BINOGA YADAV AND 3 OTHERS Vs. THE STATE OF BIHAR AND 8 OTHERS

JUDGEMENT

(1.) This application is directed against the order dated 6 -1 -1983 passed in Case No. 104(M) 1981/T.R. No. 14/81/T.R. No. 204/81 by Shri Chandranand Jha, Executive Magistrate, Dinapore, in a proceeding under Sec. 147 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) by which the petitioners have been directed to remove the obstructions caused in the drain through which the opposite parties are entitled to flow the water of their houses so that water may flow in a normal manner terminating in Kama canal. It appears that proceeding under Sec. 147 of the Code had been started on the basis of a police report on 8.6.1981. As a matter of fact earlier a petition had been filed by apposite party No. 2. According to his case, he has a pucca house on survey plot No. 483. Khata No. 377, situated at village Rampur Nagwan, P.S. Paligunj, District Patna. North to the house, there is a lane 5 fit. wide running east to west. Further, north of that lane is the house of the petitioners on plot No. 485, khata No. 377. The drain water of opposite party No. 2 used to flow through kacha drain towards north to the house and thereafter to the west terminating in the canal drain which runs from north to south and, thereafter, to the west side since before and in the month of July, 1980, when opposite part No. 2 was converting that kacha drain into a pucca one, to which the petitioners had obstructed. A Panchaiti was held and the punches, after making local inspection, had authorised the opposite party No. 2 to make pucca drain and this decision of the Punch had been given on 16 -7 -1680. According to the case of opposite party No. 2, pucca drain had been constructed on 16 -7 -1980 without any objection and since then the drain water of the opposite party No. 2 has been flowing from the pucca drain.

(2.) According to the allegations, the petitioners had formed a group and on 2 -2 -1981 obstructed the flowing of the water by force and that caused accumulation of water and also started causing damage to the house wall of opposite party No. 2. Opposite party No. 2, accordingly filed an application before the Sarpanch of Gram Panchayat Rampur Nagwan, which he forwarded to the Sub -divisional Officer on 3 -2 -1981.

(3.) It appears that the petition of the opposite party No. 2 had been sent to the Circle Officer, Paliganj for inquiry and report. But that had been recalled and a Pleader Commissioner was appointed. The objection was filed by the petitioners and the inquiry from the Pleader Commissioner had also been recalled and the enquiry was given to one Shri A. Toppo, Executive Magistrate. Also a report had been called for from the Officer incharge of the concerned police station. When the report from the Officer Incharge had been received, the proceeding had been drawn as stated above.