IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.9980 of 2011 1. BINAY KUMAR SINGH, SON OF LATE RAM KRIPAL SINGH. 2. SMT. PUSHPA SINGH, WIFE OF BINAY KUMAR SINGH. BOTH PERMANENT RESIDENT OF SABALPUR, P.S. DEEDARGANJ, PATNA CITY (PRESENTLY RESIDING AT PANCHWATI, BEPALI KOTHI, BORING ROAD, P.S. S.K. PURI, TOWN AND DISTRICT PATNA.) --- PETITIONERS Versus 1. THE STATE OF BIHAR. 2. THE SUB DIVISIONAL OFFICER, PATNA CITY, PATNA. 3. THE CIRCLE OFFICER, PATNA SADAR, PATNA. --- OPPOSITE PARTIES. For the petitioners :- Mr. Chitranjan Sinha, Senior Advocate Mr. Gopal Prasad Gupta, Advocate For the State :- Mr. Jitendra Kumar Roy, A.P.P. ----------- 2 7.4.2011 The petitioners are aggrieved by order dated 9.2.2011 by which the Sub-divisional Officer, Patna City has taken action against the petitioners under Section 133 of the Code of Criminal Procedure observing that the petitioners are creating nuisance by filling a ditch (Gaddha) which was utilized for the purpose of drainage of rain water. The said proceeding was instituted on the report of the Circle Officer, Patna Sadar who has observed that it appears that lands situated at Mouza Sabalpur, Thana No. 44 near the main road which is a ditch (Gaddha) was used for the purpose of drainage of water. The said report has been instituted on the statement of Shiv Shankar Yadav, Ram Ekbal and Subhash Chandra Prasad. Surprisingly it has been noted by the Sub-divisional Officer, Patna City that Khata No. 158, Plot No. 1948 measuring 2.29 acres is recorded in the name of petitioner no. 2. Having said 2 that the land is recorded in the name of petitioner no. 2, I do not see how the provisions of Section 133 of the Code of Criminal Procedure would be applicable in this case. Even if it is presumed that the land is connected with the river Ganga and facilitates the flow of water, a proceeding under Section 133 of the Code of Criminal Procedure would certainly not be applicable in such circumstances. Besides which I find that the entire procedure for conducting an enquiry is defective as there was no complaint before the Anchaladhikari or the S.D.O. to the effect that the petitioner was creating any type of nuisance, which would justify the initiation of the proceeding under Section 133 of the Code of Criminal Procedure. That is not to say, that there are no remedy available to the State Government or to a private individual in such cases, but the remedy is not under Section 133 of the Code of Criminal Procedure. In the result, I quash the order dated 9.2.2011, passed in Misc. Case No. 730 of 2010 by the Sub-divisional Officer, Patna City with the direction that opportunity should be given to the petitioner before any fresh orders are passed in the matter. This application is allowed to the extent aforesaid. Sanjay ( Sheema Ali Khan, J.)