IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 102 of 2007. Date of Decision: 3-9-2008. _______________________________________________________ Om Raj. Petitioners. Versus Devi Kumar and others. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting?.No. For the Petitioner : Mr. Ajay Chandel, Advocate. For the respondent No. Mr. Vikas Bhardwaj, Advocate. Surinder Singh, J.(oral) The petitioners herein have assailed the order of learned Additional Sessions Judge passed in Criminal Revision No. 3-D/2004/03 dated 10.5.2007 whereby the order of the S.D.M. purported to have been passed either under Section 145 or 147 of the Code of Criminal Procedure was set- aside. Precisely, the facts giving rise to the present petition are that Shri Ruko Ram, the predecessor-in-interest of the petitioners herein, filed an application before the S.D.M. Dharamshala for taking appropriate action, prohibiting the respondents from causing any obstruction in the Kuhal situated in Up Mohal Tangroti comprising khasra number 290 and 291 which according to the applicant Ruko Ram irrigated his fields. He also pleaded apprehension of breach of peace. The said application was taken up by the S.D.M. on 7.4.2001. After hearing the learned counsel for the applicant, the respondents were ordered to be summoned for 9.5.2001 and also passed the order of stay to be issued separately. On 9.5.2001, the respondents put in appearance and the S.D.M. then though of sending the notice under Section 145 of the Code of Criminal Procedure. As such he ordered to issue the said notice and the case was adjourned to 13.6.2001. - 2 - The perusal of the record shows that no such notice was sent or delivered and the case was fixed for the reply by the respondents. After filing the reply, vide order dated 10.9.2001, the file was sent to the Tehsildar for his report. After inspecting the spot, the Tehsildar submitted his report that khasra number 291 is owned and possessed by respondent Devi Kumar but he did not find any construction over the said khasra number or khasra number 290 which has caused any obstruction to the water channel except a concrete plate-form of one mtr x one mtr that too on the compound beneath the tap over the land of the respondents which was also not causing any obstruction to the water channel. After receiving the report, the case file was again returned vide order dated 15.1.2002 to Tehsildar to re-submit the report after recording the statements of the witnesses. On receipt of the report and the statements aforesaid, the S.D.M. by his order dated 21.8.2002 restrained the respondents from causing any interference in the water channel passing through khasra number 290 and 291. The operative para of the order of the S.D.M. is reproduced as under :- “ I have gone through the evidence adduced and also heard the counsels for the parties at length and have come to the conclusion that the applicant is using the water of the Kuhal (Challah) flowing through Khasra No. 290 and 291 for the irrigation of his land and house hold purposes has easementary right over it. The respondent is, therefore, restrained from causing any obstruction in the free flow of water running through the challah or raising any structure in khasra No. 290 and 291 which may cause change in the nature of the land or obstruct the flow of water. The respondent is also directed to carry out necessary repair as and when required or otherwise allow the applicant to do so. However, the Khasra No. 290 and - 3 - 291 being in the ownership of the applicant will remain in his sole possession for other purposes”. The said order was assailed before the Court of Sessions on the legal as well as factual grounds in revision and vide order dated 10.5.2007, the impugned order of the S.D.M. was set-aside being wrong and illegal as the S.D.M. had passed the impugned order in the shape of final order whereas, under the provisions of the Code of Criminal Procedure, the S.D.M. was supposed to pass the conditional order till the matter is finally decided by competent civil Court. The predecessor-in-interest assailed the said order of learned Additional Sessions Judge in this petition as wrong and illegal. I have heard the learned counsel for the parties and have gone through the record of the courts below. As a matter of fact, nothing is made out from the record of S.D.M. whether he had assumed the jurisdiction under Section 145 or 147 of the Code of Criminal Procedure. From the tone and tenure of his order, it appears that he had passed it under Section 147 of the Code. Under both the provisions whether under Section 145 or 147, the preliminary order was required to be issued only after having been satisfied regarding the apprehension of breach of peace which is sine-qua-non for assuming the jurisdiction under these Sections. In the instant case, there was no material before the S.D.M. that a dispute was likely to cause breach of peace existed regarding any alleged right of user of any land or water. The record does not spell out about the subjective satisfaction of existence of breach of peace. Therefore, the assumption of jurisdiction by the S.D.M. was wrong and illegal. Further, the record does show that in order to determine their rival contents, if he had recorded the evidence of the parties. Rather, he assigned this job to the Tehsildar who recorded the joint statements of the witnesses which is not interceded in law. Thus, the - 4 - S.D.M. could not have acted upon such statement to pass final order in the aforesaid terms. This matter is an already covered matter in Cr.M.M.O. No. 25 of 2008 decided on 21.8.2008 by this Court wherein the procedure in such type of cases has been exhaustively dealt in. Therefore, for the reasons aforesaid, the order passed by Additional Sessions Judge reversing the order of the S.D.M. is up-held as he could not have passed the final order in the matter as he has done in the instant case. Therefore, the instant petition filed by the legal representatives of the original applicant Ruko Ram is devoid of any merit and is accordingly dismissed. (Surinder Singh) Judge. September 3, 2008. (bm)