1. This is a Rule calling upon the District Magistrate of 24 Perganas and the opposite party to show cause why an order made under Section 147, Criminal P.C., should not be set aside. The order in question directed the petitioner not to obstruct a certain drain and there was added to it an injunction directing him to remove a wall which he had already constructed. The first objection taken is to this mandatory injunction. There is nothing in Section 147 which would entitle the Magistrate to direct the petitioner to pull down this wall. As far as we have been able to understand, the case which the opposite party tried to set up was that he bad an easement by grant from the Port Commissioners. Be that as it may, the learned Magistrate did not base his order upon that alleged right. Instead of doing that he invented a purely imaginary right which the opposite party never claimed, a right to discharge water over the petitioner's land in any direction he pleased simply because his own property was slightly higher, such a right could not be made the basis of any order under Section 147.
2. Then the petitioner contended that there was no likelihood of a breach of the peace and I do not suppose that there ever was. The learned Magistrate entirely failed to come to any finding on that point. He merely discussed the question as to the probable existence of an epidemic. That was entirely irrelevant and would not give him any jurisdiction to make the order. Finally the Magistrate has ignored the Proviso to Sub-section (2). He has failed to find that the opposite party did actually discharge water in this way within three months of the institution of the case. For all these reasons we must make this Rule absolute. The order made by the Magistrate is set aside.
3. I agree.