L.N.Chhangani, J. - (1.) : This is a reference by the Sessions Judge, Merta recommending that the order of the Sub-Divisional Magistrarte, Parbatsar dated 26-6-58, purporting to have been passed under Section 137 Criminal Procedure Code should be set aside.
(2.) The relevant facts are these:- On 12-8-55, Surajmal and others residing in Jhandelwala Mohalla in the town of Makrana, presented an application to Station House Officer, Parbatsar stating that the rain water discharged from the houses of various persons flowing into their Mohalla had been passing through the way to the house of barbers Dasrath, Baksuram, Shanwarlal and Ramkishan from times immemorial and further complaining that the above mentioned barbers had caused an unlawful obstruction to the flow of water. The barbers had it was mentioned, kept a small mori (drain) but it was wholly insufficient to discharge the entire rain water. They proceeded to say that the collection of rain water is a serious danger to their houses and will result in insanitary conditions leading to the spread of the disease of malaria. The Station House Officer inspected the spot and made the necessary inquiries and after being satisfied of the truth of the complaint, applied to the Sub-Divisional Magistrate Parbatsar on 17-8-55 for taking proceedings under section 133 Criminal Procedure Code A specific request was made that immediate arrangements should be made for the discharge of the water alleged to have been collected. The Sub-Divisional Magistrate on 18-8-55 passed a conditional order requiring Dashrat and other non-petitioners to remove the obstruction against the flow of the rain water or to show cause against the order. Only Baksuram appeared and submitted a reply on behalf of all. He denied having caused any obstruction against the flow of rain water. His case was that the rain water in the locality had been flowing in various directions and that other persons had obstructed the flow of the rain water in other directions. As a result there has been a greater diversion of the flow of rain water towards the houses. They had of course kept a drain or a 'mori' for the flow of rain water but on account of the extraordinary quantity of water flowing in that direction the water could not be carried through that drain and collected near their houses. He however, admitted that if it is desired that the entire water should pass through their houses a pakka drain be constructed at the cost of the mohalla.
(3.) The learned Magistrate did not question the non-applicants as required by section 139-A Criminal Procedure Code, regarding the existence of a public right and straightway held the enquiry and ultimately passed an order under Section 137 Criminal Procedure Code on 26th June, 1958. He directed that a pakka drain should be constructed for the flow of the rain water and that the Municipality should be asked to make necessary arrangement for this purpose.;