Patna High Court
Dr. Om Prakash Mahansaria vs State Of Bihar And Ors. on 8 August, 1997
Equivalent citations: 1998(1)BLJR58
JUDGMENT Loknath Prasad, J.
1. This revision is directed against the ex-parte order dated 27.2.97 passed by S.D.M., Sadar Ranchi i.e. O.P. No. 2 in Case No. M/l932/96 which was a proceeding under Section 133 of the Code of Criminal Procedure and through this order the petitioner was directed to remove alleged public nuisance from a public place.
2. The fact in short for the purpose of this application is that O.Ps. of this case i.e. Ram Bilas Jalan and others filed a petition before the Section D.M. Sadar alleging therein that they had purchased different sub plots of Plot No. 1717 under Ward No. 1 of Ranchi Municipality from one Amiya Kumar Banerjee and the vendor for convenience of all the purchasers made arrangement for a public drain for drainage of the rainy water and other refuse, 96 'long and 3' wide which goes up to the main road i.e. kutchehry road, Similarly the vendor and rightful owner made an arrangement of a public way for all the purchasers having 18' wide and 96' long for the passage of the purchasers and this road leads to the main road i.e. Kutchehry road. The O.P. of the proceeding i.e. petitioner here also purchased 5 Kathas of land from one Santosh Devi Poddar in the year 1995 of a portion of plot No. 1717 and made construction of the house and encroached public drain by giving slab and thus, flow of the water was also obstructed and had further fixed a gate for using the drain portion as a passage for going to the clinic and thus, some portion of the passage has also been encroached. Accordingly, O.Ps. prayed for removal of the public nuisance.
3. The Section D.M. Sadar on being satisfied from the report has drawn up a proceeding under Section 133 of the Cr.P.C. and passed a conditional order on 2.11.96 asking the petitioner who was O.P. in the court below to remove the nuisance and filed the show cause, if any. In pursuance of the order of the S.D.M. the O.P. petitioner entered appearance and filed a show cause admitting therein that one Amiya Kumar Banerjee and his brother were the original owner of the entire plot No. 1717 and this plot was divided into several parts and it was sold to several persons including one Santosh Devi Poddar and from Santosh Devi Poddar he purchased a portion of this plot measuring 5 Kathas and the O.Ps. also purchased various sub-plots from the said original owner and had constructed house thereon. It is admitted by this petitioner that a passage for use of all the purcahsers was provided and similarly there was provision for a drain running west to East having 3' wide and 96' long but according to arrangement made by the original owner in the deed dated 28.2.86 in the name of Santosh Devi Poddar the vendor of this petitioner there was specific provision that the drain will be covered in order to avoid accumulation of mosquito, fly and the dust and accordingly the petitioner simply gave removeable slab on the drain for better health and hygine as the petitioner also being a doctor running a clinic there, and the petitioner has not obstructed the drain or the public way in any way.
4. So the petitioner O.P. denied the allegation of alleged encroachment and nuisance in a public place by filing show cause on 23.11.96. After that the final order dated 27.2.97 was passed by S.D.M. Sadar making the previous condition order absolute and consequently a Magistrate was deputed and the alleged obstruction and nuisance on the drain and the public passage was removed.
5. Being aggrieved by this order and removal of the slab etc. the petitioner filed this revision and it was contended on behalf of petitioner that actually there was no existence of public right and no nuisance and obstruction was caused on the drain or the passage and the drain was simply covered by is moveable slabs to avoid accumulation of mosquito, fly and dust for better hygine and health and further though the petitioner had denied the existence of public right or the nuisance by filing the show cause still the court below has not permitted him to adduce evidence in support of the denial as required under Sections 137 and 138 of the Cr.P.C. and arbitrarily passed final order i.e. impugned order so liable to be set aside. On the other hand the S.D.M. i.e. O.P. No. 2 also entered appearance in this revision and filed a show cause that on the application of the other O.Ps. proceeding under Section 133 of the Cr.P.C. was drawn up and conditional order was passed and the petitioner filed show cause on 23.11.96 and then the case was adjourned, to 12.12.96, 23.12.96 and 13.1.97 but the petitioner O.Ps. were not taking any steps nor adduced any evidence deliberately. More over from the police report it was also found that the petitioner had actually given concrete slabs and closed the drain and not allowing the flow of the water through the public drain and also made encroachment by giving a gate and utilizing the portion of the drain as passage and some portion of the long passage was also encroached thus, final order dated 27.2.97 was passed and on 2.3.97 in presence of one G.K. Verma the entire nuisance was removed and demolished.
6. The O.P. No. 3 and 4 also entered appearance and O.P. No. 3 also filed a separate show cause in which he has virtually supported the case of the O.P. No. 2 and the case of this O.P. more or less the same as discussed above and it was also contended that as the petitioner was not taking any steps and no evidence was adduced and the nuisance was found by the S.D.M. on the public place so the impuged order was passed and it does not require any interference.
7. From the submission of both the parties and their show cause it is apparently clear that plot No. 1717 was a big plot and the original owner was one Amiya Kumar Banerjee and his brother the original owner made several sub-plots and sold to various persons including O.P. Nos. 2 to 5. The petitioner also purchased 5 Kathas of land of a portion of plot No. 1717 from Santosh Devi Poddar and Manjula in the year 1995 and vendor of the petitioner actually acquired this portion of the plot from said Amiya Kumar Banerjee in the year 1986 i.e. Annexure-2. It is also admitted position that the original owner made an arrangement for passage to be used by all the purchasers for going to the main road i.e. Kutchery road and the passage run to the length of 96' long and 18' wide. Similarly an arrangement of drain was made and the drain is also running from West to East having 96' long and 3' wide. So admittedly the drain and the long passage are the public place for use of all the purchasers. Admittedly this proceeding under Section 133 of the Cr.P.C. was drawn up at the instance of O.P. Nos. 2 to 5 and the conditional order was passed as against the petitioner her on 2.11.96 and there was allegation that this very petitioner covered the drain by slab and also obstructed me flow of the water and fixed a gate and using the drain as a passage and also made encroachment on the long pubic passage. Admittedly the petitioner being the O.P. filed show cause against the conditional order on 23.11.96 denying the entire allegation and obstruction in the public place which resulted in nuisance.
8. It was contended on behalf of petitioner that if the petitioner being the O.P. filed show cause, denied about the existence of any public right or Existence of any obstruction and nuisance then in such a situation under Sections 137 and 138 of the Cr.P.C. the Magistrate concerned i.e. S.D.M., Sadar is required to take evidence as a summon case in support of the denial by the petitioner and only if the Magistrate is not satisfied about the denial then he will pass the final order for removal of the nuisance and if the Magistrate is satisfied and finds that there is reliable evidence in support of such denial he shall stay the proceeding until the matter of existence of such right has been decided by a competent court. It was further contended that in view of the mandatory provision of Sections 137 and 138 of the Cr.P.C. it was the bounded duty of the S.D.M. to take evidence of denial from the petitioner but that had not been done. In support of the contention learned Counsel for the petitioner has drawn my attention towards the certified copy of the order sheet of the proceeding itself which clearly indicate that after filing of the show cause by the petitioner on 23.12.96 the S.D.M. transferred the file in his own personal file and next date was 13.1.97 and on 13.1.97 the next date was fixed to 17.1.97 but there is over writing and subsequently over writing was made and it was made as 27.1.197. Further another order sheet was written on 13.1.197 which was also penned through and surprisingly on 27.1.97 the S.D.M. recorded that first party i.e. O.Ps. are present and the petitioner was not present so he heard learned Counsel for the O.Ps. and reserved the order and surprisingly the impugned order dated 27.2.97 was passed making conditional order absolute and the petitioner could learn about this order only on 2.3.97 when a Magistrate came for demolition.
9. On perusal of the order sheet of the proceeding it appears that the order sheets were not properly written and in many places there is cutting, over writing and rewriting which clearly supports the case of the petitioner that the record in question was never placed in the Izlas and the petitioner or his advocate had no information about the next date and scrumptiously all in a sudden on 27.1.97 the argument on behalf of O.Ps. was heard in absence of the petitioner.
10. On the other hand learned Counsel for the O.P. No. 2 i.e. S.D.M., Ranchi Mr. Delip Jerath and that of learned Counsel of the other O.Ps. Mr. V.P. Singh, Advocate submitted that it is more or less admitted case of the parties that a common passage and the common drain was provided for all the purchasers by the vendor of the purchasers and also for the use of all the purchasers then in that view of the matter, putting concrete slabs on the drain to obstruct the flow of the water and erecting gate to use the drain portion as a passage that too at the cost of the main passage is definitely nuisance on the public place and obstruction in such a situation, and more particularly when the petitioner who was O.P. in the court below, had not appeared on several dates deliberately then it will amount that he had not adduced any evidence on the point of denial and thus, the S.D.M. was perfectly justified in passing final order for removal of the nuisance on the public place. On the other hand, it was contended on behalf of petitioner that in the deed of 1986 executed by the original owner in favour of Santosh Devi Poddar it has been clearly mentioned by Mr. Banerjee, the original owner that the purchaser has a right to keep the drain covered so the petitioner was definitely entitled to cover the drain by removeable concrete slabs and it certainly will not cause any obstruction in flow of water. In fact in the deed of 1986 there is clearly recital by the original owner that the purchasers will keep the drain covered and as such if the petitioner covers the drain by putting removeable concrete slabs and if evidence is adduced on behalf of petitioner to the satisfaction of the court below and also by through examination by the expert that by mere giving of the slabs will not obstruct the flow of the water in the drain then certainly for better maintenance of the drain removeable slabs is permissible according to desire of the original owner of the land and it will definitely not be an obstruction or nuisance. However, resection of gate and using the portion of the drain to be covered by slabs as a passage or encroaching the main passage is definitely not permissible and it is an encroachment and public nuisance.
11. Moreover, from the certified copy of the proceeding of the Court below it is apparently clear that there are over writing, cutting and rewriting which clearly indicate that the proceeding was not conducted properly or fairly and the petitioner had no knowledge about the next date and so he was prevented from giving evidence of denial. It is also to be borne in mind that the petitioner is holily contesting this revision and also filed show cause in the Court below. In such a situation it does not stand to reason that he will not appear before the S.D.M. if the date was known to him and allow the proceeding to go ex-party.
12. In such a situation I am inclined to hold that the proceeding was not conducted properly and in fair manner and the S.D.M. has completely ignored the provision of Sections 137 and 138 of the Cr.P.C. and has not allowed the petitioner to adduce evidence in support of the denial of the public place and the nuisance though show cause had been filed denying the allegation.
13. As the petitioner was not allowed opportunity to adduce evidence in support of the denial after filing of the show cause in view of the provision of Sections 137 and 138 of the Cr.P.C. the passing of the final order under Sections 138 of the Cr.P.C. without complying the provision as mentioned above, is definitely against the provision of the law and as such liable to be set aside Division Bench of this Court in similar circumstances in a case reported in 1992 Vol. II PLJR 1408 Santosh Kumar Sharma v. Motihl Mahawar, held that Section 137 of the Cr.P.C. provides that if the proceeded denies existence of public rights the Magistrate had to hold an enquiry in support of denial in terms of Sections 137 and 138 of the Cr.P.C. and the provision of Section 138 of the Cr.P.C. comes into play only in the event if it is found by the Magistrate that there does not exist any evidence in support of the denial of existence of public right.
14. So keeping in view of the provision of Sections 137 and 138 of the Cr.P.C. it can be said that allegation of the petitioner that he was not allowed opportunity to adduce evidence in support of the denial, appears to be true and in such a situation the final order passed by the S.D.M. Sadar on 27.2.97 for removal of the nuisance through the Office-in-charge, Kotwali P.S. on the drain and also in the public passage situates plot No. 1717 of Ward No. 1 is hereby quashed and the proceeding itself is remitted back to the S.D.M. Sadar for making a fresh enquiry and for allowing the petitioner to adduce evidence in support of the denial as mentioned above and after that the S.D.M. will pass order after examining the evidence of denial as required under Sections 137 and 138 of the Cr.P.C. It is hereby further observed that if after enquiry and on evidence the S.D.M. will find that actually the petitioner had right to give removable slabs on the drain to avoid accumulation of mosquito, fly and dust for better hygine and health and such removeable slabs will not cause the obstruction of the flow of the water then the petitioner may be permitted after the enquiry to fix such slabs in the drain under proper supervision of some expert engineer.
15. Accordingly this application is allowed and the order dated 27.2.97 passed in Case No. M/1932/96 by the S.D.M., Sadar is hereby set aside and the case is remitted back to the S.D.M., Sadar for further enquiry and final order in the light of observations made above.