Himachal Pradesh High Court
2018 vs Tara Devi & Others on 20 October, 2021
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE DAY OF OCTOBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC NO.98 OF
2018
Between:-
SHANTA DEVI
WIFE OF SH. RATTAN SINGH,
RESIDENT OF VILLAGE CHUNNER,
TEHSIL PACHHAD,
DISTRICT SIRMOUR, H.P.
.....PETITIONER
(BY SH. AJAY SHANDIL, ADVOCATE)
AND
1. SMT. TARA DEVI
WIFE OF SH. TULA RAM,
RESIDENT OF VILLAGE CHUNNER,
TEHSIL PACHHAD,
DISTRICT SIRMOUR, H.P.
2. SH. DHANBIR SINGH
SON OF SH.AMAR SINGH,
RESIDENT OF VILLAGE CHUNNER,
TEHSIL PACHHAD,
DISTRICT SIRMOUR, H.P.
3. SH. RAJU
SON OF SH. RAM PAL,
RESIDENT OF VILLAGE CHUNNER,
TEHSIL PACHHAD,
DISTRICT SIRMOUR, H.P.
4. SMT.SHANTA DEVI
WIFE OF DHANBIR SINGH,
RESIDENT OF VILLAGE CHUNNER,
TEHSIL PACHHAD,
DISTRICT SIRMOUR, H.P.
5. SMT.MANJU
WIFE OF SH. DALBIR SINGH,
RESIDENT OF VILLAGE CHUNNER,
TEHSIL PACHHAD,
DISTRICT SIRMOUR, H.P.
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6. SH. MUKESH
SON OF SH. RATTAN SINGH,
RESIDENT OF VILLAGE CHUNNER,
TEHSIL PACHHAD,
DISTRICT SIRMOUR, H.P.
.
7. SH. KRISHAN SINGH
SON FO SH. RATTAN SINGH,
RESIDENT OF VILLAGE CHUNNER,
TEHSIL PACHHAD,
DISTRICT SIRMOUR, H.P.
.....RESPONDENTS
(BY SH.SUNIL CHAUHAN, ADVOCATE)
Reserved on: 17.9.2021
Decided on: 20.10.2021
Whether approved for reporting?
This petition coming on for pronouncement of
judgment this day, the Court delivered the following:
JUDGMENT
This petition has been preferred under Section 482 of
the Code of Criminal Procedure (hereinafter referred to as
'Cr.PC'), against the order dated 21.11.2017, passed by learned
Sub Divisional Magistrate, Rajgarh, District Sirmour, H.P., in Case
No.96/4 of 2015, titled as Shanta Devi vs. Tara Devi & others.
2. On the basis of a complaint filed by petitioner Shanta
Devi, Station House Officer Pachhad, District Sirmour, H.P.,
prepared a Kalandra dated 16.10.2015, which was received in
the Office of Sub Divisional Magistrate, Rajgarh on 29.10.2015
and it was registered under Section 147 Cr.P.C., as the dispute
between the parties was with respect to right of use of
water/water source and for quarrel between parties, a cause for
breach of peace was existing.
3. Learned Sub Divisional Magistrate, after calling
parties to file their respective claim and counter claim, recorded
statement of complainant Shanta Devi. On request of both the
parties, demarcation of the spot was conducted on 14.10.2016
.
and thereafter, the land in which water source is existing, was
identified.
4. As per demarcation, water source was found in
Shamlat land, situated in Khasra No.903/899/879 in Village
Chunner, whereupon, villagers were having their collective right
being Shamlat land. Demarcation dated 14.10.2016 was objected
by complainant Shanta Devi by filing an application dated
20.10.2016.
5. After taking into consideration entire material
available before learned Sub Divisional Magistrate, he has
returned findings that villagers of Village Chunner are having
common right of using path and sharing of water as path and
water source are neither partitioned nor can be put under
exclusive right of any individual/community and, therefore, he
has ordered that common sharing of water from the water source
in reference, situated in Shamlat land in Village Chunner, which
is in dispute, shall be made on equitable basis of all residents of
Village Chunner with further direction that for the said purpose, a
common water intake tank, shall be constructed at the source
through Gram Panchayat concerned or by beneficiaries
themselves and further that local residents/villagers have also
been restrained from laying individual pipes from the said water
source.
6. Learned counsel for the petitioner has submitted that
after passing of the impugned order, petitioner is not laying her
.
individual pipes, but other villagers including respondents are
laying their individual pipes in the water source resulting into
non availability of water to the petitioner and others and,
therefore, petitioner has been constrained to file present
petition.
7. Learned Sub Divisional Magistrate vide impugned
order dated 21.11.2017 has restrained all local residents,
including respondents and petitioner from laying individual pipes
to fetch water from the water source, therefore, the impugned
order does not give any right to anybody to lay pipes for
individual collection of water, rather direction has been given to
construct water intake tank at the source either through Gram
Panchayat or by beneficiaries (villagers themselves) so that
water can be distributed to all equitably irrespective of caste or
status of the villagers/beneficiaries.
8. Learned counsel for the respondents has submitted
that respondents are obeying the restraint order passed by
learned Sub Divisional Magistrate and none of them has laid
individual pipes for collection of water from the water source so
as to deprive others, including petitioner and her family, from
water.
9. Be that as it may, for violation of restraint order by
either party, opposite party shall have to take appropriate
recourse of law for punishing the violator and to make water
available to all equitably. Neither petitioner nor respondents are
.
entitled to deny right of petitioner, respondents or other entitled
persons, to get and use water from the water source situated in
Shamlat land irrespective of their caste or status in the
society/village.
10. In view of above, I do not find any reason to interfere
in the order dated 21.11.2017, passed by learned Sub Divisional
Magistrate, Rajgarh, District Sirmour, H.P. However it is clarified
that none of the villagers/local residents are entitled to lay
individual pipes to collect water from the water source for
personal use or otherwise and for violation of such restraint order
by any villager, including petitioner and respondents, parties are
at liberty to avail appropriate remedy for such violation.
11. Petitioner and/or respondents may, rather must,
approach the Gram Panchayat for construction of water tank so
as to make the water available to all without discrimination and
to avoid unnecessary quarrel and fight between beneficiaries on
the spot for use of water. Beneficiary villagers are also at liberty
to construct a water intake tank on the spot, if feasible, as
suggested or ordered by learned Sub Divisional Magistrate in the
impugned order, but with consensus of all, by taking help for that
purpose from the concerned Panchayat in order to provide water
to all villagers entitled to get the same.
12. Petition is disposed of in aforesaid terms, so also
pending application(s), if any.
13. Parties are permitted to produce a copy of this
judgment, downloaded from the web-page of the High Court of
.
Himachal Pradesh, before the authorities concerned, and the said
authorities shall not insist for production of a certified copy but if
required, may verify it from Website of the High Court.
(Vivek Singh Thakur),
Judge.
October 20, 2021
(Purohit)
