Krishnan Pandalal, J.
1. This is a petition by the first counter-petitioner in the Lower Court to revise an order of the Sub-Divisional Magistrate of Peddapur passed under Section 147 of the Criminal Procedure Code 'prohibiting the respondents from putting up any bunds across the channel in their field and from interfering with the petitioner's removing the obstructions already put up,' namely, 'the four small cross-bunds and that part of the bund higher up which is across the channel and no further.'
2. Three objections are raised to this order: (1) that there was no likelihood of a breach of the peace on which such an order could be justified; (2) that the Magistrate had not found, as he ought to have done, that the petitioner was entitled to the use of the water flowing down the channel in question; and (3) that the terms of the order passed by the Magistrate are in violation of Section 147 according to which an order in the nature of a mandatory injunction ought not to be passed.
3. As to the likelihood of a breach of the peace, the Magistrate has in my opinion given good reasons for thinking that there was such likelihood. Proceedings were started on the 27th December, 1928, by an application by the petitioner in the Magistrate's Court for action under Section 144. The counter-petitioners sought to defeat that petition by the plea that the apprehended obstruction to the water-course was already completed, but the petitioner represented that such was not the case. Thereupon, on the 19th February, 1929, a preliminary order under Section 147 was passed, the previous order under Section 144 being vacated. In these circumstances the Magistrate was justified in thinking that the danger of a breach of the peace was not over.
4. As to the right of the petitioner to the flow of water down this channel, it was not necessary for the Magistrate to find that a right of easement strictly so-called was established. Section 147 says 'Whether such right be claimed as an easement or otherwise'. All that he had to find and which he has in fact found, is that the petitioner had been for a long time using the water flowing down this channel and had in fact used it during the last monsoon.
5. The last is perhaps the most important objection and arises upon the form of words, used by the Magistrate in framing the order, which I have already set forth at the beginning of this judgment. To the first portion no objection can be taken because it merely prohibits the counter-petitioners from putting up any bunds across the channel in their field. But objection is taken that the latter half of the order, where it prohibits interference with the petitioner's removing the obstructions already put up, amounts really to an order requiring the counter-petitioners to remove the bund which they have already put up and this, it is contended, the Magistrate has no power to do. This portion of the order as it stands indicates that the Magistrate thought that the petitioner might lawfully remove any portion of the bund which was obstructing the flow of the water and that he intended to prevent the counter-petitioners from interfering with the petitioner in exercising such right of removing the obstruction. The order does not really require the counter-petitioners to do anything. All that it says is that if the petitioner removes the obstruction, the counter-petitioners are to do nothing. I think this form of order is unsuitable, if not objectionable, if for no other reason than that it is likely to produce a recurrence of breach of the peace which such orders are intended to prevent. It contemplates the petitioner going upon the counter-petitioners' land and removing the bund and it requires the counter-petitioners to let him do so without hindrance. Such a situation is easily capable of producing a breach of the peace. That portion of the order therefore requires amendment.
6. But I will first deal with the objection of the learned advocate for the petitioner here (counter-petitioner below) that an order in the nature of a mandatory injunction must not be passed under Section 147. For this reliance was placed upon a decision of a Bench of the Calcutta High Court in Hari Mati Dasi v. Hart Dasi Dasi (1925) 30 C.W.N. 238. In that case the. first party complained that the second party raised a wall on her own land blocking the windows of the house of the first party thereby shutting out light and air from the rooms of the house. The Magistrate having found that light and air was obstructed as alleged made an order upon the second party that she should demolish the new wall within a period of one month. The learned Judges said that Sub-section 2 of Section 147 does not give the Magistrate any power directing one of the parties to do a positive act by way of a mandatory injunction directing him to demolish the wall built by her, and they further said that the power given under Section 147(2) is analogous to the power of a Civil Court to grant a temporary injunction. Against that decision of the Calcutta High Court there is the decision of a Bench of this Court in Karuppanna Goundan v. Kandaswami Goundan. : (1914)26MLJ233 In that case a pathway had been obstructed and the Magistrate had ordered that the obstruction, which was a fence, should be removed by the party who had put it up. The point being raised that that order was incorrect on the same ground as that now urged for the petitioner here, this Court held after referring to two earlier decisions of this Court that such an argument was not maintainable. Their Lordships said that they were not prepared to follow those decisions if it was intended to decide therein that the fact that Section 133 of the Criminal Procedure Code expressly provides for an order by the Magistrate directing the removal of obstruction to pathways necessarily implies that a similar order cannot be passed in proceedings taken under Section 147 of the Criminal Procedure Code. This decision of a Bench of this Court is binding upon me. But it is said that that decision was given under the old Criminal Procedure Code and that Section 147 as amended in 1923 makes such an order illegal though it may have been possible under the old Code. With that argument I cannot agree. Section 147 of the Code of Criminal Procedure, before it was amended in 1923, dealt, like the present section, with disputes concerning the right of use of any land or water and it enabled the Magistrate, if such right was found to exist, to make an order 'permitting such a thing to be done or directing that such a thing should not be done. The corresponding provision of the section as it now stands is that if the dispute exists 'regarding any alleged right of user of any land or water' the Magistrate is empowered on his being satisfied about the existence of such a right, whether it be claimed as an easement or otherwise, to 'make an order prohibiting any interference with the exercise of such rights.' The order under the old section was directed to the person alleging that he was entitled to the right. The order under the new section is where the right exists directed to the person who is interfering with the right. Such an order is valid so long as it merely prohibits the interference with the exercise of the rights. I do not see how from this difference any inference is to be derived as to the propriety or otherwise of what may be generally called mandatory injunctions. Indeed Form No. 24 in Schedule V of the Criminal Procedure Code seems rather to favour the argument that what might in effect amount to a mandatory injunction is permissible. In that form, in the second paragraph, the words of the order that the Magistrate may pass are 'I do order . . . shall not take (or retain) possession of the said land. (or water) to the exclusion of the enjoyment of the right of use aforesaid.' That form is applicable to the use of land or water and it contemplates an order against a person who has interfered with another man's use of land or water that he shall not retain possession of that land or water in violation of that user. In one sense it may be said that that is a mandatory injunction because it requires the person enjoined to give up possession to the other party. I do not see what objection can be raised to using the same form as against a person who has put up an obstruction to the flow of water to which another man is entitled, modified in the following way: 'I order that . . . shall not retain any obstruction to the flow of water along the said channel to the exclusion of the enjoyment of the right of user of . . . .' or words to that effect; or alternatively 'I order that...shall not retain possession of the said water to the exclusion of the enjoyment of the right of user of ...' Either form would amount to the same thing in effect and involve upon the person enjoined the removal of any obstruction which he had put up. I am, therefore, unable to say that the amendment of Section 147 has had any effect in so far as making the decision in Karuppanna Goundan v. Kandaswami Goundan : (1914)26MLJ233 inapplicable.
7. As, however, the form of order used by the Magistrate is not suitable, that order will be amended by omitting the words 'from interfering with the petitioner's removing the obstructions already put up' and substituting therefor the words 'from retaining any obstruction to the petitioner's use of the water flowing along the channel in their field.' With this amendment the petition is dismissed.