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2025 DIGILAW 927 (HP)

Madan Lal v. State of Himachal Pradesh

2025-05-06

RAKESH KAINTHLA

body2025
JUDGMENT : Rakesh Kainthla, J The petitioners have filed the present petition against the order dated 11.03.2019 passed by learned Additional Sessions Judge-II, Una, District-Una (learned Revisional Court) vide which the revision filed by the petitioners (respondents before the learned Trial Court) against the order dated 19.03.2018, passed by learned SDM, Una (H.P.) (learned Trial Court) in proceedings under Section 133 of Criminal Procedure Code (“in short Cr.P.C”) was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present petition are that Ram Lal (complainant) filed a complaint under Section 133 Cr.P.C. for removing the public nuisance, i.e. the blockage of a public street. It was asserted that the complainant and the respondents are permanent residents of the village Abada Barana. The complainant has his residential abadi in village adjoining the public street. The Gram Panchayat constructed a pucca street and pucca drain/Nali to discharge the dirty and rainy water of the residents of the locality. The respondent, Madan Lal, blocked the flow of water by putting stones/bricks, etc. The water flows into the Courtyard of the complainant. The respondent, Naresh Kumar, placed a big underground pipe to divert the public street water/drain water towards the house of the complainant. The complainant requested the respondents to remove the public nuisance, but in vain. Hence, it was prayed that the necessary action be taken in the matter. 3. The complaint was forwarded to the Station House Officer (SHO), Una, for conducting an inquiry. SHO submitted a report asserting that Madan Lal & Naresh Kumar, etc., had stopped the flow of water by putting bricks/stones, etc. The Members of the Gram Panchayat had also requested the respondents to remove the obstructions, but in vain. 4. Learned SDM, Una, issued notice to the respondents. The respondents appeared and filed a reply denying the contents of the complaint. It was asserted that the parties are inimical to each other. The level of the residential buildings of the respondents is much higher than the level of the drains. The water was flowing naturally, and no stones/bricks, etc., were put in the drain. The complainant himself raised the wall over the drain and blocked the flow of natural water. Therefore, it was prayed that the complaint be dismissed. 5. The level of the residential buildings of the respondents is much higher than the level of the drains. The water was flowing naturally, and no stones/bricks, etc., were put in the drain. The complainant himself raised the wall over the drain and blocked the flow of natural water. Therefore, it was prayed that the complaint be dismissed. 5. Learned Trial Court recorded the statements of the parties and visited the spot. A direction was issued to the respondents to remove the blockage from the drain and the underground water pipe for the smooth flow of the natural water. 6. The respondents preferred a revision against the order which was decided by the learned Additional Sessions Judge-II, Una (learned Revisional Court). The learned Revisional Court held that no opportunity was given to the respondents to lead the evidence. Learned SDM proceeded to the spot and straightaway passed an order directing the removal of the obstructions. It was not permissible. Hence, the matter was remanded to the learned Trial Court to record the evidence of the respondents. 7. Learned Trial Court recorded the statements of the respondents’ witnesses and held that the statements of the complainant’s witnesses, spot inspection report and spot inquiry revealed that a pucca drain was constructed by the Gram Panchayat for the flow of rainy and dirty water. Respondent, Madan Lal, placed an underground pipe to discharge the water. He blocked the drain and created a nuisance, causing danger to the residents and their abadies. Hence, he directed the respondents to remove the obstructions from the drain. 8. Being aggrieved by the order passed by the learned Trial Court, the respondents filed a revision which was decided by the learned Additional Sessions Judge-II, Una (learned Revisional Court). Learned Revisional Court held that the respondents had blocked the flow of water. Respondents did not step into the witness box to prove that they had not blocked the drain. There was no infirmity in the order passed by the learned Trial Court. Hence, the revision was dismissed. 9. Being aggrieved by the order passed by the learned Revisional Court, the respondents have filed the present revision asserting that the learned Courts below erred in passing the order for the removal of the public nuisance. The complaint before the learned SDM was not maintainable. There was no obstruction or nuisance in the public place. 9. Being aggrieved by the order passed by the learned Revisional Court, the respondents have filed the present revision asserting that the learned Courts below erred in passing the order for the removal of the public nuisance. The complaint before the learned SDM was not maintainable. There was no obstruction or nuisance in the public place. Complainant – Ram Pal admitted on oath that he had not mentioned any Khasra number in the complaint, and he had not annexed any Revenue Record to show the location of the land. Darshan Lal admitted that the water of the house of Ram Lal was passing through the pucca street, which was quite old. Sumit Kumar also made a similar statement. Therefore, it was prayed that the present petition be allowed and the order passed by the learned Courts below be set aside. 10. I have heard Mr. Divya Raj Singh, learned counsel for the petitioners/original respondents, Mr. Ajit Sharma, learned Deputy Advocate General for respondent No.1/State and Mr. Sanjeev Kumar Suri, learned counsel for respondent No.2/original complainant. 11. Mr. Divya Raj Singh, learned counsel for the petitioners/original respondents, submitted that the learned Trial Court did not have the jurisdiction to hear and entertain the present complaint. Learned Trial Court did not pass any conditional order in the absence of which the jurisdiction could not have been exercised. There was no obstruction in a public place. Public nuisance, as per the complaint, was restricted to the house of the complainant. Therefore, he prayed that the present petition be allowed and the orders passed by the learned Courts below be set aside. He relied upon the judgment of Kashetar Pal Singh v. Harpal Singh, 2016 SCC OnLine HP 2935 in support of his submission. 12. Mr. Ajit Sharma, learned Deputy Advocate General for respondent No.1-State, submitted that the drain was constructed by the Gram Panchayat, hence, it falls within the definition of a public place. It was duly proved by the statements of the witnesses and the report of the learned SDM that obstruction was caused to the public drain. Therefore, the learned Trial Court had rightly ordered its removal. Learned Revisional Court had rightly dismissed the revision. This Court should not interfere with the concurrent findings of fact recorded by the learned Courts below. Therefore, he prayed that the present petition be dismissed. 13. Mr. Therefore, the learned Trial Court had rightly ordered its removal. Learned Revisional Court had rightly dismissed the revision. This Court should not interfere with the concurrent findings of fact recorded by the learned Courts below. Therefore, he prayed that the present petition be dismissed. 13. Mr. Sanjeev Kumar Suri, learned counsel for respondent No.2/original complainant, submitted that the petitioners/original respondents had filed a revision before the learned Revisional Court, and the second revision is not maintainable. This Court can interfere with the orders passed by the learned Courts below if there is some jurisdictional error which has not been demonstrated in the present case. Hence, he prayed that the present petition be dismissed. 14. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 15. It is undisputed that the petitioners had filed a revision before the learned Revisional Court, which was dismissed by the learned Revisional Court. It was laid down by the Hon’ble Supreme Court in Krishnan Vs. In Krishnaveni (1997) 4 SCC 241, the High Court can intervene under Section 482 of CrPC (corresponding to Section 528 of BNSS) when there is a grave miscarriage of justice or abuse of the process of the Court. It was observed: “10. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person — accused/complainant — cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is a grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of a criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. These malpractices need to be curbed, and public justice can be ensured only when the trial is conducted expeditiously. 11. In Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551: 1978 SCC (Cri) 10], a three-judge Bench was to consider the scope of the power of the High Court under Section 482 and Section 397(2) of the Code. This Court held that the bar on the power of revision was put to facilitate expedient disposal of the cases, but in Section 482, it is provided that nothing in the Code, which would include Section 397(2) also, shall be deemed to limit or affect the inherent powers of the High Court. On a harmonious construction of the said two provisions on this behalf, it was held that though the High Court has no power of revision in an interlocutory order, still the inherent power will come into play when there is no provision for redressal of the grievance of the aggrieved party. In that case, when allegations of defamatory statements were published in the newspapers against the Law Minister, the State Government decided to prosecute the appellant for an offence under Section 500 IPC. After obtaining the sanction, on a complaint made by the public prosecutor, cognisance of the commission of the offence by the appellant was taken to trial in the Sessions Court. Thereafter, the appellant filed an application to dismiss the complaint on the ground that the court had no jurisdiction to entertain the complaint. The Sessions Judge rejected all the contentions and framed the charges under Section 406. Thereafter, the appellant filed an application to dismiss the complaint on the ground that the court had no jurisdiction to entertain the complaint. The Sessions Judge rejected all the contentions and framed the charges under Section 406. The Order of the Sessions Judge was challenged in revision in the High Court. On a preliminary objection raised on maintainability, this Court held that the power of the High Court to entertain the revision was not taken away under Section 397 or inherent power under Section 482 of the Code. 12. In V.C. Shukla v. State through CBI [ 1980 Supp SCC 92 : 1980 SCC (Cri) 695: (1980) 2 SCR 380 ] (SCR at p. 393) a four- judge Bench per majority had held that sub-section (3) of Section 397, however, does not limit at all the inherent powers of the High Court contained in Section 482. It merely curbs the revisional power given to the High Court or the Sessions Court under Section 397(1) of the Code. In the Rajan Kumar Machananda case [ 1990 Supp SCC 132 : 1990 SCC (Cri) 537], the case related to the release of a truck from attachment, obviously on the filing of an interlocutory application. It was contended that there was a prohibition on the revision by operation of Section 397(2) of the Code. In that context, it was held that it was not revisable under Section 482 in the exercise of inherent powers by operation of sub-section (3) of Section 397. On the facts in that case, it was held that by provisions contained in Section 397(3), the revision is not maintainable. In the Dharampal case [ (1993) 1 SCC 435 : 1993 SCC (Cri) 333], which related to the exercise of power to issue an order of attachment under Section 146 of the Code, it was held that the inherent power under Section 482 was prohibited. In the Dharampal case [ (1993) 1 SCC 435 : 1993 SCC (Cri) 333], which related to the exercise of power to issue an order of attachment under Section 146 of the Code, it was held that the inherent power under Section 482 was prohibited. On the facts, in that case, it could be said that the learned Judges would be justified in holding that it was not revisable since it was a prohibitory interim order of attachment covered under Section 397(2) of the Code but the observations of the learned Judges that the High Court had no power under Section 482 of the Code were not correct in view of the ratio of this Court in Madhu Limaye case [ (1977) 4 SCC 551 : 1978 SCC (Cri) 10 ] as upheld in V.C. Shukla case [ 1980 Supp SCC 92 : 1980 SCC (Cri) 695 : (1980) 2 SCR 380] and also in view of our observations stated earlier. The ratio in the Deepti case [ (1995) 5 SCC 751 : 1995 SCC (Cri) 1020] is also not apposite to the facts in the present case. To the contrary, in that case, an application for discharge of the accused was filed in the Court of the Magistrate for an offence under Section 498-A IPC. The learned Magistrate and the Sessions Judge dismissed the petition. In the revision at the instance of the accused, on a wrong concession made by the counsel appearing for the State that the record did not contain allegations constituting the offence under Section 498-A, the High Court, without applying its mind, had discharged the accused. On appeal, this Court, after going through the record, noted that the concession made by the counsel was wrong. The record did contain the allegations to prove the charge under Section 498-A IPC. The High Court, since it failed to apply its mind, had committed an error of law in discharging the accused, leading to the miscarriage of justice. In that context, this Court held that the order of the Sessions Judge operated as a bar to entertain the application under Section 482 of the Code. In view of the fact that the order of the High Court had led to the miscarriage of justice, this Court had set aside the order of the High Court and confirmed that of the Magistrate. 13. In view of the fact that the order of the High Court had led to the miscarriage of justice, this Court had set aside the order of the High Court and confirmed that of the Magistrate. 13. The ratio of the Simrikhia case [ (1990) 2 SCC 437 : 1990 SCC (Cri) 327] has no application to the facts in this case. Therein, on a private complaint filed under Sections 452 and 323 IPC, the Judicial Magistrate, First Class had taken cognisance of the offence. He transferred the case for inquiry under Section 202 of the Code to the Second-Class Magistrate, who, after examining the witnesses, issued a process to the accused. The High Court, exercising the power under Section 482, dismissed the revision. But subsequently, on an application filed under Section 482 of the Code, the High Court corrected it. The question was whether the High Court was right in reviewing its order. In that factual backdrop, this Court held that the High Court could not exercise inherent power for the second time. The ratio therein, as stated above, has no application to the facts in this case. 14. In view of the above discussion, we hold that though the revision before the High Court under sub-section (1) of Section 397 is prohibited by sub-section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the courts below. It remitted the case to the Magistrate for a decision on the merits after consideration of the evidence. We make it clear that we have not gone into the merits of the case. Since the High Court has left the matter to be considered by the Magistrate, it would be inappropriate at this stage to go into that question. We have only considered the issue of power and jurisdiction of the High Court in the context of the revisional power under Section 397(1) read with Section 397(3) and the inherent powers. We do not find any justification warranting interference in the appeal.” 16. We have only considered the issue of power and jurisdiction of the High Court in the context of the revisional power under Section 397(1) read with Section 397(3) and the inherent powers. We do not find any justification warranting interference in the appeal.” 16. This position was reiterated in Rajinder Prasad v. Bashir, (2001) 8 SCC 522 , wherein it was held: “…though the power of the High Court under Section 482 of the Code is very wide, the same must be exercised sparingly and cautiously, particularly in a case where the petitioner is shown to have already invoked the revisional jurisdiction under Section 397 of the Code. Only in cases where the High Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, the High Court may, in its discretion, prevent the abuse of the process or miscarriage of justice by exercise of jurisdiction under Section 482 of the Code. It was further held, “Ordinarily, when revision has been barred by Section 397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of provisions of Section 397(3) or Section 397(2) of the Code.” 17. A similar view was taken in Kailash Verma v. Punjab State Civil Supplies Corporation, (2005) 2 SCC 571 , and it was held: “5. It may also be noticed that this Court in Rajathi v. C. Ganesan [ (1999) 6 SCC 326 : 1999 SCC (Cri) 1118 ] said that the power under Section 482 of the Criminal Procedure Code has to be exercised sparingly and such power shall not be utilised as a substitute for second revision. Ordinarily, when a revision has been barred under Section 397(3) of the Code, the complainant or the accused cannot be allowed to take recourse to revision before the High Court under Section 397(1) of the Criminal Procedure Code, as it is prohibited under Section 397(3) thereof. Ordinarily, when a revision has been barred under Section 397(3) of the Code, the complainant or the accused cannot be allowed to take recourse to revision before the High Court under Section 397(1) of the Criminal Procedure Code, as it is prohibited under Section 397(3) thereof. However, the High Court can entertain a petition under Section 482 of the Criminal Procedure Code when there is a serious miscarriage of justice and abuse of the process of the court or when mandatory provisions of the law are not complied with and when the High Court feels that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional court.” 18. This position was reiterated in Shakuntala Devi v. Chamru Mahto , (2009) 3 SCC 310 : (2009) 2 SCC (Cri) 8: 2009 SCC OnLine SC 292 , wherein it was observed: - “24. It is well settled that the object of the introduction of sub-section (3) in Section 397 was to prevent a second revision to avoid frivolous litigation, but, at the same time, the doors to the High Court to a litigant who had lost before the Sessions Judge were not completely closed and in special cases, the bar under Section 397(3) could be lifted. In other words, the power of the High Court to entertain a petition under Section 482 was not subject to the prohibition under sub-section (3) of Section 397 of the Code and was capable of being invoked in appropriate cases. Mr Sanyal's contention that there was a complete bar under Section 397(3) of the Code debarring the High Court from entertaining an application under Section 482 thereof does not, therefore, commend itself to us. 25. On the factual aspect, the Magistrate came to a that the appellants were entitled to possession of the disputed plot. It is true that while making such a declaration under Section 145(4) of the Code, the Magistrate could have also directed that the appellants be put in possession of the same. 26. 25. On the factual aspect, the Magistrate came to a that the appellants were entitled to possession of the disputed plot. It is true that while making such a declaration under Section 145(4) of the Code, the Magistrate could have also directed that the appellants be put in possession of the same. 26. The question which is now required to be considered is whether the High Court was right in quashing the order passed by the Magistrate, which was confirmed by the Sessions Judge, on the ground that the application made by the appellants under Section 145(6) of the Code was barred firstly by limitation under Article 137 of the Limitation Act and also by virtue of Section 6 of the Specific Relief Act, 1963. 19. Delhi High Court also took a similar view in Surender Kumar Jain v. State, ILR (2012) 3 Del 99 and held: — “5. The issue regarding the filing of a petition before the High Court after having availed the first revision petition before the Court of Sessions has come up before the Supreme Court and this Court repeatedly. While laying that section 397(3) Cr. P.C. laid the statutory bar of the second revision petition, the courts have held that the High Court did enjoy inherent power under section 82 (sic) Cr. P.C. as well to entertain petitions even in those cases. But that power was to be exercised sparingly and with great caution, particularly when the person approaching the High Court has already availed remedy of first revision in the Sessions Court. This was not that in every case the person aggrieved by the order of the first revision court would have the right to be heard by the High Court to assail the same order which was the subject matter of the revision before the Sessions Court. It all depends not only on the facts and circumstances of each case but as on whether the impugned order brought about a situation that is an abuse of the process of the court, there was a serious miscarriage of justice or the mandatory provisions of law were not complied with. The power could also be exercised by this Court if there was an apparent mistake committed by the revisional court. The power could also be exercised by this Court if there was an apparent mistake committed by the revisional court. Reference in this regard can be made to the judgments of the Supreme Court in Madhu Limave v. State of Maharashtra (1977) 4 SCC 551 , State of Orissa v. Ram Chander Aggarwal, (1979) 2 SCC 305 : AIR 1979 SC 87, Rai Kapoor v. State (Delhi Administration) 1980 Cri LJ 202, Krishnan v. Krishnaveni and Kailash Verma v. Punjab State Civil Supplies Corporation (2005) 2 SCC 571 .” 20. It is apparent from the judgments that the High Court has a limited jurisdiction and it can only rectify a serious miscarriage of justice or a breach of a mandatory provision of law while exercising its jurisdiction under Section 482 of Cr.P.C. 21. Section 133 of Cr.P.C. provides as under:- “133. Conditional order for removal of nuisance. (1) Whenever a District Magistrate or Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers - (a) ... (b) ….. (c) .... (d) .... (e) .... (f)...... Such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, talk well or excavation, or owning or possessing such animal or tree, within time to be fixed in the order- (i) To remove such obstruction or nuisance; or (ii) …… (iii)... (iv)... (v) ... (vi)... or, if he objects so to do, to appear before himself or some other Executive Magistrate Subordinate to him at a time and place to be fixed by the order and show cause, in the manner hereinafter provided, why the order should not be made absolute.” 22. (iv)... (v) ... (vi)... or, if he objects so to do, to appear before himself or some other Executive Magistrate Subordinate to him at a time and place to be fixed by the order and show cause, in the manner hereinafter provided, why the order should not be made absolute.” 22. It is apparent from the bare perusal of this Section that when an information is received by the learned Magistrate from the police or somewhere else, he has to satisfy himself that the information relates to the situation contemplated in Section 133 of Cr.P.C. and pass a conditional order requiring the person causing obstruction to remove such obstruction or nuisance and if he objects to do so, to appear before himself or any Magistrate subordinate to him. Section 135 provides that the person to whom an order is addressed can perform the act directed in the order, or he may appear and show cause against it. Section 137 provides that where the existence of a public right is denied, an inquiry would be made. Section 138 provides that when the person shows cause, the Magistrate shall take evidence in the same manner as in the summons case. Section 138 (2) provides that where the Magistrate is satisfied that the order either originally made or subject to such modification as he considers necessary is reasonable, the order shall be made absolute without modification or with such modification. 23. It is apparent from the scheme of these Sections that conditional order is the foundation on which the whole of the proceedings rests. If the person to whom the conditional order is directed accepts the order and complies with it, the proceedings terminate, but if he feels aggrieved and shows cause, the inquiry has to be conducted and the order can be made absolute, modified or discharged after the inquiry. Thus, the presence of conditional order is necessary before it can be made absolute, modified or discharged. The purpose of passing the conditional order is to make the other party aware of the nature of the order that can be passed in the proceedings. Therefore, it puts the other party on notice of the ultimate order and forms part of natural justice. 24. The purpose of passing the conditional order is to make the other party aware of the nature of the order that can be passed in the proceedings. Therefore, it puts the other party on notice of the ultimate order and forms part of natural justice. 24. In the present case, the learned SDM passed an order on 08.07.2013 as under:- “This Kalandra has been furnished by SHO under Section 107, 150 and 133 Cr.P.C. It is in connection with the blocking of the pubic drain, so it is triable under Section 133 Cr. P.C. and not under Section 107 Cr. P.C. Issue a conditional order under Section 133 Cr. P.C. and case to come up for reply on 02.08.2013.” 25. It is apparent from the order that the learned Trial Court did not specify the nature of the order that the respondents were to comply with on their own or would be enforced against them. 26. A similar situation arose before the Allahabad High Court in Mangal and others v. State of U.P. and others, 1977 Cri. L. J. 1036 , wherein learned SDM had passed an order “issue a conditional order under Section 133 of Cr.P,C. and injunction order under Section 142 of Cr. P.C.” Allahabad High Court held that it was not a sufficient compliance with the requirement of passing a conditional order. It was observed: - 4. In my opinion, there is force in this submission. According to S. 133 (1) whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in that behalf by the State Government, 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 may be lawfully used by public etc., he may make conditional order requiring the persons causing such obstruction to remove the same within the time stated in the order or in case they object to the order, they should appear before him or some other executive Magistrate subordinate to him at a time and place stated in the order and to show cause as to why the order be not made absolute. So far as the first order passed by the Sub-Divisional Magistrate on 11-5-1976 is concerned. So far as the first order passed by the Sub-Divisional Magistrate on 11-5-1976 is concerned. It was merely a direction that an order under Ss. 133 and 142 of the Code of Cr. Procedure be drawn up. It is apparent that it was not the formal order under S.133, which had yet to be drafted and signed by him. Coming now to the actual notice issued to the applicant in pursuance of the aforesaid order made by the Magistrate, I find that it merely recites the reason for and the direction issued under S. 142 of the Code. It states that whereas an enquiry into a conditional order made under S. 133, Cr.P.C. is pending, and the information received by the Magistrate showed that an unlawful obstruction or nuisance had been made, which was causing imminent danger of a serious type to the public and such danger had to be prevented; accordingly order under S. 142, Cr.P.C. requiring the applicant to demolish the said construction was being made. On the face of it, this order does not partake the nature of an order which is to be made under S.133, Cr.P.C, It is not in the nature of a conditional order requiring the applicant either to do something within the time specified therein or to show cause. It appears that the Magistrate passed the order requiring the Officer to draw up an order under S. 133, Cr.P.C. and expected that the officer would draw up such an order for him and place the same for his signature. This, in my opinion, was not in accordance with the law. 5. Learned counsel for the opposite parties urged that in the notice issued to the applicant on the same date, it was mentioned that the applicant had encroached upon the public way by raising a wall. Accordingly, it cannot be denied that the learned Magistrate had formed an opinion that the obstruction by way of encroachment had been made on a public way and that it deserved to be removed Requirement of S. 133, Cr, P. C., therefore, had been substantially complied with and no interference in revision is called for. I am unable to accept this submission. In the first place, the notice copy of which has been filed as Annexure 3 cannot be equated with an order under S. 133 Cr. I am unable to accept this submission. In the first place, the notice copy of which has been filed as Annexure 3 cannot be equated with an order under S. 133 Cr. P. C. Aforementioned facts were recited merely to indicate the circumstances in which an order under S. 142, Cr. P. C. was being passed. In any case, even if the order dated 11th May 1976 is read along with the notice prepared on 11th May 1976, it would still not comply with the remaining requirements of S. 133 of the Code of Cr.Procedure, namely that the applicants should have been told that they could appear before the court on the date and place fixed by it and file such objection to the conditional order as they liked. There is no escape from the position that, in this case, no proper order under S. 133, Cr.P.C. has been issued. 6. At this stage, I would like to point out that in order to facilitate the passing of orders under S. 133, guidance has been provided in the shape of Form No. 20, appended to Sch. II of the Code of Cr. Procedure. The subordinate courts would do well to keep the form in mind while passing an order under S. 133 of the Code of Cr. Procedure. 27. It was laid down by the Hon'ble Madras High Court in Ind Barath Powergencom Ltd. Vs. Revenue Divisional Officer-cum- Sub Divisional Magistrate, 2012 (1) RCR (Criminal) 442 that the conditional order is mandatory. It was observed: “21. In this context, the learned counsel Mr M. Ajmalkhan placed much reliance upon a decision of the Honourable Supreme Court [ C.A. Avarachan v. C.V. Sreenivasan, 1996 7 SCC 71 ] wherein Their Lordships have observed as follows: "4. In our opinion, the omission on the part of the Sub-Divisional Magistrate to draw up a preliminary order, which is a sine qua non for initiating proceedings under Section 133 of the Code of Criminal Procedure and without following the procedure provided for by Section 138 Criminal Procedure Code, the order made by the Sub- Divisional Magistrate on 13/1/1988 is unsustainable and is vitiated. The High Court fell into error in not properly appreciating the effect of non-compliance with the mandatory requirements of drawing up a preliminary order before proceedings under Section 133 Criminal Procedure Code. The High Court fell into error in not properly appreciating the effect of non-compliance with the mandatory requirements of drawing up a preliminary order before proceedings under Section 133 Criminal Procedure Code. Neither the order of the High Court nor that of the Sub- Sub-Divisional Magistrate can, therefore, be sustained." 22. In the above-mentioned case, the Sub-Divisional Magistrate, without drawing up the preliminary order, proceeded with the enquiry. By consent of the parties, he appointed a Commissioner, who filed a fact-finding report. Without enquiring about the parties and without affording sufficient opportunities to both, the Sub-Divisional Magistrate proceeded to pass the order closing down the quarry permanently. Hence, the Supreme Court has held that the Sub-Divisional Magistrate, before passing the order of closure of the quarrying unit, had not drawn up a preliminary order which is a sine qua non for initiating proceedings under Section 133 of Cr.P.C. and since he has passed the order under Section 138 Cr.P.C. without following the procedure, it is unsustainable. 23. The first respondent should have drawn up a preliminary order under Section 133 Cr.P.C. before passing the final order. Without adopting the procedures contained in Section 133 Cr. P.C. and 138 Cr. P.C., he has passed the order as if it were the final one. The Executive Magistrate is bound to observe the procedures adumbrated in Section 138 of Cr.P.C. before making the order absolute, as per the circumstances warranted. Section 138 reads as follows: 138. Procedure where he appears to show cause. (1) If the person against whom an order under section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons case. (2) If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be, with such modification. (3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case. 24. In the present case also, there is no preliminary conditional order, calling upon the persons to show cause why the ban should not be imposed on them. The first respondent proceeded to pass the order without hearing them, banning the entire operation. (3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case. 24. In the present case also, there is no preliminary conditional order, calling upon the persons to show cause why the ban should not be imposed on them. The first respondent proceeded to pass the order without hearing them, banning the entire operation. In view of the law laid down by the Supreme Court, it has necessarily to be observed that the impugned order is not valid in law.” 28. Therefore, the proceedings in the present case would not be sustainable in the absence of the conditional order. 29. It was asserted in the complaint that the water was flowing to the complainant's house. A similar situation arose in Kashetar Pal Singh (supra) wherein a complaint was made that the respondent had blocked the flow of water, causing danger to the complainant’s house. It was held by this Court that it was a private dispute and no public nuisance involved was in it. It was observed:- “14. During the course of arguments, learned counsel for the petitioner neither could point out as to what was the jurisdictional error committed by the learned Court below while deciding the revision petition or what was the perversity with the findings arrived at by learned Revisional Court and by the Court of learned Sub Divisional Magistrate to the effect that the issue raised in Kalandra was in fact a private dispute inter se the present petitioner and respondent No. 1 and there was no element of public nuisance involved in the same. In fact, it is evident from a perusal of the judgment passed by learned Revisional Court as well as other material placed on record by the parties that the issue which was raised by the petitioner by way of filing a complaint before Gram Panchayat was in fact a private dispute existing between him and respondent No. 1 qua which he had already instituted a civil suit in the Court of competent jurisdiction. Therefore, it cannot be said that the Revisional Court erred while coming to the conclusion that the findings returned by the learned Sub Divisional Magistrate that the issue raised in the Kalandra was not a matter of public interest, was the correct decision.” 30. Therefore, it cannot be said that the Revisional Court erred while coming to the conclusion that the findings returned by the learned Sub Divisional Magistrate that the issue raised in the Kalandra was not a matter of public interest, was the correct decision.” 30. In the present case, it was specifically mentioned in the report submitted by Tehsildar that the drain was constructed for discharging the water of the house of the complainant and Kamlesh. It was admitted by the complainant in his cross- examination that the civil suit was pending between the parties. Hence, the proceedings under Section 133 of CrPC were not justified. 31. It was held in M.P. Parameswaran Nair v. P. Madhavan Nair , 1975 SCC OnLine Ker 79: 1975 Cri LJ 1306: 1975 KLT 278 that the obstruction to the flow of water by raising the level of the house by the respondents is not a public nuisance. It was observed: - “5. It is important to bear in mind that for this provision to apply, the obstruction or nuisance to be removed should be on the way. The order of the Magistrate shows that he has taken the raising of the level of the property of the revision petitioner and the putting up of a compound wall by him on his property as the obstruction. They are on his own property and not on the Panchayat road. Therefore, plainly Section 133(1) is not attracted. xxxxxxxx 7. In Summer Singh v. Sanitary Inspector, AIR 1955 Cal 554 : (1955 Cri LJ 1355 ), the petitioner erected khatals on his property on the side of a road in the midst of an inhabited locality. Filth accumulated at the place. Members of the public, including users of the road, suffered as a result of the nuisance. The Magistrate, who was moved in the matter, directed the petitioner to remove the nuisance. The Calcutta High Court set aside that order in revision after holding that before the nuisance or obstruction could be ordered to be removed it had to be established that the nuisance or obstruction related to one in a way, river or channel which was or may be lawfully used by the public or in any public place and that as the khatals constructed by the petitioner were on private land the provisions of Section 133 did not apply. 8. 8. In Shri Ram v. Emperor, AIR 1935 All 926 : (1935 Cri LJ 1140) , the applicant was building a latrine on his land, and the authorities feared that the latrine, when completed, would amount to a nuisance. The Allahabad High Court held that Section 133 did not apply to that case as the latrine was being constructed on the applicant's land, a private place. In Sadasheo Chintaman v. Chintaman Khushalrao, AIR 1945 Nag 226: (47 Cri LJ 217 ), the correctness of an order passed by a Magistrate acting under Section 133 and directing the applicant to remove an embankment put up by him on his property was challenged in revision. In that case, the applicant's land, field No. 19, It was on the southern side of the road, which lay east to west. On the other side of the road towards the north lay fields Nos. 24 and 25. The ground sloped from north to south. Hence, water ran off from the northern lands through the road to the southern lands. The applicant erected an embankment at the edge of field No. 10 at the point where water entered his land from the road. This resulted in the formation of a little lake on the road and rendering the road impassable. The Nagpur High Court after observing that the embankment in that case was on private land, that the obstruction complained of was on the road, that there was no doubt that in cases of obstruction the obstruction had to be on the public way and that Section 133 could not be applied if the obstruction was on private land, held that the Magistrate was right in the circumstances in acting under Section 133 and directing the applicant to remove the embankment. The reason given was that the collection of water on the road was caused by the applicant and that it was immaterial how he caused it. With great respect, the question as to how the obstruction was caused is not immaterial. I consider it really important to ascertain whether the obstruction caused was unlawful. If it was caused as a result of the exercise of a legal right, or in other words, as a result of a lawful act, the obstruction caused cannot be characterised as unlawful. Erection of an embankment on one's land is a right involved in the use of land. If it was caused as a result of the exercise of a legal right, or in other words, as a result of a lawful act, the obstruction caused cannot be characterised as unlawful. Erection of an embankment on one's land is a right involved in the use of land. It is a concrete right following from ownership of property. The right of use of land can be restricted only by law. There is no law prohibiting the erection of an embankment on one's land. Hence, if the obstruction on the road was the result of a lawful act on the part of the applicant on his land, the obstruction caused on the road cannot be characterised as unlawful so as to attract Section 133. The collection of water on a road can be avoided by the authorities in charge of the maintenance of the road by providing drains on the sides of the road. The consequences of failure to perform duty or negligence on their part cannot make the precautionary steps taken by owners of private lands on the sides of the road for preventing water flowing from the road to their lands, acts contrary to law or unlawful acts. Hence, the obstruction on the road, even if it is deemed to be the result of an act of the owner of property on his land, cannot be considered an unlawful obstruction on his part. I regret I am unable to agree with the decision in (1946) 47 Cri LJ 217 (Nag). 9. The provisions of Section 133 apply only to cases where there is no doubt that the place where the alleged obstruction is caused is a public thoroughfare and that the obstruction caused is unlawful. The heart of this case really turns on the question whether the collection of rainwater on the road is an unlawful obstruction made by the Revision Petitioner. Courts have got to be realistic. The revision petitioner had the right to raise the level of his land and put up a compound wall on it, and prevent rainwater from the road from entering his property. Rainwater stagnates on the road because the authorities in charge of maintaining the road have not provided drains on the sides of the road. The revision petitioner had the right to raise the level of his land and put up a compound wall on it, and prevent rainwater from the road from entering his property. Rainwater stagnates on the road because the authorities in charge of maintaining the road have not provided drains on the sides of the road. Instead of asking them to do what is their clear duty, to ask the revision petitioner to demolish the compound wall and to lower the level of his land would be an unnecessary invasion of his indisputable rights in property. The collection of rainwater on the road is not on account of unlawful obstruction caused by the revision petitioner. Section 133 of the Criminal Procedure Code does not apply to such a case. I allow this revision petition and quash the Magistrate's order.” 32. The report submitted by the Tehsildar shows that the respondent constructed a house, which caused the blockade of the drain. The complainant admitted that he had not specified the khasra number of the drain. No demarcation was obtained to show that the drain was on common land. Therefore, the learned Magistrate could not have ordered the removal of the obstruction, and the order passed by the learned Trial Court can not be sustained. 33. Learned SDM proceeded under Section 133 Cr. P.C. without passing a conditional order. The passing of the conditional order gives jurisdiction to the learned SDM to proceed further. He treated the private dispute as a public dispute. Hence, he committed a jurisdictional error which can be rectified in the proceedings under Section 482 of Cr.P.C. 34. In view of the above, the present petition is allowed, the orders passed by the learned Courts below are ordered to be set aside, and the complaint is dismissed. Records of the learned Courts below be sent back forthwith along with copy of the judgment.