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2007 DIGILAW 394 (PAT)

Ram Sanehi Singh v. State Of Bihar

2007-02-21

MADHAVENDRA SARAN

body2007
Judgment 1. This application under Sec. 482 of the Code of Criminal Procedure (in short as the Code) has been filed for quashing the order dated 19.6.2004 passed by learned Sessions Judge. Buxar in Cr. Revision No. 73/2004 whereby he has dismissed the revision and affirmed the order of Sub-divisional Magistrate. Buxar dated 18.5.2004 passed in Case No. 510(M)2000. 2. It appears that the petitioner filed a petition on 4.7.2000 for initiating a proceeding under Sec.133 of the Code against opposite party nos. 4 to 6 in the court of Sub-divisional Magistrate, Buxar vide Case No.510(M)/2000 alleging therein that the members of opposite party nos. 4 to 6 have encroached upon plot no. 182 which is 12 wide public way (Sarba Sadharan Rasta) situated between plot no. 168 and 210 in village Nidhuan. RS. Buxar District Buxar by filing soil in the way which resulted in obstruction of exit of water from his house situated over plot nos. 212 and 210 respectively. Learned Sub-divisional Magistrate on receipt of petition, called for a report from the officer incharge of Buxar Mufassil Police Station about the situation. The Police inspected the site and submitted a report vide memo No. 430/2000 dated 8.8.2000. After getting the police report the learned Executive Magistrate passed order in favour of petitioner on 11.3.2001 and ordered the opposite party to remove the entire gathered soil from the way within ten days and clear all obstructions in the exit of drain water from the house of the petitioner. Thereafter a revision was preferred before the Sessions Judge, Buxar against the order dated 11.9.2001 vide Cr.Revision no. 167/2001 by the opposite party. Learned Sessions Judge heard the matter and allowed the revision and also remanded the matter to the Sub-divisional Magistrate, Buxar for making inquiry under the provisions of Sec.138 of the Code. Thereafter learned Sub-divisional Magistrate directed the opposite party No.3. Circle Officer, Buxar to make proper inquiry and submit a report. The opposite party No.3 duly inquired the matter alongwith Anchal Amin and submitted a report in which it was disclosed that opposite party nos. 4 to 6 have deliberately made obstruction over plot No. 182 which is Aam Rasta by collecting large quantity of soil which caused hindrance in exit of drainage water of the petitioner. 3. The opposite party No.3 duly inquired the matter alongwith Anchal Amin and submitted a report in which it was disclosed that opposite party nos. 4 to 6 have deliberately made obstruction over plot No. 182 which is Aam Rasta by collecting large quantity of soil which caused hindrance in exit of drainage water of the petitioner. 3. Both the parties adduced oral evidence and the learned Sub-divisional Magistrate after hearing the parties, dismissed the proceeding and ordered the petitioner to flow his drain water towards plot no. 211 from south. Again revision was preferred before learned Sessions Judge. Buxar vide Cr. revision No. 73 of 2004 and the same was dismissed at the admission stage itself vide impugned order dated 19.6.2004. Against the said order the petitioner has preferred the present application for quashing before this Court. 4. A counter affidavit has been filed supporting the impugned order. 5. Sec.133 of the Code comes within the heading of public nuisances. The object and purpose behind Sec.133 of the Code is essentially to prevent public nuisance and involve of a sense of urgency in the sense that if the Magistrate fails to take recourse immediately, irreparable damages would be done to the public. In all proceedings initiated under this section, the Magistrate should bear in mind that he is supposed to be acting purely in the interest of public. Therefore, for the applicability of this section the public must have a right of way which is being obstructed. Public must have a right to flow drain water which is being obstructed. In case the public did not have any right to flow drain water through the disputed area when the Magistrate has no power for removal of obstruction from the said land and the same would be without jurisdiction. 6. I have seen the impugned order of learned Magistrate and there is no finding that the alleged obstruction so erected by opposite party Nos 4 to 6 comes within the purview of public nuisances. Both the courts below have misdirected themselves from the main issue. 7. Both the courts below in the respective orders have directed the petitioner to flow his drain water towards south. The courts below thus assumed advisory jurisdiction and did not touch the point in controversy. 8. After hearing the parties. Both the courts below have misdirected themselves from the main issue. 7. Both the courts below in the respective orders have directed the petitioner to flow his drain water towards south. The courts below thus assumed advisory jurisdiction and did not touch the point in controversy. 8. After hearing the parties. I find that the order of learned Sessions Judge is not sustainable in the eye of law. This application is accordingly allowed and both the orders of courts below are set aside. The matter is remanded to learned Sub-divisional Magistrate. Buxar for fresh consideration in the light of observation made above.