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A.S.P.L.V.R. Ramaswami Chettiar and ors. Vs. S.R.M.S.V.R. Ramanathan Chettiar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in91Ind.Cas.537
AppellantA.S.P.L.V.R. Ramaswami Chettiar and ors.
RespondentS.R.M.S.V.R. Ramanathan Chettiar
Cases ReferredJagarnath Sahu v. Parmeshwar Narain
Excerpt:
criminal procedure code (act v of 1898), section 188 - water-course leading to public tank--catchment area, embankment of, cutting of--diversion of water--obstruction--proceedings under section 133, whether competent. - .....not be applied to it. their lordships are apparently prepared to concede that this field over which water flowed could be described in a wide sense, as a channel. that case is not, therefore, in the petitioner's favour. here, the finding being that the urani is a public urani, the water-course carrying the water to it must beheld to be a public watercourse and any interference with that water course will fall under section 133. the only point taken before me failing, the petition must be dismissed.
Judgment:
ORDER

Krishnan, J.

1. This is an application to revise an order passed under Section 133 of the Cr.P.C. with reference to a water-course running into an urani in the village of Puduvayal in Ramnad District. The Magistrate in the first instance had held that this urani into which this water-course ran was a private one and, therefore, he could hot take action under Section 133, Cr.P.C. On the parties coming up in revision to this Court, this Court revised that finding and held that the urani was a public tank and directed fresh orders to be passed. The Magistrate has now taken evidence and under Section 133 has directed the petitioners before me to restore the embankment of the catchment area to its original condition about a foot high and to close the newly opened channel from the north to the south marked A in Ex.-A and to remove all obstructions caused by them to the free flow of water into the urani within 15 days from the date of the orders. Dr. Swaminathan appearing for them has contended that this order was an incompetent order and that Section 133 does not apply to the facts of this case. His contention is based on the allegation that there is no river or channel in the present case which has been obstructed and he contends that under the second paragraph of Section 133 it is only an unlawful obstruction to a way, river or channel which may be lawfully used by the public or an obstruction in a public place that can be ordered to be removed. He contends that the present order of the Magistrate directing the restoration of the embankment of the catchment area is quite beyond the scope of Section 133. I am unable to accept his arguments. It is clear from the complaint that has been filed in the case that there is a water-course taking water to the urani in question and the allegation of the respondents before me was that this water-course had been obstructed partly by building up a blind in it, partly by cutting open another channel to take away the water from it and partly by cutting away the embankment at a point B round the catchment area. The word 'channel', no doubt, is not defined in the Code but, I think the word is quite wide enough to include the state of affairs in this case. We have a catchment area in the centre of which there is a water-course which is obstructed and the water which flows into the water-course is attempted to be carried away by the petitioners before me to their own village tank and the way they do it is by building a bund and cutting a new channel and by cutting down a new portion of the old bund of the catchment area which the Magistrate has found, has existed for the last 30 years and more. The effect of cutting the bund of the catchment area is to make the water falling on the catchment area run away in a direction different to that of the water-course and to prevent it falling into the urani; that, I think, can be held to be an obstruction to the watercourse. The point was not properly taken in the lower Court and hence we do not find any discussion of it, in the judgment of the Magistrate for he begins by saying, 'The only question that remains to be considered is whether the counter-petitioners interfered with the embankment of the catchment area and put up a new channel as alleged in the petition'. If the point had been properly put forward, clear evidence would have been available to show what exactly the position of the catcbment areas and how the cutting open the bund of that catchment area affects the water course W the channel in the centre of the catchment area. I am, therefore, inclined to think that this is an order which the Magistrate could have competently passed under Section 133 and on the merits the petitioners have no case whatever. My attention was called to the case reported as Jagarnath Sahu v. Parmeshwar Narain 23 Ind. Cas. 181 12 A.L.J. 248 : 15 Cr. L.J. 229 where the learned Judge held that a field which was on a lower level than the adjoining fields and over which the surplus water of these fields used to flow into a tank, even if it could be described as a channel, was not such a channel as had been or could be lawfully used by the public and action could not be taken under Section 133 of the Cr.P.C. for the, removal, of any obstruction from it. This ruling is based on the fact that the field over which the water used to flow was not a public field and hence Section 133 could not be applied to it. Their Lordships are apparently prepared to concede that this field over which water flowed could be described in a wide sense, as a channel. That case is not, therefore, in the petitioner's favour. Here, the finding being that the urani is a public urani, the water-course carrying the water to it must beheld to be a public watercourse and any interference with that water course will fall under Section 133. The only point taken before me failing, the petition must be dismissed.


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