Madhya Pradesh High Court
Rameshchandra vs Revenue Department on 21 August, 2019
Author: S.C.Sharma
Bench: S.C.Sharma
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.26232/2018 (-1-) W.P. No.26232/2018 (Rameshchandra Vs. State of Madhya Pradesh and others) Indore, dated: 21.08.2019 Parties through their counsel.
The petitioner before this Court has filed this present petition being aggrieved by the order dated 01.08.2018 passed by the Sub Divisional Officer.
The facts of the case reveal that the petitioner has constructed a building over the land bearing survey No.5.0 Area 0.389 Hectare without getting the land diverted keeping in view the provisions as contained under The Madhya Pradesh Land Revenue Code.
Learned counsel for the petitioner has categorically admitted before this Court that there was no diversion order passed at any point of time. A complaint was received by the Sub Divisional Officer that the building has been constructed without a diversion order and the building is in very bad shape and it can collapse at any point of time and even the construction has been raised over the land belonging to the State Government bearing survey No.502 and in those circumstances, proceedings were initiated against the petitioner.
This is the second visit of the petitioner. Earlier also, the petitioner came up before this Court challenging the proceedings by filing a writ petition and this Court vide order HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.26232/2018 (-2-) dated 08.05.2018 passed in W.P. No.13857/18 has permitted the petitioner to raise an objection in respect of jurisdiction before the Sub Divisional Officer itself and now, the Sub Divisional Officer has decided the matter and the issue in respect of objection has also been decided by the Sub Divisional Officer.
The Sub Divisional Officer has held that under Section 133 of the Cr.P.C., the Sub Divisional Officer does have the power to pass an appropriate order in respect of a structure which is going to collapse and the Sub Divisional Officer also does have the power keeping in view Section 59 and 172 of The Madhya Pradesh Land Revenue Code, 1959 to take cognizance in the matter and pass an appropriate order.
Undisputed facts of the case make it very clear that there was no diversion order in respect of the land over which the building has been constructed and the building is also in a bad shape and it is going to collapse.
A report was also received from municipal council in respect of the condition of the building and as it has become a nuisance, the Sub Divisional Officer has passed an order holding that he is having jurisdiction in the matter and the report has been obtained from municipal council as well as police authorities in respect of the building in question. Meaning thereby, no final order has been passed by the Sub Divisional Officer in the matter nor any order was passed by HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.26232/2018 (-3-) the revenue authorities or by the municipal council for removal of the building. The petitioner has stated that the Sub Divisional Officer does not have the power and he is jurisdictionally incompetent to deal with the matter.
A reliance has been placed upon a judgment delivered by this Court in the case of Sumer Singh Vs. Reshma Bai (W.P. No.2975/17) decided on 31.01.2018. In the aforesaid case, eviction of tenant was ordered by the Collector during Jan Sunwai. The aforesaid case is distinguishable on facts. Section 133 of Cr.P.C. reads as under:-
"Conditional order for removal of nuisance.
(1) Whenever a District Magistrate or a Sub- divisional Magistrate or any other Executive Magistrate specially empowered in this of behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers-
(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or
(b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or
(c) that the construction of any building, or, the disposal of any substance, as is likely to occasion configuration or explosion, should be prevented or stopped; or
(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.26232/2018 (-4-) building, tent or structure, or the removal or support of such tree, is necessary; or
(e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or
(f) that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order-
(i) to remove such obstruction or nuisance; or
(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or
(iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or
(iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or
(v) to fence such tank, well or excavation; or
(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order; or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the Order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.
(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court. Explanation-
A" public place" includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes.
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.26232/2018 (-5-) Section 133(d) of Cr.P.C. certainly empowers the Sub Divisional Officer to pass an appropriate order in respect of a building which is likely to fall and thereby causing injuries to the persons living or carrying on their business in the neighborhood or passing by, meaning thereby, the Sub Divisional Officer does have the power under Section 133 of Cr.P.C. to pass an appropriate order. The Sub Divisional Officer has sought a report from municipal authorities, from revenue authorities as well as from the police in the matter and therefore, this Court does not find any reason to interfere with the order passed by the Sub Divisional Officer. He has certainly passed the order keeping in view the provisions as contained under the Code of Criminal Procedure.
The Apex Court in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil reported in 2010 (8) SCC 329 in paragraph 49 held as under:-
"49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.26232/2018 (-6-)
(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) High Court's power of superintendence under Article HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.26232/2018 (-7-) 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE W.P. No.26232/2018 (-8-) will be counter-productive and will divest this extraordinary power of its strength and vitality."
Resultantly, this Court does not find any reason to interfere with the impugned order passed by the competent authority as the same does not suffer from any illegality, perversity or jurisdictional error. The writ petition is, accordingly, dismissed.
(S.C. Sharma)
N.R. Judge
Digitally signed by NARENDRA
KUMAR RAIPURIA
Date: 2019.08.31 15:23:27
+05'30'