C.A. Rahim, J. - (1.) 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 Criminal Procedure Code 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 four storied one. The exhaust water of the said house used to run to the South and fall in the disputed land. The disputed started when the applicants erected a pucca wall over the said land, the allegation is that they blocked the passage of the drain by dumping earth on it. The local administration was approached who got it cleared and the said drain began to flow to the disputed land. 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 Criminal Procedure Code.
(3.) The learned counsel for the applicants has submitted that the proceeding initiated against the applicants is not maintainable since no public nuisance was committed. The Magistrate under the aforesaid section can act only if there is any illegal obstruction on public way, drain or channel. 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 blocked.;