The rights of riparian owners are private personal rights and not the rights of the public, and therefore, the magistrate acted without jurisdiction in issuing an order under S.133 of the Criminal Procedure Code.

Headnote:
Jurisdiction - Riparian Rights - The court held that the magistrate acted without jurisdiction in issuing an order under S.133 of the Criminal Procedure Code to remove a dam that interfered with the rights of lower riparian owners, as the rights of riparian owners are private personal rights and not the rights of the public.
Fact of the Case:

The respondent, a lower riparian owner, complained that the petitioner, a higher riparian owner, had cut off the flow of water by putting up a masonry dam across the river, depriving his lands of the water they had a right to enjoy. The learned Magistrate issued a conditional order under S.133 of the Criminal Procedure Code requiring the petitioner to remove the bund or show cause against the removal, and later made the conditional order absolute under S.137(3).
Finding of the Court:

The court found that the dispute did not come within Chapter X of the Code and that the learned Magistrate acted without jurisdiction. The court held that S.133 empowers a magistrate to take action only when there is an unlawful obstruction or nuisance that should be removed from a way, river, or channel lawfully used by the public, and that the rights of riparian owners are private personal rights and not the rights of the public.
Issues: The main issue was whether the magistrate had jurisdiction to issue an order under S.133 of the Criminal Procedure Code to remove the dam that interfered with the rights of lower riparian owners.
Ratio Decidendi: The court's decision was based on the interpretation of S.133 of the Criminal Procedure Code and the distinction between public rights and private personal rights of riparian owners.
Final Decision: The petition was allowed, and the order made by the Magistrate was set aside.

Judgment :-

1. The complaint of the respondent, a lower riparian owner was that the petitioner, a higher riparian owner, had, by putting up a masonry dam across the river, cut off the flow of water and deprived his lands of the water they had a right to enjoy. This interference with the rights of the respondent and other lower riparian owners was the basis of the learned Magistrate's conditional order under S.133 of the Criminal Procedure Code requiring the petitioner to remove the bund or to show cause against the removal, as of his order under S.137 (3) making the conditional order absolute. It seems to me obvious that this dispute does not come within Chapter X of the Code and that the learned Magistrate acted altogether without jurisdiction. S.133, (in so far as is relevant for the present purpose) empowers a magistrate to take action thereunder when he considers "that any unlawful obstruction or nuisance should be removed from any way, river or channel which is or may be lawfully used by the public," and, as pointed out in In re Mahar ana Shri Jaswatsangji (ILR. XXII Bombay 988 at page 993), these words "imply not only that the river or channel must be one of public use, but that the obstruction must be of that public use." S.139A enacted after this decision clearly defines the scope and purpose of an order under S.133. It is for "the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place." It follows that the section can be used only where there has been an invasion of public rights. But the rights of riparian owners, however numerous they may be, are the private personal rights of each individual owner and are not the rights of the public, and, in directing the petitioner to remove the dam in question on the ground that it interfered with the rights of irrigation of the lower riparian owners, the learned Magistrate took it upon himself to decide what Chapter X of the Code did not authorise him to decide and what was really for a civil court to decide.

I allow this petition and set aside the order made by the Magistrate.

Allowed.

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Judicial Analysis