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Criminal Petition for Special Leave to Appeal No. 267 of 1971, decided on 2nd May 1972.
(On appeal from the judgment and order of the High Court of Punjab, Lahore, dated the 12th October 1971, in Criminal Miscellaneous No. 477/Q of 1971).
(a) Criminal Procedure Code (V of 1898),
S. 561‑A‑Ouash ment of criminal proceedings‑Evidence yet to be led in support of accusation made in complaint‑Proceedings not quashed under S.561‑A.
(b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 19.58),
S. 3‑Expression "property shall vest wholly and absolutely in Central Government free from all encumbrances"‑ Term "encumbrance" does not include rights of easement vested in owners of adjoining properties.
Asadullah Siddiqui, Advocate Supreme Court instructed by Salahuddin Sheikh, Advocate‑on‑Record for Petitioners.
Nemo for the State.
Date of hearing : 2nd May 1972.
On the complaint of Sh. Mehr Haq, a case was registered against the petitioners under section 430, P. P. C. on the accusation that they had closed down the irrigational channel which supplied canal water to the bungalow of the complainant and thereby they have been guilty of the offence under section 430, P. P. C. After investigation a challan was sent to the Court of a local Magistrate for trial. Before the trial opened, the petitioners moved the High Court under section 561, Cr. P. C., for quashing the proceedings on the ground that it was admitted in the complaint that water supply had already been cut, that no Court would allow the complainant to take water through the courtyard of the petitioner No. 2, and that at best the dispute was of a civil nature.
The High Court dismissed the petition as the proceedings in the trial Court were at an early stage. The petitioners seek leave to appeal.
We see no reason to differ with the view expressed by the High Court. Evidence has yet to be led in support of the accusations made in the complaint. It cannot, therefore, be postulated at present whether the petitioners have the right to close down the watercourse which supplied canal water to the bungalow of Sh. Mehr Haq and whether the dispute between the parties is of a civil nature.
It is urged that petitioner No. 1 is aged and it will result in unnecessary harassment if he has to appear before the Court. This difficulty can be overcome by applying to the Court for exemption under section 205, Cr. P. C.
It was next argued that as the house through which the water channel, in dispute, passed was acquired by the Central Government under section 3 of the Displaced Persons (Compensa tion and Rehabilitation) Act free from all encumbrances, the right of easement, if any, vested in the owner of the adjoining house stood extinguished. There is no merit in the plea at all. The term "encumbrance" in section 3 does not include rights of easement vested in the owners of the adjoining properties.
The petition is dismissed.
Leave refused.
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