The central legal point established in the judgment is the interpretation and application of Section 147 of the Criminal Procedure Code, specifically the power of the Magistrate to make orders prohibiting interference with the exercise of rights.

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 petitioners 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 Magistrates 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 petitioners 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