GHASIA NAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS revision is directed against the order dated 28-8-2004 passed by the Sub-Divisional Magistrate, Sadar, sundargarh in Misc. Case No. 414 of 2002.

(2.) THE gist of the case is that a mass petition was presented before the Tahsildar, sadar, Sundargarh by the villagers of Kepse against the present petitioner for obstructing natural flow of water to the agricultural field from the 'munda', a water body, located over plot No. 635 and thereby causing nuisance to the public. On receipt of such petition, the Tahsildar and I. I. C. Sundargarh sadar P. W. visited the spot to take stock of the situation. After enquiry, the Tahasildar submitted a report to the Sub-Divisional magistrate to the effect that the present petitioner has unlawfully obstructed the flow of water by making ridges and due to such obstruction, the excess water of the 'munda' could not be utilized for agriculture purpose, which amounts to public nuisance. On receipt of such report, Misc. Criminal Case No. 414 of 2002 was instituted and notice was issued to the petitioner under Section 133, cr. P. C. to show cause. After receipt of the notice, the petitioner appeared and submitted his cause stating therein that the report of the Tahasildar is partially correct. His specific case was that adequate surplus water of the 'munda' usually flows over Plot Nos. 637, 636, 670, 673, and 674, crosses the road, enters upon plot no. 857 and thereafter proceeds towards the eastern side of the said plot, which is situated at a down level. It was also stated in the said show cause that the aforesaid was the usual flow of water as because a vast area of cultivable land gets water from that 'munda' and the canal of Surguda MIP runs from west to east over Plot No. 856, which is a raiyat plot of the petitioner, and the water flows towards eastern portion of the paddy field. To safeguard the canal, the ridges of the said canal have been raised on either side of the canal running west to east. Some persons with ulterior motive had cut the ridges of the said canal and thereby wanted to misutilise the water by diverting its flow towards northern side. Opposite parties 2 to 5 are trying to create a situation so as to raise a claim over the raiyat land of the petitioner for a water passage, which was never in existence at any time, and no water passage exists in the village map prepared by the settlement authorities. It was further stated in the show cause that opposite parties 2 to 5 obstructed the water flow by raising ridges on the eastern side of Plot No. 857 through which the water was flowing from the time immemorial and for such obstruction the road has been damaged. A complaint case was instituted against the opposite parties for cutting the ridges, but they were acquitted by the appellate Court. In T. S. No. 36 of 1990 the present petitioner gota decree in respect of plot No. 857/1246 and such ridges exist in between plot No. 857 and plot No. 1246 and the above dispute was purely of civil nature. As such, the proceeding was not maintainable. The Sub-Divisional Magistrate after hearing the parties, examining the witnesses and going through the report of the Tahasildar, by his order dated 28-8-2004 directed the petitioner to remove the unlawful obstruction of natural flow of water on the northern side of plot No. 635 within a month. Against that order, the petitioner has preferred this revision.

(3.) MR. Dash, learned counsel for the petitioner submitted that the dispute is nothing but a private one to be adjudicated upon by the competent civil Court. There was no existence of any public road at any point of time. Over and above, there exists no public nuisance. He further submitted that the Sub-Divisional Magistrate has committed an error in passing the final order without passing any conditional order as provided under Section 133, Cr. P. C. The sub-Divisional Magistrate also did not question the petitioner as to whether he denies the existence of any public road as contemplated under Section 137 (1), Cr. P. C. Lastly, he submitted that no enquiry as contemplated by Sections 137, 138 and 139 Cr. P. C. was conducted by the Sub-Divisional Magistrate.