Cannot Be Compelled To Remove Blockage & Let Neighbour's Dirty Water Flow Onto Courtyard, S.133 CrPC Not For Settling Private Disputes: Patna HC

The Patna High Court has ruled that an individual cannot be compelled to allow drainage from a neighbor's house onto their private property under the guise of preventing a public nuisance.

It had been contended that the neighbour of the petitioner had drained his dirty water onto the petitioner's courtyard, which had been blocked by the petitioner. However, the neighbour then approached the trial court and obtained an order under Section 133 CrPC, compelling the petitioner to remove the alleged public nuisance which he had caused by blocking his neighbour's dirty water from flowing onto his courtyard.

The High Court emphasized that an individual's right to property is constitutionally protected and that no person can be forced to endure a nuisance on their land due to another's actions.

Justice Jitendra Kumar, presiding over the case, observed, “The land of the petitioner on which dirty water was flowing from the courtyard of complainant/ O.P. No. 2 is his raiyati land as admitted by Circle Officer and D.C.L.R and hence, the complainant/O.P. No. 2 had no right to flow his dirty water from his courtyard on the land of the petitioner, because no one can use his property to illegal harm, damage or nuisance to the neighbor.”

“The petitioner was right to block the drainage coming from the courtyard of the complainant/O.P. No. 2, because he has right to use his property without any nuisance or illegal harm from any neighboring people. In fact, the complainant should have taken measure to see that no dirty water flows from his house on the private property of the neighbor, because he cannot enjoy his property to harm or nuisance to the neighbor,” Justice Kumar added.

The ruling was delivered in a petition filed under Section 482 CrPC seeking to quash the order of the 1st Additional Sessions Judge, Darbhanga, which had upheld an earlier directive of the SDM, Sadar Darbhanga. The SDM had ordered the petitioner to remove an obstruction that was allegedly preventing the flow of wastewater from the complainant's house.

The dispute arose when the complainant, Girindra Mohan Jha filed a complaint before the SDM, alleging that the petitioner had blocked the flow of dirty water from his house, causing stagnation and a potential health hazard. The SDM, relying on a report from the Circle Officer, ruled that the obstruction should be removed under Section 133 CrPC, citing the possibility of an epidemic due to water accumulation. The order was later upheld by the Sessions Court, which dismissed the petitioner's revision on the ground that the SDM's order was interlocutory and could not be challenged under Section 397(2) CrPC.

The petitioner argued that the land in question was his private property and not public land, as wrongly recorded in government records. He contended that the complainant had no legal right to discharge dirty water onto his land and that the SDM's order had effectively forced him to accept an encroachment on his property. It was also argued that the SDM had erred in passing an absolute order under Section 133 CrPC without first issuing a conditional order and providing an opportunity to show cause, as required under the law.

The High Court at the outset, expounded on the scope of Section 133 CrPC, which deals with “Conditional order for removal of nuisance” and empowers Executive Magistrates to remove obstructions or nuisances affecting public places or ways lawfully used by the public. The court reiterated the principles laid down by the Supreme Court in Kachrulal Bhagirath Agrawal v. State of Maharashtra, stating, “Proceedings under Section 133 are not intended to settle private disputes between different members of the public. They are in fact intended to protect the public as a whole against inconvenience. A comparison between the provisions of Sections 133 and 144 of the Code shows that while the former is more specific, the latter is more general.”

Further, the court pointed out that the SDM had not followed due process by failing to pass a conditional order before making the directive absolute. The judge noted, “I find that learned S.D.M. had directed the petitioner to remove the obstruction/blockage without giving him any opportunity to appear and show cause. As such, the order passed by learned S.D.M. was a final one and not an interim one. Hence, the petitioner herein being aggrieved had rightly invoked revisional jurisdiction of Sessions Court. But learned Sessions Court has erroneously held that the impugned order passed by learned S.D.M. was interim one.”

Additionally, the court observed that the land on which the complainant's wastewater was flowing had been wrongly classified as Anabad Bihar Sarkar (government land) in revenue records, despite the Circle Officer's admission that it was, in fact, private property.

Thus, allowing the petition, the High Court quashed both the SDM's order and the Revisional Court's order. The court ruled that the entire proceedings were an abuse of process and could not be sustained under law.

“Hence, invoking power under Section 133 Cr.PC in the given facts and circumstances of the case by learned S.D.M. was nothing but abuse of the process of the Court and the whole proceeding arising out of M.R. Case No. 3225 of 2013 is liable to be quashed and set aside. Learned Revisional Court has committed error by upholding the order passed by learned S.D.M. It has also erroneously held that the order passed by learned S.D.M. was interim one,” the Court concluded.

Case Title: Kashi Kant Jha vs State Of Bihar and anr

LL Citation: 2025 LiveLaw (Pat) 17

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