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2001 DIGILAW 74 (HP)

NIRMAL SETHI v. UDHO RAM

2001-05-04

LOKESHWAR SINGH PANTA

body2001
JUDGMENT Lokeshwar Singh Panta , Judge.-Petitioner Smt. Nirmal Sethi has filed this petition under Section 397, 401 and 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India for quashing and setting aside the order dated 3.10.1997 of the Sessions Judge, Kangra at Dharamsala passed in Criminal Revision Petition no. 36-K/10 of 1995 whereby the revision petition against the order dated 31.5.1995 of SDM, Kangra under Section 133 Cr. P.C. in case No. 31-iv/89/90 filed by Udho Ram respondent herein was allowed thereby the order of the SDM, was set aside. 2. The relevant facts giving rise to the present revision petition may be stated as under: 3. Udho Ram respondent filed a complaint before the SDM, Kangra against the petitioner under Section 133 Cr. P.C. alleging, inter alia, that the respondent had obstructed water channel meant for irrigation of his fields by establishing a Petrol Pump over that place. The SDM,, vide order dated 11.3.1992 came to the conclusion that no public nuisance was created by the petitioner and hence the complaint was dropped. Against the impugned order, the present respondent filed revision petition under Section 397 Cr. P.C. before the Additional Sessions Judge (II), Kangra at Dharamsala which was decided on 27.4.1993. The learned Addl. Sessions Judge remanded the matter to the SDM,, Kangra directing him to take all evidence in the matter and thereafter decide the case in accordance with the procedure and law. On remand the SDM,, inspected the spot on 6.5.1995 in the presence of the parties and Patwari Halqua. The respondent led oral evidence before the trial Magistrate. On inspection of the spot and appraisal of the revenue record, the Executive Magistrate found a water channel measuring 34 meters in length in existence on khasra No. 1064 which was in the ownership of the petitioner and the said water channel came to an end at a place where the Petrol Pump was established by the petitioner and beyond the said point the flow of he water channel was never in existence. The Executive Magistrate also made inspection of the fields of the respondent and found that for irrigating his land there was a separate water channel and the respondent had been irrigating his lands from the separate water channel. The Executive Magistrate also made inspection of the fields of the respondent and found that for irrigating his land there was a separate water channel and the respondent had been irrigating his lands from the separate water channel. The Executive Magistrate found that the respondent has no right to claim water from the water channel which was in existence upto the place where the Petrol Pump was established by the petitioner. In the teeth of the factual position on spot inspection, the Executive Magistrate dismissed the complaint of the respondent under Section 133 Cr. P.C. Udho Ram assailed the impugned order of the Executive Magistrate dated 31.5.1995 before the Sessions Judge, Kangra at Dharamsala and the revisional Court allowed the said revision petition and set aside the order of the Executive Magistrate directing the present petitioner to clear the old channel and the respondent was allowed to take water through the channel for the purpose of irrigation of his fields. Being aggrieved the petitioner filed Cr. M.P. (M. No. 764 of 1996 in this Court against the order of the learned Sessions Judge. The Honble the Chief Justice as he then was set aside the order of the learned Sessions Judge and remanded the matter for fresh disposal. The operative portion of the order reads as under:- "It is open to both the parties to place before the learned Sessions Judge such records, as may be necessary to support their respective contentions. The first question which should be decided by the learned Sessions Judge is whether the place is a public place or whether the channel, which is said to have been obliterated is or may be lawfully used by the members of the public. Only after deciding the said question, the second question whether the petitioner is guilty of nuisance by obliterating/obstructing the said channel should be gone into. This petition is allowed accordingly with the above direction. No costs." 4. On remand, the parties led their oral and documentary evidence before the learned Sessions Judge in revision petition No. 36-K/10 of 1995. The learned Sessions Judge again allowed the revision petition of the respondent and set aside the order of the Executive Magistrate and has made same directions which he made in his earlier order dated 14.6.1996. Smt. Nirmal Sethi petitioner herein has again approached this Court against the impugned order of the learned Sessions Judge dated 3.10.1997. The learned Sessions Judge again allowed the revision petition of the respondent and set aside the order of the Executive Magistrate and has made same directions which he made in his earlier order dated 14.6.1996. Smt. Nirmal Sethi petitioner herein has again approached this Court against the impugned order of the learned Sessions Judge dated 3.10.1997. 5. Mr. Sanjeev Kuthiala, learned counsel for the petitioner contended that the learned Sessions Judge has gravely erred in holding that it was a public right to the general public to get the water from the water channel over the land comprising khasra No. 1064 alleged to have been obstructed by the petitioner. The lands of he respondent is covered by Khasra No. 1089 and he has access to his lands from his alternative public channel which is comprised of khasra No. 1081 and that the alleged complaint filed by the respondent was with respect to his private right and as such would not come within the scope and ambit of a public nuisance and the proper remedy to the respondent would be through the civil court by establishing his right by way of evidence and as such the learned Sessions Judge has misdirected himself to set aside the order of the Executive Magistrate who visited the spot and found that there was no public right to the respondent to take water from the water channel. He also contended that the learned Sessions Judge has misread and misinterpreted the and oral and documentary evidence on record and, therefore, miscarriage of justice has been caused to the petitioner, the impugned order deserves to be set aside. 6. Per contra, Mr. Rajiv Sharma, learned counsel for the respondent contended that the jurisdiction of this court is very limited to interfere with the findings recorded by the learned Sessions Judge on both the questions referred to him by this Court have been dealt with and decided in view of the evidence of the parties. He contended that there is no manifest error of law or jurisdiction on the face of the record and this Court will not inclined to interfere with the well reasoned findings and conclusion arrived at by the learned Sessions Judge in this revision petition. Both the learned counsel have placed reliance upon some decisions of various High Courts and the apex Court which shall be referred and dealt with lateron in this judgment. Both the learned counsel have placed reliance upon some decisions of various High Courts and the apex Court which shall be referred and dealt with lateron in this judgment. 7. It is not in dispute that on remand of the matter by the then Honble the Chief Justice, the parties led oral and documentary evidence before the Sessions Judge to establish their claim and counter-claim. The bone of controversy is over Khasra No. 1064 which was owned and possessed by one Bansi Lal who sold an area of 0-00-48 to the petitioner somewhere in the year 1979-80. From the perusal of jamabandi (Ext.P-7) for the year 1974-75, Bansi Lal was the owner in possession of the said land. The mutation of the said land was entered into in favour of the petitioner in jamabandi (Ext. P-8) for the year 1979-80 and the petitioner has been recorded as owner-in-possession of the said land. In jamabandi (Ext.P-9) for the year 1983-84 the nature of the land has been depicted in this documents as "Gair Mumkin Petrol Pump". Similar is the entry in jamabandi (Ext.P-10) for the year 1994-95. The respondent filed jamabandies (Exts. P-12 and P-13) in respect of the lands of some other persons but those persons have no grievance about the obstruction of the water channel by the petitioner for taking water from the water channel meant for general public. Their lands are shown as irrigated lands in the revenue records Exts. R-2, R-3, R-5, R-6, R-7, R-8, R-9, R-10, R-11 and R-12. Khasra No. 1087 is owned by the State of H.P. as is reflected in jamabandi (Ext.R-4) for the year 1994-95 and the nature of the land is recorded as "Gair Mumkin Kuhul" (water channel). The land of the respondent is covered by Khasra No. 1089. The order of the Executive Magistrate clearly and pointedly would go to show that the respondent had no right to take water from the water channel which was allegedly obstructed by the petitioner and he has been irrigating his land covered by Khasra No. 1089 from a common water channel and that the claim of the respondent that his water channel was obstructed by the petitioner on establishment of the Petrol Pump was not found sustainable. 8. 8. From the documentary evidence on record, It is clearly established that the public has no grievance about the establishment of the Petrol Pump by the petitioner on Khasra No. 1064 and the flow of the water from the water channel meant for irrigation of their fields has not been obstructed and it appears that the respondent has only a personal grievance as he wanted to take the water from the water channel to his land through Khasra No. 1064 which is situated slightly on the higher altitude beyond Khasra No. 1064. Khasra No. 1064 was owned by Bansi Lal who sold the same to the petitioner. It is not in dispute that the jurisdiction of this Court under Sections 397 and 401 Cr. P.C. is very limited, but when the Sessions Judge J has grossly erred in misreading of the documents on record which has resulted a flagrant miscarriage of justice, this Court is not debarred to exercise the revisional jurisdiction to correct the glaring error appearing on the face of the record. The parties have led their entire oral as well as documentary evidence before the learned Sessions Judge in the revision petition in order to establish their rights. It is well settled that the proceedings under Section 133 Cr. P.C. are not intended to settle private disputes between different members of the public. They are in fact, intended to protect the public as a whole against inconvenience. If a person has any private right which he wishes to enforce, he should take his troubles to the Civil Court. (See: Ram Dayal Misra v. Mt. Jagdamba Debi and another. AIR 1942 All 443. Ramu alias Langar through Bhairon v. Murli Das. AIR (30) 1943 All 19. Shaukat Hussain and another v. Sheodayal Saksaina. AIR 1958 M.P. 350. Murlidhar Bhila v. Onkar Vyankat Patil. AIR 1961 Bombay 263 and I.K.S.M. Kalyanasundaram v. Kalyani Ammal and another. 1975 CRI. L.J. 1717 (Madras)). 9. In Hira Lal v. Jogeshwar Ram. 1973 SLJ Himachal Pradesh 82, the learned Single Judge of this Court has held that Complainants case for unlawful nuisance could only be covered under Section 133 Cr. P.C. provided he succeeded in proving that the unlawful nuisance alleged by him is required to be removed from any public place. L.J. 1717 (Madras)). 9. In Hira Lal v. Jogeshwar Ram. 1973 SLJ Himachal Pradesh 82, the learned Single Judge of this Court has held that Complainants case for unlawful nuisance could only be covered under Section 133 Cr. P.C. provided he succeeded in proving that the unlawful nuisance alleged by him is required to be removed from any public place. Such a removal from any public place is to be made only when the unlawful nuisance affects the public at large of such place. It is difficult to understand how an unlawful nuisance which is private in character can be stated to be capable of being removed from any public place within the meaning of Section 133. In order to invoke this section, the nuisance has got to be public nuisance and then only it can be stated to affect the members of public and hence can be removed from public place. Further it is held that proceedings under Section 133 Cr. P.C. are taken in cases of emergency where the public is put to great inconvenience and suffers irreparable injury if the encroachment of he nuisance is not removed at once by adopting the summary procedure contained in Section 133 and the aggrieved parties are saved from the inconvenience of filing a civil suit. Therefore, in a case of nuisance which is in existence for a long period without any change in the circumstances, the| removal of such nuisance cannot be said to be urgent and the remedy must be sought in the Civil Courts. 10. In Jat Ram v. State of H.P. and anr., 1998 (I) S.L.J. 758, the learned Single Judge of this Court has again reiterated that under Section 133 Cr. P.C, the object is not to enable an applicant or complainant to file an application to obtain an order to safeguard his civil rights nor he can obtain any relief in connection with his legal rights. The order to be obtained is for the benefit of public at large. Section 133 of the Code creates an exceptional jurisdiction keeping in view the urgency of the matter and the public involved. Since, the section is intended to provide a speedy remedy in the interest of public, the Magistrates should be on their guard against any tendency to use the provisions as a substitute for litigation in civil court for the settlement of a private disputes. Since, the section is intended to provide a speedy remedy in the interest of public, the Magistrates should be on their guard against any tendency to use the provisions as a substitute for litigation in civil court for the settlement of a private disputes. Further that proceedings under Section 133 of the Code are not intended to settle a private dispute between two individuals. 11. The apex Court in Vasant Manga Nikumba and others v. Baburao Bhikanna Naidu (deceased) by LRs. and another, 1995 Supp (4) SCC 54, had an occasion to deal with the provisions of Section 133 Cr. P.C. and settled the legal position as under:- "Nuisance is an inconvenience materially interferes with the ordinary physical comfort of human existence. It is not capable of precise definition. It may be public or private nuisance. As defined in Section 268 IPC, public nuisance is an offence against public either by doing a thing which tends to the annoyance of the whole community in general or by neglect to do anything which the common good requires. It is an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy the property in the vicinity. On the alternative it causes injury, obstruction, danger or annoyance to persons who may have occasion to use public right. It is the quantum of annoyance or discomfort in contra distinction to private nuisance which affects an individual is the decisive factor. The object and public purpose behind Section 133 is to prevent public nuisance that if the Magistrate fails to take immediate recourse to Section 133 irreparable damage would be done to the public. The exercise of the power should be one of judicious discretions objectively exercised on pragmatic consideration of the given facts and circumstances from evidence on record. The proceedings under Section 133 is not intended to settle private disputes or a substitute to settle civil disputes though the proceeding under Section 133 is more in the nature of civil proceedings in a summary nature." (Emphasis supplied) 12. From the aforesaid settled position of law, the proceedings under Section 133 of the Code is more in emergency nature to prevent public nuisance that if the Magistrate fails to take immediate recourse to Section 133 Cr. P.C. irreparable damage would be done to the public. From the aforesaid settled position of law, the proceedings under Section 133 of the Code is more in emergency nature to prevent public nuisance that if the Magistrate fails to take immediate recourse to Section 133 Cr. P.C. irreparable damage would be done to the public. The purpose behind Section 133 is not intended to settle private dispute or a substitute to settle civil disputes between the parties. The proceedings are pure of summary nature. In the present case complaint was filed by the respondent against the petitioner for initiating proceedings under Section 133 Cr. P.C. on 25.10.1989 and as stated herein above twice the matter was decided by the Executive Magistrate and twice the orders of the Executive Magistrate were challenged by the respondent before the learned Sessions Judge and thereafter once the matter landed in this Court which was remanded by the then Honble Chief Justice to the Sessions Judge for giving his findings on the above quoted two questions. The learned Sessions Judge has committed grave error in holding that the channel which is said to have been obliterated was a public channel or may be lawfully used by the members of the public. He respondent has miserable failed to examine any other witness to establish on record that it was a public water channel lawfully used by the members of the public and the public right was obstructed by the petitioner. It was simply a private complaint of the respondent which could not have been decided by the Executive Magistrate and the order of the Magistrate was valid and legal which has been set aside by the Sessions Judge on unsustainable and untenable grounds. 13. From the date of the institution of complaint by respondent against the petitioner under Section 133 Cr. P.C. a long period of about 12 years till date have elapsed and it cannot be said that the petitioner had caused nuisance long time back which is in existence for such a long period. 14. Mr. Rajiv Sharma learned counsel for the respondent has placed reliance on A.K. Subbaiah & Ors. P.C. a long period of about 12 years till date have elapsed and it cannot be said that the petitioner had caused nuisance long time back which is in existence for such a long period. 14. Mr. Rajiv Sharma learned counsel for the respondent has placed reliance on A.K. Subbaiah & Ors. v. State of Kamataka & Ors., 1987 (3) Crimes 399 (SC), and State of Kerala v. Putumana Illath Jathavedan Namboodiri (1999) 2 SCC 452, to contend that the jurisdiction of this court under Sections 397 and 401 of the Code of Criminal Procedure is one of supervisory jurisdiction exercised by the Court in correcting miscarriage of justice and, therefore, it would not be appropriate for this Court to re-appreciate the evidence and come to its own conclusion when the evidence has already been appreciated by the Sessions Judge in revision. 15. As stated above, the learned Sessions Judge has taken oral and documentary evidence in revision filed by the respondent when the case was remanded to him by this Court. The Sessions Judge has committed grave error in misreading and mis-constructing the documents brought on record by the parties and, therefore, such misconstruction would otherwise tantamount to gross miscarriage of justice which can validly be corrected and settled by this Court in these proceedings. Therefore, the contention of the learned counsel for the respondent that this Court should not interfere in these proceedings cannot be accepted. 16. No other point has been urged by learned counsel on either side. 17. In the result, the revision petition is accordingly allowed. The judgment and order dated 3.10.1997 passed by the learned Sessions Judge, Kangra in Criminal Revision No. 36-K/10/95 is quashed and set aside and the order of Sub Divisional Magistrate, Kangra dated 31.5.1995 recorded in case No. 31-iv/1989-90 is restored whereunder the complaint of the respondent against the petitioner under Section 133 Cr. P.C. came to be rejected.