P. Narayana Pillai, J.
1. Revision sought for here is of an order passed under Section 137 (3) of the old Criminal Procedure Code of 1898 - Section 138(2) of the new Code of 1973 - making absolute a conditional order passed under the first clause of Section 133(1) - Section 133(1)(a) of the new Code. In the conditional order after stating that he was satisfied that the revision petitioner had by raising the level of his property in S. No. 78/1 in Nemmara village and by constructing a compound wall on that property obstructed the free flow of rain water from the panchayat road in S. No. 76 in the same village through his property and thereby allowed water to stagnate on the road making it impossible for the pedestrians to use the road and thus caused nuisance to the public in using the road, the Executive First Class Magistrate, Palghat, directed the revision petitioner to remove the obstruction caused to the free flow of rainwater from the road through his land in S. No. 78/1.
2. The Panchayat road lies east to west at the place. The property of the revision petitioner is on the northern side of it. Properties to the east of it belong to respondents 1 and 2. To the south of the road opposite to the revision petitioner's property is another property belonging to the first respondent. At a place to the north-west of that property the road turns south and joins the Trichur-Chittur road.
3. During rainy season water collects on the Panchayat road and finds its way out of the road through the properties on the northern side as the ground there slopes from south to north. The revision petitioner raised the level of his land and put up a compound wall at the southern boundary of his property and thereby he prevented rain-water from the road flowing through his property. It was then that proceedings under Section 133 commenced. By the final order now passed the revision petitioner has been directed to remove the unlawful obstruction caused for the free flow of rain water through his property in S. No. 78/1.
4. This case raises a point of widespread application regarding use of the provisions of Section 133 of the Criminal Procedure Code against lawful acts of citizens on their private lands and even at the outset I may say that I had the benefit of very clear arguments by Mr. P. C. Balakrishna Menon for the Revision Petitioner and Mr. P. N. Krishnankutty Achan for respondents and I am grateful to them for the care which they have taken.
5. Section 133(1) of the Code so far as is relevant for the present purpose reads:
Whenever a Magistrate of the First Class ...considers.... that any unlawful obstruction or nuisance should be removed from any public place or from any way.... which is or may be lawfully used by the public such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance ... to remove such obstruction or nuisance ...
It is important to bear in mind that for this provision to apply the obstruction or nuisance to be removed should be on the way. The order of the Magistrate shows that he has taken the raising of the level of the property of the revision petitioner and the putting up of a compound wall by him on his property as the obstruction. They are on his own property and not on the Panchayat road. Therefore plainly Section 133(1) is not attracted.
6. The decisions cited by counsel can now be considered. In Ram Autar v. State of U.P. AIR 1962 SC 1794 : (1963) 1 Cri LJ 14 certain persons conducted the trade of auctioning vegetables in a private house on the side of a public road, Carts in which vegetables were brought used to be kept on the road and that caused obstruction to use of the road. The High Court of Allahabad held that when the business of auctioning vegetables could not be carried on without causing obstruction to the passers by on the road the conduct of business could be prohibited even though it was carried on in a private house and refused to interfere with the prohibitory order issued by the Magistrate. When the correctness of that decision was challenged the Supreme Court after saying that if the obstruction was by keeping carts on the road action had to be taken against the persons who brought the carts held that the persons who conducted the business of auctioning vegetables in private house on the side of the road could not be considered to be the persons who caused obstruction and set aside the Magistrate's order.
7. In Summer Singh v. Sanitary Inspector AIR 1955 Cal 554 : 1955 Cri LJ 1355 the petitioner erected khatals on his property on the side of a road in the midst of an inhabited locality. Filth accumulated at the place. Members of the public including users of the road suffered as a result of the nuisance. The Magistrate who was moved in the matter directed the petitioner to remove the nuisance. The Calcutta High Court set aside that order in revision after, holding that before the nuisance or obstruction could be ordered to be removed it had' to be established that the nuisance or obstruction related to one in a way, river or channel which was or may be lawfully used by the public or in any public place and that as the khatals constructed by the petitioner were on private land the provisions of Section 133 did not apply.
8. In Shri Ram v. Emperor AIR 1935 All 926 : 1935 Cri LJ 1140 the applicant was building a latrine on his land and the authorities feared that the latrine when completed would amount to nuisance. The Allahabad High Court held that Section 133 did not apply to that case as the latrine was being constructed on the applicant's own land, a private place.
9. In Sadasheo Chintaman v. Chintaman Khushalrao AIR 1945 Nag 226 : 47 Cri LJ 217 the correctness of an order passed by a Magistrate acting under Section 133 and directing the applicant to remove an embankment put up by him on his property was challenged in revision. In that case the applicant's land, field No. 19. was on the southern side of the road which lay east to west. On the other side of the road towards the north lay field Nos. 24 and 25. The ground sloped from north to south. Hence water ran off from the northern lands through the road to the southern lands. The applicant erected an embankment at the edge of field No. 19 at the point where water entered his land from the road. This resulted in the formation of a little lake on the road and rendering the road impassable. The Nagpur High Court after observing that the embankment in that case was on private land, that the obstruction complained of was on the road, that there was no doubt that in cases of obstruction the obstruction had to be on the public way and that Section 133 could not be applied if the obstruction was on private land, held that the Magistrate was right in the circumstances in acting under Section 133 and directing the applicant to remove the embankment. The reason given was that the collection of water on the road was caused by the applicant and that it was immaterial how; he caused it. With great respect the question as to how the obstruction was caused is not immaterial. I consider it really important to ascertain whether the obstruction caused was unlawful. If it was caused as a result of exercise of a legal right or in other words as a result of a lawful act the obstruction caused cannot be characterised as unlawful. Erection of an emankment on one's own land is a right involved in the use of land. It is a concrete right following from ownership of property. The right of use of land can be restricted only by law. There is no law prohibiting erection of embankment on one's own land. Hence if the obstruction on the road was the result of a lawful act on the part of the applicant on his land the obstruction caused on the road cannot be characterised as unlawful so as to attract Section 133. Collection of water on a road can be avoided by the authorities in charge of maintenance of the road providing drains on the sides of the road. The con-sequences of failure to perform duty or negligence on their part cannot make the precautionary steps taken by owners of private lands on the sides of the road for preventing water flowing from the road to their lands, acts contrary to law or unlawful acts. Hence the. obstruction on the road, even if it is deemed to be the result of an act of the owner of property on his land, cannot be considered unlawful obstruction on his part. I regret I am unable to agree with the decision in ((1946) 47 Cri LJ 217 (Nag)).
10. The provisions of Section 133 are applicable only to cases where the; is no doubt that the place where the alleged obstruction is caused is a public thoroughfare and that the obstruction caused is unlawful. The heart of this case really turns on the question whether the collection of rain water on the road is an unlawful obstruction made by the Revision Petitioner. Courts have got to be realistic. The revision petitioner had the right to raise the level of his land and put up a compound wall on it and prevent rain water from the road entering his property. Rain water stagnates on the road because the authorities in charge of maintenance of the road have not provided drains on the sides of the road. Instead of asking them to do what is their clear duty to ask the revision petitioner to demolish the compound wall and to lower the level of his land would be an unnecessary invasion of his indisputable rights in property. Collection of rain water on the road is not on account of unlawful obstruction caused by the revision petitioner. Section 133 of the Criminal Procedure Code does not apply to such a case. I allow this revision petition and quash the Magistrate's order.