NIRMAL SETHI Vs. UDHO RAM

JUDGEMENT

(1.) Petitioner Smt. Nirmal Sethi has filed this petition under Section 397, 401 and 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India for quashing and setting aside the order dated 3.10.1997 of the Sessions Judge, Kangra at Dharamsala passed in Criminal Revision Petition no. 36 -K/10 of 1995 whereby the revision petition against the order dated 31.5.1995 of SDM, Kangra under Section 133 Cr. P.C. in case No. 31 -iv/89/90 filed by Udho Ram respondent herein was allowed thereby the order of the SDM, was set aside.

(2.) The relevant facts giving rise to the present revision petition may be stated as under:

(3.) Udho Ram respondent filed a complaint before the SDM, Kangra against the petitioner under Section 133 Cr. P.C. alleging, inter alia, that the respondent had obstructed water channel meant for irrigation of his fields by establishing a Petrol Pump over that place. The SDM,, vide order dated 11.3.1992 came to the conclusion that no public nuisance was created by the petitioner and hence the complaint was dropped. Against the impugned order, the present respondent filed revision petition under Section 397 Cr. P.C. before the Additional Sessions Judge (II), Kangra at Dharamsala which was decided on 27.4.1993. The learned Addl. Sessions Judge remanded the matter to the SDM,, Kangra directing him to take all evidence in the matter and thereafter decide the case in accordance with the procedure and law. On remand the SDM,, inspected the spot on 6.5.1995 in the presence of the parties and Patwari Halqua. The respondent led oral evidence before the trial Magistrate. On inspection of the spot and appraisal of the revenue record, the Executive Magistrate found a water channel measuring 34 meters in length in existence on khasra No. 1064 which was in the ownership of the petitioner and the said water channel came to an end at a place where the Petrol Pump was established by the petitioner and beyond the said point the flow of he water channel was never in existence. The Executive Magistrate also made inspection of the fields of the respondent and found that for irrigating his land there was a separate water channel and the respondent had been irrigating his lands from the separate water channel. The Executive Magistrate found that the respondent has no right to claim water from the water channel which was in existence upto the place where the Petrol Pump was established by the petitioner. In the teeth of the factual position on spot inspection, the Executive Magistrate dismissed the complaint of the respondent under Section 133 Cr. P.C. Udho Ram assailed the impugned order of the Executive Magistrate dated 31.5.1995 before the Sessions Judge, Kangra at Dharamsala and the revisional Court allowed the said revision petition and set aside the order of the Executive Magistrate directing the present petitioner to clear the old channel and the respondent was allowed to take water through the channel for the purpose of irrigation of his fields. Being aggrieved the petitioner filed Cr. M.P. (M. No. 764 of 1996 in this Court against the order of the learned Sessions Judge. The Honble the Chief Justice as he then was set aside the order of the learned Sessions Judge and remanded the matter for fresh disposal. The operative portion of the order reads as under: - "It is open to both the parties to place before the learned Sessions Judge such records, as may be necessary to support their respective contentions. The first question which should be decided by the learned Sessions Judge is whether the place is a public place or whether the channel, which is said to have been obliterated is or may be lawfully used by the members of the public. Only after deciding the said question, the second question whether the petitioner is guilty of nuisance by obliterating/obstructing the said channel should be gone into. This petition is allowed accordingly with the above direction. No costs."