USHA AGARWAL Vs. RAJ NATH AGARWAL

JUDGEMENT

(1.) C. A. Rahim, J. This application arises out of the order dated 4-1-1993 passed by the Sub-divisional Magistrate, Phulpur, district Allahabad initiating proceeding under Section 133, Crpc in Case No. 38 of 1993.

(2.) THE fact is that an open land was purchased by the applicants which is situated to the south of the opposite parties' house, which is a for storied one. THE exhaust water of the said house used to run to the South and fall in the disputed land. THE dispute started when the applicant erected a wall over the said land the allegation is that they blocked the passage of the dram by dumping earth on it. THE local administration was approach ed who get it cleared and the said drain began to flow to the dispute. THE opposite parties' version is that as the applicants again tried to block the flow of the water hence an application was filed before the Sub-divisional Magistrate who after taking a report from the Tahsildar initiated proceeding under Section 133, Crpc.

(3.) IN the decision reported in AIR 1958 MP Shaukat Husain v. Sheodayal Saksaina, it has been held that : "cuspate of the Code of Criminal Procedure deals with a 'public Nuisances' and not with private nuisances. The remedy for the latter is a civil suit although that constitutes nuisance maybe common to both classes. Section 133 provides a speedy and summary remedy in case of urgency where danger to public interest or public health is concerned. IN all other cases the party should be referred to the remedy under the ordinary law. The expression 'public nuisance' has been defined |in Section 268 of the Penal Code as an act or illegal omission which ceases any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in vicinity. "