise of the right within the prescribed period was due to circumstances beyond the control of the petitioner. The second argument advanced on behalf of the petitioner is hat due to the proceeding under section 107, Criminal Procedure Code and the order made thereunder by the Taluka Magistrate, the non-exercise of the right within the prescribed period was due to circumstances beyond the control of the petitioner. Therefore, the District 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 Belkeri1. It is not disputed that in the present case, the scaffoldings were put up on or about the 26th February, 1956 and that it was not until 26th August, 1956, that the petitioner moved the police for an action under section 147 of the Criminal Procedure Code. It is, however, urged on behalf of the petitioner, relying on the decision in In re Basappa Rachappa Belkeri1, 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, Criminal Procedure Code, does not apply. It has been held by the Bombay High Court in the case cited above that where a person was prevented from exercising his right within the period prescribed because of the circumstances beyond his control-as by obstruction by the other party -the proviso to sub-section (2) of section 147, Criminal Procedure Code, has no application and the right of such person may be declared under section 147, Criminal Procedure Code. In Re Basappa Rachappa Belkeri1, it is observed at page 537 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. 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.” 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 Criminal Procedure Code in which eventually an order was passed by the Taluka Magistrate on 14th August, 1956. Thereafter in as much as the said order could not have any effect of the removal of the obstruction, the petitioner took action under section 147 of the Criminal Procedure Code on 26th August, 1956. In these circumstances merely on the ground that proceedings under section 107 of the Criminal Procedure Code, were pending, it cannot be said that non-exercise of the right within the prescribed period was due to circumstances beyond the control of the petitioner. There was nothing to prevent the petitioner from taking action under section 147, Criminal Procedure Code, nor there was there 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. 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. Balakrishna2, 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, Criminal Procedure Code. 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, Criminal Procedure Code. Lastly, it has been argued that the lower Court has erred in holding that section 147, Criminal Procedure Code, 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, Criminal Procedure Code 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. Hamidullah3, Thoongavadan v. Permual4, Ghumanda Singh v. Emperor5. Ram Dhan v. Barhamdeo Lal.6 There is a conflict of opinion amongst the different High Courts on the question whether a Magistrate has jurisdiction under section 147, Criminal Procedure Code, 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 Hemchandra Banerji v. Abdur Rahman1, Emperor v. Abdulla2, and Shantilai v. Dahyabahi3. But the Madras, Lahore and Allahabad High Courts have held that a Magistrate has such a jurisdiction, vide Thoongavadan v. Perumal4, Venkanna v. Venkatasurya5, Ghurnanda Singh v. Emperor6 and Abdul Wahab Khan v.Mohd. Hamidulla7. To my mind, a Magistrate is authorised to pass a mandatory order under section 147, Criminal Procedure Code, 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 Abdul Wahab Khan v. Md. Hamidulla7, at page 241. “No doubt, under section 147, Criminal Procedure Code, 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, a Magistrate has power to pass an order for the removal of an obstruction, if without its removal the prohibitory order cannot be effectively enforced. But in order to make the prohibitory order effective, as has already been discussed, a Magistrate has power to pass an order for the removal of an obstruction, 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.” Thus to my mind the view expressed in Abdul Wahab Khan v. Mohd. Hamidulla7 is preferable to the view taken by the High Courts of Calcutta, Nagpur and Bombay. Therefore, the lower Court was not justified in holding that a Magistrate had no jurisdiction to pass a mandatory order under section 147, Criminal Procedure Code. But as mentioned above, the action under section 147, Criminal Procedure Code, has not been taken by the petitioner within the period prescribed in the proviso to section 147, clause (2), Criminal Procedure Code. Thus the non-exercise of the right of user by the petitioner within three months before the institution of the enquiry prevents an order being passed in his favour. Consequently the petition is unmaintainable. It is, therefore, dismissed. No order as to costs. S.V.S. ----- Petition dismissed.