Ravi Kumar vs Narinder Singh and Others

Surjit Singh, J.

Heard and gone through the record.

Petitioner, who has been named as Respondent in two complaints, Annexures P-1 and P-2, submitted to the District Magistrate, for taking action, on account of obstruction of flow of water, in a Khad (rivulet) and diversion of water of that Khad, towards lands and buildings of the signatories to the two complaints, is aggrieved by order dated 3.7.2010, passed by S.D.M., Una on those complaints, as also the subsequent proceedings conducted by him and, therefore, he has approached this Court, by means of the present petition, u/s 482 Code of Criminal Procedure, for quashing the aforesaid order, dated 3.7.2010 and the proceedings, initiated on the basis of aforesaid two complaints.

The two complaints are signed by a number of persons from Rakkar, a subverb of Una town. It is alleged in the complaints that the present Petitioner is a builder and that he has entered into an agreement with Om Parkash, owner of a site, by the side of aforesaid Khad, to develop the site, which measures around 1800 square meters and that the Petitioner, while developing that site, has used JCB earth mover and tractor, and the muck and loose earth, generated in the course of such leveling, has been thrown into the aforesaid rivulet, which has not only obstructed the flow of water in the Khad, but has also diverted the flow of water towards the houses and lands of the signatories to the complaints and other persons living in the area.

Deputy Commissioner assigned the complaint, Annexure P-1 to SDM, Una, who inspected the site and passed the impugned order, requiring the Petitioner to remove the muck and debris dumped into the Khad, within five days or show cause, why interim order be not made absolute. Petitioner, alongwith owner of the site Om Parkash, who is also named as Respondent, appeared on 14.7.2010. Statements of the Petitioner and said Om Parkash were recorded. Thereafter, Executive Engineer, IPH Division, Una was ordered by the SDM, to make an inquiry and to submit report within 15 days. Report has been submitted by Assistant Engineer, which is Annexure P-8.

Learned Counsel, representing the Petitioner, submits that when the complaints had been submitted to the District Magistrate, he ought to have passed orders thereon, in accordance with the provisions of Section 133 Code of Criminal Procedure and that he had no jurisdiction or authority to mark the complaints to SDM. Submission requires outright rejection, in view of the provisions of Section 23 Code of Criminal Procedure, which gives statutory power to the District Magistrate, to distribute the work among his subordinate Executive Magistrates. SDM is, admittedly, an executive Magistrate, subordinate to the District Magistrate.

Another submission, made on behalf of the Petitioner, is that one of the complaints is endorsed by the Member, Legislative Assembly of the area and that the fact suggests that the case has political overtones. Simply for the reason, that the complaint has been endorsed by the MLA of the area, who is the elected representative of the people of that area, it cannot be said that the allegations made in the complaint, are not true.

Next submission, made by the learned Counsel for the Petitioner, is that before making of two complaints against the Petitioner, Om Parkash, owner of the site, had made a complaint against the signatories to the two complaints and several other persons, that they had been generating muck and debris, by leveling their lands, adjoining the Khad and dumping the same in the Khad and that, that complaint was addressed to the Superintendent of Police. The complaint is part of Annexure P-10. He submits that the present complaints are a counterblast to the aforesaid complaint of Om Parkash. On the basis of this plea, it cannot be said that the allegations, which the complainants have made against the Petitioner, are false. SDM, to whom the complaints have been assigned, is making inquiry. Petitioner has been associated in that inquiry and he can prove, during the course of that inquiry, that the allegations against him, are not correct, or that the muck and debris, which has been dumped into the rivulet, is the handy work of the complainants themselves.

It is further submitted by learned Counsel for the Petitioner that in fact the complaints do not disclose any act of public nuisance. That is not correct. It is specifically stated in the complaints that dumping of debris in the rivulet, poses threat to various houses and buildings, which have already been constructed by a number of persons.

In view of the above said position, petition is dismissed.