M.P. Housing Board vs Chhagan Lal Kishanlal Factory and Others

M.A. Siddiqui, J.—This petition u/s 482 of Code of Criminal Procedure has been filed by the Petitioner which is a public undertaking to invoke the extra ordinary powers of this Court for removal of public nuisance done by Respondent No. 1 by creating a wall by which the flow of the water by Nala has been obstructed and thereby the water is accumulated in the residential houses constructed by Petitioner Housing Board for public at Burhanpur.

It is submitted on behalf of the Petitioner that learned SDM, Burhanpur has wrongly dismissed the petition u/s 133 Cr.P.C. as well as the learned ASJ, Burhanpur, though evidence was produced by the Petitioner and no evidence was produced by Respondent No. 1 and even no cross-examination was done by Respondent No. 1 by remaining absent before learned SDM Court.

I have heard the counsel for the parties , and perused the record.

Submission of learned Counsel for Petitioner is that land bearing Khasra No. 207 and 208 have been acquired by the Housing Board and these lands belong to Petitioner. WP No. 3312/2001 filed by Respondent No. 1 challenging the notification for acquisition has been dismissed by this Court on 17.10.2001. Even LPA 321/01 has also been dismissed by a Division Bench of this Court on 7.9.05.

Learned Counsel for Respondent No. 1 submitted that no documentary evidence has been produced that land has been acquired by the Petitioner and it has been owned by the Petitioner Housing Board. But the ownership is not in question, the main question is that whether public nuisance has been done or not by creating a wall there.

Learned Counsel for Petitioner has submitted that he has produced the evidence of his Engineer before the learned SDM during trial, but Respondent No. 1 remained absent and did not care to do the cross-examination so evidence is unrebutted and undisputedly an adverse inference should be drawn. Reliance has been placed on authority of Apex Court in Vidhyadhar Vs. Manikrao and Another, in which it has been held that an adverse inference u/s 114 of Evidence Act may be drawn against a party to the suit for not entering into the witness box. Reliance has also been placed on Vasant Manga Nikumba v. Baburao Bhikanna Naidu in which it has been held that proceeding u/s 133 of Code of Criminal Procedure is more in the nature of civil proceedings in a summary nature.

Learned Counsel for Respondent No. 1 has submitted that it was the duty of Petitioner/Housing Board to prove its case on its own strength and it cannot be allowed to stand its case on the weakness of other side.

Learned Counsel for Petitioner submits that different photographs were submitted before the learned SDM and by calling the report of Patwari and Incharge of Police Station, Lalbagh, the trial Court has come to the conclusion that Housing Board itself was responsible for the accumulation of water.

Learned Counsel for Respondent No. 1 has pointed out that learned SDM has rightly observed in para 9,10,11 and 12 in its order dated 15.1.07 that the evidence which was produced in the form of A.K. Barole, Incharge Asstt. Engineer of the Housing Board whose evidence has been produced in the Court, he himself has admitted that the blockage was due to non-making of proper sewage line by the Housing Board up to the Nala.

Learned Counsel for Respondent No. 1 has placed reliance on a decision of Kerala High Court in M.P. Parameswaran Nair Vs. P. Madhavan Nair and Others, in which it has been held that where a compound wall was erected on the private land and not allowing rain water to enter, water accumulate on road, it is not a public nuisance within Section 133 of Code of Criminal Procedure

As far as exercise of powers u/s 482 Code of Criminal Procedure are concerned, according to Zandu Pharmaceutical Works Ltd. and Others Vs. Md. Sharaful Haque and Others, the Apex Court held that inherent jurisdiction, though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in Section 482 Code of Criminal Procedure Power to be exercised ex debito justitiae to prevent abuse of process of Court, but should not be exercised to stifle legitimate prosecution. If on consideration of the allegations in the light of the statement made on oath of the complainant, it appears that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, the proceedings cannot be quashed as they are to be enquired into by the trial Court.

It seems from the reports of Patwari and SHO as well as from perusal of record that there is a Nala which is flowing from upper side in which sewage line of not only of Housing Board, but other colonies including Indira Colony,etc. are being mixed so the water is more than the sewage line which has been incompletely constructed by the Housing Board. Learned Court below has rightly pointed out that as per evidence of witness of Housing Board himself the Housing Board was at fault and it has not managed the flow of water up to the Nala. But it is also evident from perusal of record that in the rainy season much water might be accumulated in the residential colony which would come in the definition of public nuisance and it is evident that Respondent No. 1 was willing that some bigger pipe may be fitted through which water may be flowed efficiently in the rainy season. Since it is a continuous act of nuisance so the public authorities are at liberty to act as per the conditions and requirements to remove the nuisance. As far as construction of boundary wall is concerned, from perusal of record, it seems that boundary was constructed many years back and there is no dispute that it was constructed on the private land of Respondent No. 1 himself for protection of his Ginning factory and for ancillary purposes.

So far as private rights and public rights are concerned, when there is a demand of public then the private rights have to give way to the public rights and if the situation is that the water in rainy season trespasses in the residential area of Housing Board colony and remains there for long time, then it may be hazardous for the inhabitants of the locality, so in that situation public administration will always be at liberty to do the needful to remove the public nuisance. As far as present position is concerned, there seems to be no public nuisance because of the boundary wall constructed by Respondent No. 1.

It is pertinent to note that both the Courts below have rejected the plea of public nuisance concurrently so there seems to be no reason to interfere with the reasoned decisions, but before parting with the case it is observed that public authorities are at liberty to do the needful, in accordance with law, if something happens in future by way of accumulation of water in the residential area of Petitioner Housing Board.

With the above observations, the petition stands disposed of finally.