SHAM LAL Vs. HARMAIL SINGH

JUDGEMENT

(1.) THIS revision petition under Section 401 of the Code of Criminal Procedure (hereinafter referred to as the Code) is directed against the order dated 23rd January, 1992 passed by the Sub Divisional Magistrate, Panchkula by which Sham Lal petitioner and two others have been issued direction under Section 133 of the Code to allow the flow of water in the direction it flows.

(2.) BRIEFLY stated the facts of the case are that Harmel Singh and 12 others, residents of village Saketri, Tehsil Panchkula, District Ambala filed a petition under Section 133 of the Code against Sham Lal petitioner, Charan Singh son of Shri Mukhtiar Singh and Surti widow of late Shri Chetu stating that village Saketri is situated on Shivalik Foot Hills and most of the rain water from Hills side passes through the drains constructed underneath the houses in the Abadi Deh. It was further averred in that petition that in the attached map Exhibit P-1, GH is a water course flowing from Shivalik side through the village and K is a culvert constructed by the P.W.D. (B&R), Haryana on the road passing through the village for passage of water and L is the house of Shri Kishan Singh son of Shri Raja Singh underneath whose house is passage of water constructed by him. It is further stated in that petition that Smt. Surti had sold her land in the Abadi Deh and Sham Lal is erecting a structure on the piece of land changing the direction of water from point GH to point IJ and Charan Singh is also constructing a wall at point AFDE blocking the natural course of water. It was further stated in that petition that while changing the course of water the public in general and the petitioners whose Baras and houses along with some cultivated land are likely to be affected would be put in great nuisance as the road leading to Mahadev Mandir passes through the village and it will be washed away in case, the course of water GH is changed towards the points IJ. It was further stated in that petition on 7.6.1991 the villagers filed an application before the Gram Panchayat who inspected the site and persuaded the respondents to stay the construction blocking the flow of water that respondents agreed to stop the erection of the structure intended to be raised on the course of water but later on defendant No. 1 raised it wall on the same site to block the passage of water and that the act of the respondents is intentional and is a nuisance as described under Section 133 of the Code. A prayer was made in the petition that a conditional order be passed to restrain the respondents from raising unlawful construction and to remove the encroachment already made. This petition was filed on 26th June, 1991 and on 26th of June, 1991 Sub Divisional Magistrate Panchkula ordered for summoning the respondents for 11-7-1991. On 27th June, 1991 Sub Divisional Magistrate, Panchkula also ordered that the flow of the nala should not be obstructed.

(3.) IT is stated in the written reply before the Sub Divisional Magistrate, that the petition filed by the petitioner is malafide and has been moved with ulterior motive although no cause of action whatsoever has arisen to the petitioner against the respondents. It has been further stated in the written reply that no case under Section 133 of the Code as alleged is made out. It is further stated that as per averments made in the petition, he is raising construction in his own land, therefore, it could not be termed to be an unlawful construction. It is further stated that the land, however, on which he is raising construction is neither a public place nor is a channel which is being used by the public, therefore, the petition filed by the respondents is liable to be dismissed.