1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 73 OF 2008 Mrs. Sebastiana Fernandes, widow of Bernardo Jose Fernandes, about 62 years old, housewife, residing in House No.1647, Comlatollem, Vaswaddo, Benaulim, Salcete, Goa. ... Petitioner versus 1. Mrs. Antonia Piedade Fernandes, major in age, residing in House No.1646, Comlatollem, Vaswaddo, Benaulim, Salcete, Goa. 2. Mrs. Maria Amelia Flores D'Silva, widow of Caitan Filipe Sebastian D'Silva, residing in H.No.1315, Near Panchayat Office, Mazilwaddo, Benaulim, Salcete, Goa. 3. The State of Goa through The Chief Secretary having his office at Secretariat, Porvorim, Bardez, Goa. ... Respondents Shri R. Satardekar, Advocate for the Petitioner. Shri P. Lotlikar, Advocate for Respondent Nos.1 and 2. CORAM : N. A. BRITTO, J. DATE : 17TH FEBRUARY, 2009. 2 JUDGMENT Challenge in this petition is to the Orders dated 12-6-2007 and 19-4-2008 of the Executive Magistrate and Additional Sessions Judge(2), Margao, respectively. This petition can be considered under Section 482 of the Code of Criminal Procedure, 1973(Code, for short). 2. Admit. By consent heard forthwith. 3. The dispute between the Petitioner/Original Respondent and Respondent No.1 herein/Informant appears to be as regards passage of rain water from the property of Respondent No.1 through the property of the Petitioner into a paddy field surveyed under No.403/3(shown in light green colour on the sketch at page 39 of the paper book. The Petitioner and Respondent No.1 were the mundkars of Respondent No.2. There is no dispute that originally the entire property was surveyed under No.403/1 belonging to Respondent No.2/Mrs. Maria Amelia Flores D'Silva. The Petitioner purchased a plot of the same admeasuring 1075 sq. meters by sale deed dated 19-7-2001. This property has been depicted in pink on a sketch produced by the Petitioner at page 39 of the paper book. The Respondent No.1 also purchased a plot of the same admeasuring 2400 sq. meters by a sale deed dated 19-7-2001. This property is shown in olive green colour on the said sketch. As already stated, Respondent No.1 claims a right to discharge the storm water from her plot into the said paddy field through the plot of the Petitioner and in order to assert the said right Respondent No.1 filed an 3 application dated 2-6-2004 to the Police Inspector, Colva Police Station complaining of blocking of “rain water path”. An application dated 3-6-2004 was also filed to the Executive Magistrate complaining of blockage of “rain water channel”, left by the landlady. The Police conducted an inquiry and submitted a report to the Executive Magistrate dated 7-6-2004 and pursuant thereto a conditional order came to be issued which reads as follows:- “Whereas, it has been made to appear to me from the report of the Police Inspector Colva Police Station that the drainage/water way is blocked with laterite stones/chiro and that there is no other way for the smooth flow of water and that there is every possibility of causing loss of the safety tanks(septic tanks?) and also to the house of the Informant. I, therefore, hereby direct and require you within 8 days from the receipt of this order to clear the drainage which is blocking the flow of the water or if object to do so, to appear in this Court on 6-7-2004 at 3.30 p.m. to show cause as to why the order should not be made absolute”. 4. The Petitioner filed a reply dated 14-6-2005, inter alia, stating that it was a private dispute between two members of the public, and Respondent No.1, therefore, ought to have approached the Civil Court. It appears that at one stage, the learned Additional Sessions Judge had directed an inquiry to be held under Section 137 of the said Code but the same was not pursued. Nevertheless, the learned Magistrate proceeded with the inquiry under Section 138 and as a result 4 of which by the impugned Order, the conditional Order dated 25-6-2004 came to be made absolute. 5. The Petitioner challenged the first Order by filing Criminal Revision Application No. 115 of 2007 which came to be disposed of by the second impugned Order. In disposing of the Criminal Revision Application the learned Additional Sessions Judge(2), Margao, observed that the impugned Order came to be passed rightly or wrongly but it was complied with and as such the Criminal Revision Application had become infructuous. It was stated before the learned Additional Sessions Judge(2), Margao, that the Village Panchayat had constructed a water way with concrete slabs, but before this Court the parties have seriously disputed the location of the said water drain. The Petitioner contends that the same is constructed adjacent to the Village Panchayat road on the northern side of the plot of the Petitioner while on behalf of Respondent No.1 it is contended that it is constructed at the very place where Respondent No.1 has been claiming the right of passage and which place is shown somewhere in the middle of the property of the Petitioner by dotted line on the sketch at page 39 of the paper book and which is in confirmity with the sketch attached to the panchanama dated 3-6-2004. 6. Be that as it may, it appears that the immediate cause for filing the application seeking the said relief by Respondent No.1 was that one Joaquim Joao Fernandes and his daughter Mrs. Fatima Fernandes e Tavares had constructed a 5 compound wall to their boundary about three years back, which fact appears to have been conceded by Respondent No.1, in her cross-examination, and which can be seen recorded in the fourth paragraph of the first impugned Order on account of which, the alleged customary way was blocked. It also appears that by the renovation/construction of the houses into the plot of Respondent No.1, the level of the plot of Respondent No.1 had increased in height and this can be seen from site inspection report dated 13-11-2006 conducted by the B.D.O. 7. Shri R. Satardekar, learned Counsel appearing on behalf of the Petitioner submits that the learned Additional Sessions Judge could not have disposed of the Criminal Revision Application in the manner she did and thereby giving effect to the first Order of the Executive Magistrate which will remain in force, and, pursuant to which Respondent No.1 will have a right to discharge the water from her plot through the plot of the Petitioner which right was a private right agitated by Respondent No.1 and which could not come within the purview of proceedings under Section 133 of the Code. Learned Counsel further submits that the dispute between the parties is entirely a private dispute which could not be entertained under Section 133 of the Code. Learned Counsel further submits that the order of the learned Executive Magistrate is perverse. 8. Supporting the impugned Orders, Shri P. Lotlikar, learned Counsel for Respondent Nos.1 and 2 has submitted that there were several households belonging to different mundkars who had a right to discharge their water through 6 the property of the Petitioner. Here, it may be stated that none of them had joined the Petitioner to assert their right and a bare perusal of the information dated 2-6-2004, or for that matter application dated 3-6-2004, the panchanama as well as the inquiry report prepared by the Officer of Colva Police Station clearly show that Respondent No.1 was trying to assert a private right to discharge the water from her plot through the plot of the Petitioner, into the said paddy field. It is not the case of the Petitioner that there was any channel into her own property which proceeded further through the property of the Petitioner which was being lawfully used by the public. The learned Executive Magistrate could have entertained a dispute, if such was the case. On the contrary, Respondent No.1 was only trying to assert a right to discharge the storm water from her plot through the plot of the Petitioner into the said paddy field and that was essentially a private dispute. The information, the panchanama, the report and the conditional Order all indicated that Respondent No.1 was trying to agitate a private right and not a public right. 9. There is no dispute raised at the time of hearing of this petition that further north to the plot of the Petitioner there is a water drain by the side of the Village Panchayat road and further to that there is also a pond, as shown on the said sketch at page 39. The information nor the conditional Order make any reference to any existing public channel being blocked by the Petitioner. The report of the Town Planner dated 6-10-2006 shows that the site was inspected on 14-11-2006 but the storm water flow could not be seen. However, what is noted therein is that the storm water drain was constructed along with the existing road 7 and therefore it was felt that the storm water from individual houses and plots had to be connected to the existing storm water drain already constructed. Therefore, the Petitioner is right in contending that the drain constructed by the Panchayat is not at the place of the disputed drain but further north to the plot of the Petitioner. 10. In the case of Peter Fernandes v. State of Goa and another(Criminal Writ Petition No.2 of 2007) by Order dated 5-7-2007 this Court had indicated that proceedings under Section 133 of the Code were not meant to settle private disputes between two parties. Relying on the case of Kachrulal Bhagirath Agrawal and others v. State of Maharashtra and others(2004 Cri.L.J. 4634), on which reliance has now been placed by learned Counsel for the Petitioner, this Court had indicated that the object and purpose behind Section 133 of the Code was essentially to prevent public nuisance and involves a sense of urgency in the sense that 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 to what would happen at some later point of time. In Vasant Manga Nikumba and others v. Baburao Bhikanna Naidu and another(1995 Supp(4) SCC 54) the Apex Court has again reiterated that the condition precedent to exercise the power under Section 133, is the imminent danger to the property and consequential nuisance to the public. In Criminal Miscellaneous Application No. 136 of 2002 by Order dated 17-10-2002[at page 56 of the paper book], this Court again referring to Section 133 of the Code stated that it relates to the 8 maintenance of public order and tranquility. The conditional order for removal of nuisance contemplated under the said provision is only with regard to unlawful obstructions/nuisance regarding public places and the inclusion of the private property is not taken into account nor the said provision would be applicable to the private properties. 11. It is nobody's case that there was a definite channel for discharge of water through the property of the Petitioner which could have been lawfully used by the public and in fact it appears that because there was no such channel that word like “groove” for the constant flow of water was used by Respondent No.1 as reflected in the third para of the impugned Order. As stated in Dashrath and others v. The State(1961(2) Cri. L. J. 403), a case which was cited before a revisional Court, the word “channel” in Section 133 covers such a flow of water as can be used for positive uses such as navigation or irrigation and not rain-water across roads, streets or lanes in cities or towns which is incapable of any positive use by the public. A prevention of loss to the property of persons by avoiding collection of water and an insistence on a free flow of water and removal of obstruction cannot imply a use of channel in terms of Section 133(1) of the Code. The dispute between the Petitioner and Respondent No.1 was a private dispute and there were no other persons involved in it and therefore could not have been entertained under Section 133 of the Code. 9 12. The learned Executive Magistrate appears to have proceeded to decide the controversy based on the conduct of the Petitioner and this is reflected in the seventh para of the first impugned Order. The Order is based on conjunctures and surmises. The learned Additional Sessions Judge proceeded to decide the revision on the assumption that drain was already constructed without trying to find out where exactly it was constructed and as can be seen from the report of the Town Planner it was constructed at the northern end of the Petitioner's property and not at the place where Respondent No.1 sought a right of passage of water through the middle of the plot of the Petitioner and which was the subject matter of the conditional Order which has been subsequently made absolute. Dismissal of the revision would only enable Respondent No.1 to assert a right at a place, where Respondent No.1 did not have such a right. 13. In sum and substance, the dispute being essentially a private dispute between the Petitioner and Respondent No.1, the same could not have been the subject matter of proceedings under Section 133(1) of the Code. Consequently, this petition succeeds. The impugned Orders are hereby set aside with costs. The request for stay of this order on behalf of the Petitioner is rejected. N. A. BRITTO, J. RD