CHAMUNNY v. STATE OF KERALA — 1978 DIGILAW 317 (KER)

Judgment :- 1. This petition is filed by the respondent in M. P. No. 6 of 1978 on the file of the Sub Divisional Magistrate, Palghat. Respondents 2 to 4 were the petitioners therein. The facts of the case are as follows: One K. V. Mohandas, brother of the second respondent, surrendered to Government certain items of property being the excess land in his possession over the ceiling area fixed under the Kerala Land Reforms Act. Two items so surrendered were assigned to the present petitioner. The items so assigned consisted of 261/2 cents in Sy. No. 1147/1 and 281/2 cents in Sy. No. 223 of Thiruvazhiyad village in Chittoor Taluk. These items adjoin the kalam of Mohandas who surrendered them. The petitioner put up a small but in Sy. No. 1147. Respondents 2 to 4 are possessed of both wet lands as well as dry lands at some distance from the petitioner's plot in Sy. No. 1147/1. The wet lands are being irrigated by supply of water from the Pothundy Main Canal maintained by the Government through sluice No. 23 installed by the Irrigation Department. Sluice No. 24 is situated south of the petitioner's plot. According to the petitioner, it supplies water to the lands on the southern side of the petitioner's plot in Sy. No. 1147/1. The petitioner would contend that, respondents 2 to 4 are not entitled to get water let out from sluice No. 24 as their lands are situated within the ayacut area of sluice No. 23. Respondents 2 and 3 and the second respondent's son are alleged to have tried to cut open a canal in Sy. no. 1147/1 and the adjacent property of Mohandas and his brother Rajasekharan to take water let out through sluice No. 24 into their lands. The petitioner, Mohandas and Rajasekharan filed O.S. No. 290 of 1978 in the Munsiffs Court, Chittoor for an injunction restraining the respondents from trespassing upon their properties. A commissioner for local inspection was issued by the Court. In the meanwhile respondents 2 to 4 approached the Sub Divisional Magistrate, Chittoor for initiation of proceedings under S.133 of the Criminal Procedure Code. A commissioner for local inspection was issued by the Court. In the meanwhile respondents 2 to 4 approached the Sub Divisional Magistrate, Chittoor for initiation of proceedings under S.133 of the Criminal Procedure Code. A preliminary order was issued on 21-10-1978 stating that the petitioner obstructed the flow of water from sluice No. 24 by constructing a shed and putting up a bund and prevented water from getting into the fields below, and calling upon him to remove the obstruction or to show cause under S.133 of the Code of Criminal Procedure. On the same day the Magistrate issued an order of injunction under S.142 of the Code of Criminal Procedure directing the petitioner to remove the obstruction and allow free flow of water from the Pothundy Main Canal through sluice No. 24. The present petition is filed for quashing the above order. 2. According to the petitioner, neither the public nor any individual has any right in his property. No such right was reserved in the assignment in his favour. No damage or injury to the public is caused by the act alleged to have been done by him. Respondents 2 to 4 do not constitute the public in any sense of the term. They have no right to take water from the petitioner's property. The engineers of the Irrigation Department have reported that if any canal is opened through the petitioner's property, it would divert water let out through sluice No. 24 into the ayacut area of sluice No. 23 which is not permitted by the Department. Respondents 2 to 4 have no land in the ayacut area of sluice No 24 and they are not entitled to get water through that sluice. The provisions of S.133 and 142 are not applicable for regulating the supply of water from irrigation projects. The order of injunction issued without giving an opportunity to the petitioner to be heard is illegal and irregular. It was under the above circumstances that request has been made to quash the order. 3. The petitioner thus challenges the jurisdiction of the Magistrate to initiate proceedings under S.133 of the Code of Criminal Procedure and to the issue of injunction under S.142 of the Code. 4. S.133 of the Code of Criminal Procedure deals with conditional order for removal of nuisance. Under clause (a) of Sep. 3. The petitioner thus challenges the jurisdiction of the Magistrate to initiate proceedings under S.133 of the Code of Criminal Procedure and to the issue of injunction under S.142 of the Code. 4. S.133 of the Code of Criminal Procedure deals with conditional order for removal of nuisance. Under clause (a) of Sep. 133 (1) if the concerned Magistrate on receiving the report of a police officer or other information and on taking such evidence, if any, as he thinks fit, considers that any unlawful obstruction or nuisance should be removed from any public place or from anyway, river or channel which is or may be lawfully used by the public, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance to remove the same within a time to be fixed in the order or, if he objects to do so, to appear and show cause in the manner provided, why the order should not be made absolute. The petitioner would contend that S.133 has no application in a case where the obstruction is caused to the flow of water in a channel which is used not by the public as such but by specified persons. Reliance is placed on the decision of the Privy Council in Rustam AIi v. Municipal Committee, Karnal (AIR. 1920 PC. 43). I do not, however, propose to express any opinion on the propriety of the order passed in the case under S.133 (1) since that is a matter which the Magistrate may have to decide after the petitioner appears before him in response to the show cause notice. The question involved now is the legality and the propriety of mandatory injunction issued under S.142 of the Code of Criminal Procedure. 5. S.142 (1) of the Code of Criminal Procedure reads: "If a Magistrate making an order under S.133 considers that immediate measures" should be taken to prevent imminent danger or injury of a serious kind to the public, he may issue such an injunction to the person against whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of the matter." There is no doubt that the Magistrate gets jurisdiction to issue an injunction only in cases where he considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public. The object of such an injunction is to obviate or prevent danger or injury to the public pending determination of the dispute. It may be that it is the subjective satisfaction of the Magistrate that governs when arriving at the conclusion that there is danger to the public; but such satisfaction should be based on reasonable grounds. The general principles that govern the issue of injunction in a civil case under the Code of Civil Procedure would be of guidance in deciding whether an injunction should be issued. The Magistrate should satisfy prima facie that there would be imminent danger or injury to the public if the injunction is not issued. The balance of convenience should be in favour of the issue of injunction. 6. In the instant case the petitioner would contend that the lands in the possession of respondents 2 to 4 are in the ayacut area of sluice No. 23 and not of sluice No. 24 through which alone water flows into his property and therefore there was no occasion for the issue of injunction, under S.142 of the Code of Criminal Procedure. He would also say that no order of injunction should have been issued without notice to him and before hearing his objections. According to him, an order of injunction issued without notice to him is unsustainable in law as it was in violation of the principles of natoral justice. 7. Sec.142 of the Code of Criminal Procedure does not provide for notice before an injunction is issued against any person. However, reliance is placed by the petitioner on the decision of the Supreme Court in State Bank of Indian v. Rajendra Kumar (AIR. 1969 SC. 401), a case which arose under, S.517 and 520 of the Code of Criminal Procedure, 1898, in connection with disposal of property. The above provisions did not provide for issue of notice to the parties interested. The Supreme Court referred to the decision in Cooper v. Wandsworth Board of Works (1863) 14 CBNS 180) Ridge v. Baldwin (1963-2 WLR 935) and Board of High School and Intermediate Education U. P. Allahabad v. Ghanshyam Das Gupta (AIR. 1962 SC. 1110). In the first of these cases Byles J. said that "although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the commission of the legislature". 1962 SC. 1110). In the first of these cases Byles J. said that "although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the commission of the legislature". The Supreme Court observed: " It is true that the statute does not expressly require a notice to be issued or a hearing to be given to parties adversely affected. But though the statute is silent and does not expressly require issue of any notice, there is in the eye of law a necessary implication that the parties adversely affected should be heard before the Court makes an order of return of the seized property." The principle is applicable to the instant case. If the injunction is prohibitory in character and the purpose is to maintain the status quo, the prejudice that may be caused to the person against whom it is issued may not be so very pronounced as in a case where the injunction is of a mandatory nature. In the latter case compliance of the order under S.142 may prejudice the person against whom it is issued if ultimately he succeeds in the enquiry. To quote an example, if the Magistrate on being moved by some individuals directs the restoration of a channel or removel of an alleged obstruction in the property of a person, it would be putting the latter to unnecessary harm and inconvenience if after enquiry it turns out that there Was no channel and no obstruction or that the channel was not being used by the public. The very conferment of the power to issue injunction implies that it should be exercised only in advancement of justice and not as an instrument of harassment. Even in the absence of a statutory provision for notice, justice and fairness demand that an order of injunction of the kind-when something is directed to be done in the property of an individual should ordinarily be issued only after affording an opportunity to the person affected to be heard on the matter. In other words, dire-cison to issue notice can be presumed by implication in such cases. A deviation from the rule, even if permissible, is expected to be made only in very extreme cases and where delay to take action would result in dangerous consequences by way of injury to the public. In other words, dire-cison to issue notice can be presumed by implication in such cases. A deviation from the rule, even if permissible, is expected to be made only in very extreme cases and where delay to take action would result in dangerous consequences by way of injury to the public. S.142 has no application if the injury is confined to particular individuals. The facts and circumstances of the case do not justify the issue of an injunction without notice to the petitioner and without hearing his objection. The order issued is, therefore, set aside. It is, however, open to the Magistrate to issue fresh orders after hearing the petitioner and if he is satisfied that the conditions required under S.142 are satisfied. Issue carbon copies on usual terms. Allowed.