IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929 Crl.Rev.Pet.No. 1119 of 1996 (C) ----------------------------------------------- Crl.R.P.35/1990 of Ist ADDL. SESSIONS COURT, PALAKKAD MP.7/1978 on the file of the Sub Divisional Magistrate, Palakkad .................... PETITIONERS 2 TO 4 in M.P./RESPONDENTS 2 TO 4 IN CRL.R.P.35/90/PETITIONERS: --------------------------------------------------------------------------------- 1. P.SANKUNTHALA, W/O SETHUMADHAVAN NAIR PATHIYIL HOUSE, KINASSERRY PALAKKAD 2. P.SARASWATHI AMMA W/O PARAMESWARAN NAIR PATHIYIL HOUSE KINASSERRY PALAKKAD 3. E.P.UNNIKRISHANAN NAIR PILAKKOTTE HOUSE KINASSERRY PALAKKAD BY ADV. SRI.V.V.ASOKAN SRI.BEPIN VIJAYAN RESPONDENT IN M.P./PETITIONER IN CRL.R.P.35/90/RESPONDENT ---------------------------------------------------------------------------------------------------------- 1. K.O.NARAYANANKUTTY TRUSTTEE, POOVAKODE SIVA TEMPLE KINASSERRY, PALAKKAD Suppl. R. 2. P.SUNDARESAN PATHIYIL VEEDU PADINJARETHAI KOLAKKAPPADAM KINNASSERY, PALAKKAD (Supplemental Respondent impleaded as per order dated 7-2-2008 in Crl.M.A.8424/07) PUBLIC PROSECUTOR SMT.P.K.RADHIKA FOR R.2 SRI.FISAL BOSE FOR R.2 SRI.BECHU KURIAN THOMAS [AMICUS CURIAE]. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 1119 of 1996 (C) ORDER ON Crl.M.P.3612 OF 1996 in Crl.R.P.No.1119 OF 1996 Dismissed. 18-3-2008 S D/- A.K.BASHEER, JUDGE A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 1119 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of March, 2008 ORDER This revision petition raises an interesting question as to whether the neighbouring owners of agricultural land of a public water tank belonging to a temple can seek to get an order under Section 133 of the Code of Criminal Procedure, to enable them to use the water of the tank for agricultural purposes. 2. To put it differently, can the temple authorities be justified in restricting the user of the water in the tank to only bathing, washing, etc. and not for any other purpose such as irrigation, washing of animals, fishing etc. 3. The larger question that has also cropped up is whether the two or three neighbouring property owners can seek invocation of the power under section 133 of the Code to establish their so called easementary right of prescription, custom, usage etc. and also for user of the water from the tank as riparian owners. 4. The Sub Divisional Magistrate, in the second round of litigation, had declined the prayer of the Trustee of the temple to Crl.R.P.1119/96. 2 consider the question of maintainability of the complaint under section 133 of the Code as a preliminary point and held that the complaint was maintainable. The above order was challenged by the Trustee before the Sessions Court. The learned Sessions Judge upheld the objection raised by the Trustee and set aside the order passed by the Sub Divisional Magistrate and directed him to consider the question of maintainability of the complaint as a preliminary issue. The said order of the learned Sessions Judge is impugned in this revision petition filed by the agriculturists/neighbouring owners who are three in number. 5. This case has had a chequered history dating back to 1978. Even long prior to the present litigation, there was some dispute with regard to this temple tank. The question was apparently whether the tank was a public or private tank and whether the public other than Nairs in the locality could claim access to the tank. The issue was settled by a decision of the High Court of Madras in the year 1945 to which I shall refer a little later. Anyhow, we are at present concerned with the proceeding initiated under Section 133 of the Code in the year 1978. Crl.R.P.1119/96. 3 6. On October 13, 1978 six agriculturists who were admittedly holding small extents of land adjoining the temple tank of Poovakkode Siva Temple at Kinasseri had filed a petition before the Revenue Divisional Officer (Executive Magistrate) complaining that they were being prevented by the temple authorities from using the water to irrigate their lands. It was alleged in the complaint that they had been using the water in the temple tank for the last so many years as riparian owners and also by way of easement of necessity openly and publicly. It was further contended by them that they being members of the Nair community which had been managing the temple and its properties they were all the m ore entitled to use the water in the tank to irrigate their agricultural lands. It was pointed out by the complainants in the complaint that the Trustee of the temple had put up a board recently informing the public that unauthorised drawal of water for fishing, washing of cattles etc. would not be permitted. 7. The learned Sub Divisional Magistrate, after hearing the Trustee of the temple and after considering his objections passed an order under section 137 (2) of the Code directing the parties to approach the civil court to settle the dispute. Crl.R.P.1119/96. 4 8. The above order was challenged by three of the complainants viz., Sri.Sekhara Menon, Smt.Thathayamma and Sri.D.P.Unnikrishnan Nair before the Sessions Court in Crl.R.P.No.20/1980. The learned Sessions Judge set aside the order passed by the Sub divisional Magistrate and remitted the matter for fresh consideration. 9. Though the above order passed by the Sessions Court was challenged by the Trustee of the temple before this Court in Crl.R.P.No.169 of 1981, this Court upheld the order passed by the Sessions Court and held that the Magistrate has to adjudicate the issue whether the water in the temple tank can be used for irrigation purposes. 10. Thereafter when the case came up for consideration before the Sub Divisional Magistrate after remand, the Trustee of the Temple filed an application to consider the question of maintainability of the petition under Section 133 of the Code. The Sub Divisional Magistrate dismissed the application and held that the petition under Section 133 of the Code was maintainable. 11. The above order was challenged by the Trustee of the temple before the Sessions Court in Crl.R.P.No.34 of 1990. The learned Crl.R.P.1119/96. 5 Sessions Judge set aside the order passed by the Sub Divisional Magistrate and remitted the matter to the court below with a direction to consider the preliminary question of maintainability. 12. The above order passed by the Session Court is under challenge in this revision petition by the three land owners/agriculturists who alone seem to be interested in the matter at present. 13. It is contended by the learned counsel for the petitioners that the tank in question was declared as a public tank in a civil suit which ultimately reached the Madras High Court. Since the temple had already been declared public, the temple authorities cannot impose any restrictions on its user by the members of the public, especially since the neighbouring property owners like the petitioners had been utilising the water for irrigating their lands lying adjoining to the temple properties. It is in this context that the petitioners have based their claim on easementary right of necessity, riparian user etc. The thrust of the argument of the learned counsel is that the learned Sub Divisional Magistrate was perfectly justified in refusing to consider the question of maintainability of the petitioner under Section 133 of the Crl.R.P.1119/96. 6 Code as a preliminary issue not only since the Madras High Court had held that the tank is a public tank but also since this Court in the earlier round of litigation arising from the same proceeding had held that the claim made by the petitioners had to be considered on the basis of the merit of the claim. 14. Per contra, it is contended by Ms.Radhika, learned counsel for the Trustee of the temple, that the nature of the right or claim put forth in the petition before the Sub divisional Magistrate does not have any characteristic of a public right. It is purely a private right that is sought to be established. Even assuming the temple tank is a public tank, it cannot be said that members of the public can be allowed to use the water indiscriminately by permitting them to pump out the water using motor pumps to irrigate their agricultural lands. The temple authorities had thought it fit to impose such a ban on bringing cattle to the temple tank for washing. Fishing was also prohibited. But it is pointed out by the learned counsel that members of the public could have free access to the tank though it is meant for the use of the devotees who come to the temple for worship. 14A. As has been mentioned earlier, the tank in question known Crl.R.P.1119/96. 7 as Kakkottikulam attached to Poovakkode Siva Temple at Kinasserri in Palakkad district was the subject matter of a civil suit before the Subordinate Judge's Court, Palakkad. The main dispute was whether Ezhavas were entitled to bathe in the tank attached to the temple which allegedly belonged exclusively to the Nairs. The Ezhavas who were defendants in the suit disputed and questioned the exclusive right claimed by the Nair community and contended that temples and tanks were public institutions and that they had been, as a matter of fact, using the tanks for bathing purposes for a long time. The courts below found that the temple and tank were not the exclusive property of the Nair community; but they belonged to the Hindu public. At the same time, it was held that the defendants/Ezhavas had no right to bathe in the tanks as they were properties of the temple and appertenant thereto and intended for the use of the higher caste Hindus. 15. The Madras High Court while dealing with the Second Appeal which arose from the suit mentioned above held, after referring to Section 2 of Removal of Civil Disabilities Act 1938 thus: “The tanks in question are no doubt public tanks in the sense that not only the members of the Nair community but Crl.R.P.1119/96. 8 members of other classes of the Hindu public have a right to resort to it but being attached to the temples their use is necessarily governed by the usages which obtain in and appurtain to the temples. If the caste Hindus alone have got a right of worship in the temples and have been using those tanks for purposes of bathing such rights must be preserved. The position would be different if they do not belong to or are not attached to religious institution, for then they will be purely secular and every member of the Hindu public without distinction of caste can use them” 16. A perusal of the above decision reported in Chathunny & Ors. v. Appukkuttan Nair & Ors. (AIR (32) 1945 Madras 232) will undoubtedly show that the tank in question known as Kakkottikulam attached to Poovakkode Siva Temple is a public tank. 17. But it may at once be noticed further that there was no declaration that the water in the said tank could be used for agricultural or any other miscellaneous purposes. I have referred to this aspect at the threshold itself only to highlight the fact that the bone of contention in this case relates to the claim made by the petitioners (who are admittedly Nairs) that they are entitled to use the water in the tank for agricultural purposes, as of right. Crl.R.P.1119/96. 9 18. Section 133 of the Code of Criminal Procedure empowers a District Magistrate or a Sub Divisional Magistrate or any other Executive Magistrate to make a conditional order requiring the person causing any unlawful obstruction or nuisance to remove such obstruction or nuisance from any public place or from any way, river or channel which is or may be lawfully used by the public, if he is satisfied on receiving the report of a Police Officer or other information and on taking such evidence, if any, as he thinks fit. 19. “Public nuisance” has been defined in Section 268 of the Indian Penal Code as hereunder: “A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.” 20. Though “public nuisance” has not been defined under the Code of Criminal Procedure, Section 2(y) of the Code postulates that words and expressions not defined in the Code but defined in the Indian Penal Code have the same meaning respectively assigned to Crl.R.P.1119/96. 10 them in that Code. 21. A perusal of the definition “public nuisance” would unambiguously show that the act or illegal omission complained of must be one which causes a common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity. It could be further seen that such act or omission must be such as to cause injury, obstruction, danger or annoyance to persons who may have occasion to use any “public right”. 22. Ms.Radhika, learned counsel for the respondent has drawn my attention to the phrase “public purpose” “public right” etc. in Corpus Juris Secondum (73 CJS) very elaborately. The term “public use” has been defined as meaning (a) use by the public and by every individual member of it as a matter of right; (b) “of, or belonging to, the people at large open to all the people to the extent that its capacity may admit the public use. The word “public” has been defined as meaning “of, or belonging to, the people at large”; of, or pertaining to the people; pertaining to, or belonging to the people, of, pertaining to, or affecting the people at large or the community distinguished from private or personal; relating to or affecting a nation, state or Crl.R.P.1119/96. 11 community at large”. 23. Sri.Bechu Kurian Thomas who has rendered commendable assistance as Amicus Curie has also invited my attention to the following decisions. 24. In Jagabnath Sahu v. Parmeshwar Naarain (36 ILR 209 (Allahabad) it was held that even if a channel in a field lying at a lower level facilitates flow of surplus water from fields situated at a higher level during rainy season. Such a channel cannot be treated as a public water channel being lawfully used by the public, and action cannot be taken under section 133 of the Code of Criminal Procedure, for the removal of any obstruction from it. 25. In B.S.Corbet & Ors. v. Sonaulla Basunia (34 Crl.L.J. 1933 679) a similar view was taken by a Division Bench of the Calcutta High Court in respect of a complaint alleging over flow of water into other lands by raising level of one's own low land. 26. In Muthuvelan v. Narayanan Nair ( 1963 KLT 934) this Court held that Section 133 can be invoked only where there has been an invasion of public rights. After referring to the provisions contained in the above section viz., “that any unlawful obstruction or nuisance Crl.R.P.1119/96. 12 should be removed from any way, river or channel which is or may be lawfully used by the public” it was held that the rights of riparian owners, however numerous they may be, are the private personal rights of each individual owner and are not the rights of the public. 27. In Kachrulal Bhagirath Agrawal & Ors. v. State of Maharashtra & Ors. ((2005)9 SCC 36, the Apex Court held that proceedings under Section 133 are not intended to settle private disputes between different members of the public and that they are intended to protect the public as a whole against inconvenience. The court further held after referring to the decision in Vasant Manga Nikumba v. Baburao Bhikanna Naidu (1995 Supp. (4) SCC 54) that the object and purpose behind Section 133 of the Code is essential to prevent public nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately, irreparable danger would be done to the public. It applies to a condition of the nuisance at the time when the order is passed and it is not intended to apply to future likelihood or what may happen at a later point of time. It does not deal with all potential nuisances; and on the other hand applies when the nuisance is in existence. The apex court in the above Crl.R.P.1119/96. 13 decision held that the word “community” in clause (b) of Section 133 (1) cannot be taken to mean residents of a particular house. It means something wider, that is, the public at large or the residents of an entire locality. 28. The petitioners had moved the Magistrate under Section 133 of the Code alleging that they had been using the water in the tank for their agricultural purposes. According to the petitioners, they were entitled to use the water in the tank for agricultural purpose as of right, not only because they belonged to Nair community to which the temple and the tank belonged as declared by the Madras High Court, but also because they had established their easementary right of necessity and as riparian owners. 29. The averments in the petition filed before the Magistrate would clearly reveal that the petitioners were trying to establish their individual rights. I do not propose to make any further observation on this aspect in view of the order that I propose to pass. Reference has been made to the nature of the claim made by the petitioners only to state that the Sessions Court had rightly appreciated the factual and legal position involved in the case and remitted the matter back to the Crl.R.P.1119/96. 14 learned Magistrate to consider the question of maintainability. It may be noticed that the learned Magistrate had rejected the plea made by the temple authorities to consider the question of maintainability of the petition on the sole ground that “many cases where public right is being decided will be of a civil nature”. The learned Sessions Judge rightly found that the above view taken by the learned Magistrate is wholly unsustainable. 30. The other contention raised by the learned counsel for the petitioners is that in Crl.R.P.No.169/81 this Court had held that the dispute need not be referred to a civil court under Section 137 (2) of the Code, since indisputably and as held by the Madras High Court the tank in question was a public tank. But this Court in the order in Crl.R.P.NO.169/81 had held thus: “The complaint in this case is whether the water in the tank belonging to a temple can be used for irrigation purposes. The Magistrate will have to address himself to this question with reference to the decisions in the civil suits which have already become final, the evidence, if any tendered afresh before the Magistrate and in the light of the jurisdictional limits of the Code itself” (emphasis supplied) Crl.R.P.1119/96. 15 31. Having carefully perused the entire materials available on record and having considered the arguments advanced before me by learned counsel for the parties, I have no hesitation to hold that the learned Sessions Judge was justified in directing the learned Sub Divisional Magistrate, Palakkad to consider the preliminary point regarding the maintainability of the petition at the threshold itself. There is no material illegality or irregularity in the impugned order passed by the learned Sessions Judge. There is no merit in any of the contentions raised by the petitioners. The Crl.R.P. fails and it is accordingly dismissed. A.K. Basheer Judge. an.