- (1.) C. A. Rahim, J. This application arises out of the order dated 4-1-1993 passed by the Sub-divisional Magistrate, Phulpur, district Allahabad initiating proceeding under Section 133, Crpc in Case No. 38 of 1993.
(2.) THE fact is that an open land was purchased by the applicants which is situated to the south of the opposite parties' house, which is a for storied one. THE exhaust water of the said house used to run to the South and fall in the disputed land. THE dispute started when the applicant erected a wall over the said land the allegation is that they blocked the passage of the dram by dumping earth on it. THE local administration was approach ed who get it cleared and the said drain began to flow to the dispute. THE opposite parties' version is that as the applicants again tried to block the flow of the water hence an application was filed before the Sub-divisional Magistrate who after taking a report from the Tahsildar initiated proceeding under Section 133, Crpc. The learned counsel for the applicants has submitted that the pro ceeding initiated against the applicants is not maintainable since no nuisance was committed. The Magistrate under the aforesaid see" act only if there is any illegal obstruction on public way, drain or chand The same has been challenged by the other side. It has been stated on behalf of the opposite parties that there is no out-let of the exhaust water of the house as there is sloping towards the south and for that reason the exhaust water used to run towards the south and fall in the disputed land, which was. The question remains whether the offence committed by the applicants is public nuisance or not. Section 133 (1) (a) Crpc speak that any unlawful obstruction or nuisance should be removed from any public place or from any way, river of channel which is or may be lawfully used by the public.
(3.) IN the decision reported in AIR 1958 MP Shaukat Husain v. Sheodayal Saksaina, it has been held that : "cuspate of the Code of Criminal Procedure deals with a 'public Nuisances' and not with private nuisances. The remedy for the latter is a civil suit although that constitutes nuisance maybe common to both classes. Section 133 provides a speedy and summary remedy in case of urgency where danger to public interest or public health is concerned. IN all other cases the party should be referred to the remedy under the ordinary law. The expression 'public nuisance' has been defined |in Section 268 of the Penal Code as an act or illegal omission which ceases any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in vicinity. " In Mis. Ghulam Kasool Riaz Ahmad v. State, 1978 Ail LJ 1288, it has been held that "proceedings under Section 133 are not intended to settle private disputes between poisons wishing to enforce private rights. They must go to the appropriate civil court for this purpose";