J.B.PARDIWALA,J. - (1.) By this application under Article 227 of the Constitution of India, the applicants have prayed for the following reliefs: "15(A) YOUR LORDSHIPS may be pleased to quash and set aside order dated 31.03.2012 passed by learned Sub- Divisional Magistrate, Palanpur in M.A.G./Case No.6 of 2011 under Section 133 of the Code of Criminal Procedure, 1973 (at Annexure-C hereto) as well as order dated 07.06.2012 passed by learned 4th Additional Sessions Judge, B.K. District. Palanpur in Criminal Revision Application No.24 of 2012 (at ANNEXURE-D hereto); (B) During pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay further operation, implementation and execution of order dated 31.03.2012 passed by learned Sub- Divisional Magistrate, Palanpur in M.A.G./Case No.6 of 2011 under Section 133 of the Code of Criminal Procedure, 1973 (at ANNEXURE-C hereto) as well as order dated 07.06.2012 passed by learned 4th Additional Sessions Judge, B.K. District. Palanpur in Criminal Revision Application No.24 of 2012 (at ANNEXURE-D hereto); (C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case.
(2.) The case appears to be one of a public nuisance. The two authorities below have held the applicants guilty of causing public nuisance. It appears that the Sub Divisional Magistrate, Palanpur, initiated proceedings at the instance of the private respondents herein under the provisions of Section 133 of the Cr.P.C.. The proceedings before the Sub Divisional Magistrate, Palanpur, attained finality by an order dated 31.03.2012. The order passed by the Sub Divisional Magistrate, Palanpur, is extracted hereunder: Order under section 136 of CRPC ORDER "The facts of the case are such that the applicants constructed one shopping centre near Amir Road Cross Roads on land bearing city survey numbers 11651 to 11653 and 13879. The parking of the building is in basement. There is a 25 ft wide road situated on the southern side of the wall of the shopping complex. In that area the residence of the opponents are there. The Foul water of the area is being discharged by the opponents through one drainage line. Such foul water by damaging the wall of the shopping complex is accumulating in the basement of the shopping complex and because of which mosquito and stench is being spread and therefore there are chances of spreading epidemic and therefore the applicants applied for action and conditional order under section 133 of CRPC the dates for remaining present were given to the parties and for hearing were given on 27-11-2011 and it was ascertain by the executive magistrate as to whether nuisance is being created or not and after drawing panchnama a report is called for. Time and again the adjournments were sort by the parties and same were granted. Final hearing was fixed on 1/3/12. On the date of hearing the advocate for the applicants submitted that the basement is flooded with foul water. Nuisance is being crated and also requested for drawing panchnama of place of incident. The opponents have given their written submission dated 23/1/12 and it is contended that just to harass them the proceedings are initiated. In their area since 40 to 45 years municipality has constructed one drainage line for discharge of foul water. The drainage line of the same is being broken illegaly. Rain water was also discharged by same drainage line. On various occasions the land was used. An act of to jeopardise the right to way is being done. Drainage line is broken. Shri Sangal has drawn panchnama. Applicants are head-strong persons. Illegally trees are cut and encroachment on road is made. False complaint is filed. After minutely considering evidence-materials produced by the parties it appears that as per the say of the applicants the foul water of the area is being discharged in the basement of the shopping complex by damaging wall. The circle officer Palanpur has drawn punchnama of the place. It is stated in the punchnama that in Palanpur near Amir Road Cross Roads on the southern side of the land bearing city survey numbers 11651 to 11653 and 13879 Maruvas Brahmania and 7 others residence is situated. It is stated that the foul water and rain water was discharged by a drainage line before the construction of the building but as the building is constructed the foul water and rain water is being discharged in the basement of the building. The water was found accumulated on the day of panchnama. This water is being drained since beginning of the construction of the building. drainage line is 35 to 40 years old which carries water. The panchnama is drawn in presence of both the parties. Considering the above referred materials there is reason to believe the say of the applicants. But since 35 to 40 years the foul water of the area and rain water was discharged by drainage line. After construction of the drainage it is damaged and because of which foul water of the area is being drained in the basement. Therefore prima-facie it appears that the applicants also have not come with clean hands. But it is clear that on disputed land there is an obstruction on discharge of foul water and rain water of the area. Therefore it is necessary for Municipality and Building contractor has to under take following act within one month. 1. As per panchnama foul water of the area was discharged by drainage line and nearby rain water was discharge. drainage line is to be laid by southern wall of shopping centre from west to east and after the end of eastern limits of shopping centre from south to north drainage line is to be laid and it is to be connected with drainage line which is on public road. 2. The opponents are directed to discharge their foul water of latrine, bathroom in Kharkuva. Subject to the above conditions the parties and municipality shall remain in touch with each other to prevent nuisance and therefore following order is passed. ORDER The application is partly allowed. But subject to the above conditions municipality has to complete the act in one month and opponents no. 1 to 7 has to follow the direction contained in para no.2. signed and sealed on 31st March 2012."
(3.) The applicants, being dissatisfied with the order passed by the Sub Divisional Magistrate, preferred the Criminal Revision Application No.24 of 2012 in the Court of the Sessions Judge, Banaskantha at Palanpur. The Revisional Court, by order dated 07.06.2012, rejected the revision application, thereby affirming the order passed by the Sub Divisional Magistrate. The Revisional Court, in its order, has observed as under: "13. The S.D.M. has observed in his order that there is a public road on the southern side of the shopping center of the opponent Nos. 2 to 5 and the residents of the street discharged their waste water through open drainage and this water enters into and accumulates in underground parking of the commercial complex of the opponent Nos. 2 to 5 causing nuisance. The learned S.D.M. Has got Punchnama of the place. Further, the S.D.M. Has observed that L.A. of the present revisionists has argued that there was already a drainage constructed by Nagarpalika which the present complainants have destroyed. The learned S.D.M. has further observed that the complainant have not come with clean hands but he has come to a conclusion that there is obstruction of discharge of waste water and therefore, Nagrpalika and building contractor are required to complete the work of construction of drainage within one month and therefore, had directed the Nagarpalika to construct the drainage and to join the same in main gutter. 14. Here in this case the drainage water discharged by the residents of street is being accumulated and deposited in the underground parking of the commercial complex of the opponent Nos. 2 to 5 causing great nuisance by fouling atmosphere and has become a possibility of breeding centre of mosquitoes. The revisionists have claimed that earlier there was open drainage through which domestic waste water of the houses situated at the place was being passed but as the opponent Nos. 2 to 5 destroyed and buried that open drainage while constructing their commercial building and the water cannot pass and has started accumulating in the underground parking of the complex of the opponent Nos.2 to 5 which has started causing nuisance. Therefore, S.D.M. Has ignored the civil rights of the revisionists and wrongly considered private nuisance as public nuisance and in no case any such direction to the Nagarpalika to construct the drainage can be given. But, from the records it is clear that the alleged drainage was on the road, allowing waste water not of any individual but of residential house of street on the road and any obstruction in passing of such water cannot be considered as private nuisance. It is clearcut case of public nuisance because if drain water cannot pass and if there is no proper drainage, it would certainly cause public nuisance. The opponents (present revisionists) shall have to discharge their sewage water in Khalkuva which would prevent further nuisance. Thus, here as per argument of Mr. Parmar Civil suit is pending regarding the rights of the parties and it is very clear that the Civil rights of the parties cannot be determined under Section 133 . It is also clear that the S.D.M. Has exercised his power under Section 133 with a view to prevent further nuisance. Moreover, so far as public street is concerned, the Nagarpalika has right to construct drainage. It is duty bound to construct drainage so that discharged waste water do not remain deposited on the place. So far as authorities produced by Mr. Parmar are concerned, there is no question of disagree with the principle laid down in these authorities but in the present case I do not see any reason for the complainant to even challenging this order of the S.D.M. which has no tendency to violate any civil right of the revisionists. This is a case of public nuisance. Thus, S.D.M. Has exercised his power rightly. This cannot be considered a case of private nuisance. I do not see any substance in this revision and therefore the following order. O R D E R The revision application fails and is hereby dismissed. The order passed by the Sub- Divisional Magistrate, Palapur in M.A.G./Case No.6/11 u/s. 133 of the Cr.P.C . dated 31.03.2012 is hereby confirmed. R and P be returned to the Sub- Divisional Magistrate, Palanpur alongwith a copy of this order. No order as to cost. Pronounced in the open Court today, this 7th day of June 2012." ;