Court No. - 24
Case :- APPLICATION U/S 482 No. - 391 of 2003 Applicant :- Ashfaq Ahamd Opposite Party :- State Of U.P. & Others Counsel for Applicant :- J.J. Munir,Shiv Sagar Singh Counsel for Opposite Party :- Govt. Advocate
Hon'ble Yashwant Varma,J.
Heard Shri Abu Sufiyan Kazmi, learned counsel for the applicant and the learned A.G.A.
This application seeks quashing of the Case No. 8 of 2002 (State Vs. Ashfaq Ahmad) pending before the Special Judicial Magistrate (Canal), Sharda Sayak Khand-32, Azamgarh alleging commission of offences under Section 70 of the Northern India Canal & Drainage Act, 1873.
A perusal of the complaint lodged against the applicant establishes that it rests on the allegations that the applicant was opening a door of an under construction house towards the face of the canal. It is further alleged that although he was asked to desist from doing so, he did not accede to the instructions issued by the complainant. The court below has, consequently on lodging of the said complaint, proceeded to take cognizance and summoned the applicant.
In order to evaluate the submission of the learned counsel that the complaint allegations clearly do not evidence the commission of an offence under the Act, it would be relevant to extract the provisions of Section 70 of the Act, which read thus:
"70. Offences under the Act. – Whoever, without proper authority and voluntarily, does any of the following acts, that is to say : -
(1) damages, alters, enlarges or obstructs any canal or drainage work,
(2) interferes with, increases or diminishes the supply of water in, or the flow of water from, through, over or under, any canal or drainage work,
(3) interferes with or alters the flow of water in any river or stream, so as to endanger, damage or render less useful any canal or drainage work,
(4) being responsible for the maintenance of a water course, or using a water-course, neglects to take proper precautions for the prevention of waste of the water thereof, or interferes with the authorized distribution of the water therefrom, or uses such water in an unauthorised manner,
(5) corrupts or fouls the water of any canal so as to render it less fit for the purposes for which it is ordinarily used ,
(6) causes any vessel to enter or navigate any canal contrary to the rules for the time being prescribed by the State Government for entering or navigating such canal,
(7) while navigating on any canal, neglects to take proper precautions for the safety of canal and of vessels thereon,
(8) being liable to furnish labourers under Part VIII of this Act, fails, without reasonable cause, to supply or to assist in supplying the labourers required of him,
(9) being a labourer liable to supply his labour under Part VIII of this Act, neglects, without reasonable cause, so to supply, and to continue to supply, his labour,
(10) destroys or moves any level-mark or water-gauge fixed by the authority of a public servant,
(11) passes, or causes animals or vehicles to pass, on or across any of the works, banks or channels of a canal or drainage-work contrary to rules made under this Act, after he has been desired to desist therefrom;
(12) violates any rule made under this Act for breach whereof a penalty may be incurred, Penalty. – shall be liable, on conviction before a Magistrate of such class as the State Government directs in this behalf, to a fine not exceeding fifty rupees, or to imprisonment not exceeding one month, or to both."
As is evident from the above provision, an offence under the Act comes into existence where any person without authority damages, alters, enlarges or obstructs any canal or interferes with the flow of water or where he corrupts or fouls the water. The mere opening of a door facing the canal is not an offence, which would fall within the ambit of Section 70 of the Act. The Court additionally notes that the complaint carries no allegations, which may by any stretch of imagination establish or attract the provisions of sub-sections (1) to (12) of Section 70. The complainant nowhere alleges how the opening of the door would fall within the mischief of sub-sections (1) to (12) of Section 70. The allegations levelled in the complaint, thus, do not establish the commission of any offence under Section 70.
Accordingly, the application is allowed. All proceedings relating to Case No. 8 of 2002 (State Vs. Ashfaq Ahmad) are hereby quashed.
Order Date :- 27.7.2018 VKS