CHAMUNNY Vs. STATE OF KERALA

JUDGEMENT

(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 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.) 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.