IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.232 of 2009 (Criminal) Vimal Prasad Shukla …………Petitioner Versus State of Uttarakhand & others …………Respondents Dated: July 26, 2011 HON. SERVESH KUMAR GUPTA, J. Mr. R.P. Nautiyal, Advocate for the petitioner. Mr. M.A. Khan, Brief Holder for the State/respondent no.1. None turns up on behalf of private respondent nos.2 and 3 despite of sufficient service over them, though on 20.5.2010, they were represented by a counsel. So, on listing up of the matter, it has been heard. By way of this writ petition, the order passed by the learned Sessions Judge, Pauri Garhwal dated 21.8.2004 passed in criminal revision no.18 of 2003, Shambhu Prasad Kala and another Vs. State of Uttaranchal & another, is under challenge. Prayer has been made to quash the impugned judgment and order of the learned Sessions Judge. The background facts of the petition are that on an application moved by Ramesh Singh Negi, Madan Singh and Vimal Prasad Shukla on dated 13.5.2002 to S.D.M. Kotdwar, District Pauri Garhwal, an enquiry was set up by the learned Magistrate. This application was with the facts that one irrigation natural channel has been set up by creating the bottleneck so that to impede the natural flow of water not only to the fields of applicants Ramesh Singh Negi and others but also to many other fields located ahead. On enquiry, the Revenue Inspector submitted a report dated 21.6.2002 ratifying the facts stated by the applicants. The Revenue Inspector reported that Sri Shambu Prasad Kala and Manoj Kumar Kala have created obstacles in the natural stream flow to adversely affect the agricultural fields owned not only by applicants but also of other persons. He recommended the legal action against Sri Shamu Prasad Kala and others u/s 133 Cr.P.C. in public 2 interest. In support of his report, he has appended the list of seven witnesses hailing from the same village, nay certain other documents. Therewithal, the learned S.D.M. further asked the report of the Naib Tehsildar, who in turn vide his report dated 18.10.2003 further verified the report of the Revenue Inspector already given in this regard. Pursuant to the above reports of the revenue inspector and the Naib Tehsildar, the S.D.M. of the area, gave opportunity to both the parties for elaborate hearing and recording of the evidence and after hearing both the parties on merits, he ordered the private respondents to remove the impediment from the channel within 30 days and thus, he confirmed the preliminary order passed by him on dated 5.7.2002. Feeling aggrieved, Shambhu Prasad Kala and others preferred a revision before the court of Sessions Judge, Pauri Garhwal, who quashed the order of S.D.M. dated 20.11.2003. By way of this petition, the order of Sessions Judge passed by him on dated 21.8.2004 has been challenged. Learned counsel for the petitioner has argued before the Court that the learned Sessions Judge has committed an error by interfering on the question of fact regarding determination of the existence of this natural water channel in the private field of Sri Shambu Prasad Kala. As per finding of the learned Sessions Judge, this channel is in the private agricultural field of Shambu Prasad and it is not existing on any government land. The basis of this finding of the learned Sessions Judge is that no revenue record could be filed in the court of S.D.M. to show the public nature of this canal. While going through the judgment of the learned S.D.M., it appears that the Magistrate has opined that notwithstanding the actions of marking of this natural stream in the public map, the Pradhan, Gram Panchayat concerned has certified that the questioned stream is the natural one wherefore in 1998-99, the Gram Panchayat sanctioned its constructions giving it a permanent shape. Add to this, Sri Manoj Kumar S/o Shabmhu Prasad in the cross-examination before the S.D.M. admitted that this channel is in use for irrigation not only of Sri Vimal Prasad Shukla but also of several other villagers. Besides, this natural channel is existing through the agricultural field of Sri Deep Chand and Leela Chand also. In that circumstance, the learned S.D.M. has rightly held that if this channel is 3 accepted exclusively owned by Sri Shambhu Prasad Kala, then its existence through the agricultural field of Deep Chand and Leela Nand should not have been there, because an exclusive channel allegedly owned by Sri Shambhu Prasad and Manoj Kumar Kala cannot pass through the agricultural field of other persons and that too, major part of this channel was existing in the fields other than of Shambhu Prasad and Manoj Kumar. In these circumstances, the findings of learned S.D.M. are more weighty one that on the basis of simple statement of Sri Shambu Prasad, the nature of this irrigation canal cannot be determined as private one. In view of the above, this writ petition has force and deserves to be allowed. Impugned judgment of the learned Sessions Judge dated 21.8.2004 is set aside and the judgment passed by the learned S.D.M. on dated 20.11.2003 is sustained. (Servesh Kumar Gupta, J.) July 26, 2011 Rdang