SMT. SURJIT KAUR Vs. STATE OF HARYANA

JUDGEMENT

(1.) This petition under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) relates to quashment of order dated 17th of May, 1990 passed by the Sub Divisional Magistrate, Panchkula, under Section 133 of the Code, whereby agreeing with the report of the Tehsildar, Kalka, the Sub Divisional Magistrate ordered the opening of the Kool, which was stated to be in existence in Khasra No. 135 and was alleged to have been merged by Pritpal Singh petitioner in his own land (as per the report of the Tehsildar, Kalka). A prayer was also made for quashment of order dated 29th of August, 1991, passed by Sub Divisional Magistrate, Panchkula, whereby notice and peremptory order under Section 141 of the Code was sent to the present petitioners, who were directed to remove obstruction from flow of Kool water to Khasra No. 134 owned by Raj Kumar present respondent. In case of non-compliance with the order, the present petitioners were informed that they face peril of penalty provided by the Indian Penal Code for dis-obedience of the said order.

(2.) The learned counsel for the parties were heard. On behalf of the petitioners it has rightly been submitted that in the instant case, none of the two impugned orders passed by the Sub Divisional Magistrate, were passed on the basis that there was any unlawful obstruction or nuisance from any public place, or from any channel which is, or may, be lawfully used by the public as contemplated under clause (a) of Sub-Section (1) of Section 133 of the Code. The learned counsel appearing on behalf of the respondents half-heartedly argued that the acts of the present petitioners in converting the Kool as a part of their own land amounts to public nuisance. However, the fact remains that there is no specific mention in either of the two orders passed by the learned Sub Divisional Magistrate that the Kool or the channel in respect of which unlawful obstruction was made, is, or, may be lawfully used by the public.

(3.) For the foregoing reasons, this petition is allowed and both the impugned orders dated 17th of May, 1990 (annexure P 1) and order dated 29th of August, 1991, (annexure P 2) passed by the Sub Divisional Magistrate, Panchkula, are quashed. However, it is clarified that there will be no legal bar for the Sub Divisional Magistrate to exercise its jurisdiction in case there is unlawful obstruction or nuisance in respect of channel which, is, or, may, be lawfully used by the public. This petition stands disposed of accordingly.