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Judgment
Manisana, J.—This is an application u/s 482, Code of Criminal Procedure for quashing the order dated 12.4.83 of the Sessions judge, Cachar passed in CM 7(2) of 1933 and the order 7.4.83 passed by the sub Divisional Magistrate (Executive), Karimganj u/s 133 Code of Criminal Procedure in Case No. 150 of 1982.
Facts.--The land of the Petitioner Arfan Ali is contiguous to the opposite parties and both the lands being or lying low they used to be under water. Subsequently, the Petitioner Arfan Ali developed his land to make it fit for cultivation by raising the level of land. As a result of it, land of the opposite parties has been under water. On these facts and circumstances of the case, the Sub-Divisional Magistrate exercising his powers u/s 133, Code of Criminal Procedure directed the Petitioner provide a "Nalla" of 3ft width and 2ft depth to draw out the water from the land of the opposite parties. Against that order the present Petitioner filed revision, CM 7(2) of 1983. The learned Sessions Judge rejected the petition. Hence, this petition.
The learned Sessions Judge without considering the scope of the provisions u/s 133, Code of Criminal Procedure rejected the petition on the ground that the order of Magistrate is reasonable and it cannot be said to have caused any prejudice to the Petitioner.
Conditions for the application 133, Code of Criminal Procedure are as follows. Before taking action u/s 133, the Magistrate must satisfy himself that it is a public nuisance or obstruction affecting injuriously a number of persons. Section 133 does not relate to a private dispute for which a proper forum is the Civil Court. Therefore, the Magistrate is to act purely in the interested the public and should not use the power u/s 133, Code of Criminal Procedure as a substitute for civil litigation and to settle the private dispute. Turning to the present case, the dispute is purely private dispute between the first party on the one hand and the second parties on the other. Therefore the petition (sic), u/s 133 are not attracted. This aspect of the matter has not been discussed by the learned Magistrate.
Next question which arises for consideration is whether the High Court should exercise its jurisdiction u/s 482, Code of Criminal Procedure in the present case. As already stated, the learned Sessions Judge, without considering the scope of the provisions u/s 133 rejected the revision petition. The Courts below have committed manifest error causing injustice to the Petitioner. In such a circumstance, I am of the opinion that it would meet the ends of justice if the jurisdiction of the High Court u/s 482, Code of Criminal Procedure is exercised. I do so accordingly.
In the result the petition is allowed and order dated 7.4.83 passed by the Sub-Divisional Magistrate (Executive) Karimganj in case No. 150 of 1982 and the order dated 12.4.83 passed by the Sessions judge Cachar in C.M. No. 7(2) of 1983 are quashed. The petition is disposed of.