Delhi District Court
Through Its Gpa Holder vs The State (Govt. Of Nct Of Delhi) on 19 April, 2017
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
Criminal Revision No. 75/2017
CNR No. DLNW01-003676-2017
Shree Shyam Associates
Prop. Madhu Devi
W/o Shri Manoj Kumar Meena
Resident of 108, Himmat Nagar,
Gopalpura, Tonk Road,
Jaipur (Rajasthan)
Through its GPA Holder
Shri Virender Kumar
Son of Sh. Sardar Ram Meena
Resident of 488, Dhani Dharwala,
Tehsil Khetri, District Jhunjhunu
...............................Revisionist
Versus
The State (Govt. of NCT of Delhi)
New Delhi
.................... Respondent
Date of allocation of revision: 17.04.2017
Date of conclusion of arguments: 18.04.2017
Date of judgment: 18.04.2017
Memo of appearance:-
Sh. Anil Kumar Yadav, learned counsel for revisionist.
Sh. __________, Ld. Substitute Addl. PP for State/respondent.
JUDGMENT
1 An interesting but little unusual situation has arisen.
Revision Petition No. 75/2017 (Shree Shyam Associates Vs State) page 1 of 7 2 There cannot be any qualm with respect to the power available to any District Magistrate or Sub Divisional Magistrate whereby, a conditional order can be made for removal of nuisance. Such action can be contemplated and initiated notwithstanding any other legal remedy which might by available.
3 Such conditional order can be passed, 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 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-
Revision Petition No. 75/2017 (Shree Shyam Associates Vs State) page 2 of 7
(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 re-creative purposes.
4 Though, it is not very satisfied but it can still be safely assumed that such Magistrate can invoke such power suo moto also. However, such suo moto action should commensurate with the magnitude of the nuisance and should not be resorted to in a casual manner without giving any opportunity to the person concerned. Revisionist is aggrieved by the conditional order dated 01/04/2017 passed by Sh. Santosh Kumar Rai, SDM Rohini. I have seen said impugned order and as per the contents of the order, Sh. Rai saw a truck bearing No. HR- 55-S-8140 plying on Main Kanjhawala Road on 31/03/2017 at 11.30 p.m. during normal inspection. The truck was heavily overloaded with fresh sand/rodi to such extent that such contents were beyond the height of the body level of the vehicle and its weight appeared to be more than 50 tonnes against the total laden weight Revision Petition No. 75/2017 (Shree Shyam Associates Vs State) page 3 of 7 of 25 tonnes,as prescribed. Such truck was directed to be handed over to SHO, PS Begum Pur with direction to retain the same in its custody till further orders. Thereafter, while exercising his power u/s 133 of Criminal Procedure Code, Sh. Rai directed the owner of the said truck to stop the practice of plying overloaded trucks with immediate effect. The owner of the truck was also directed to appear before him on 10/04/2017 and to submit a list of all the trucks owned or plied by him and to enter into a personal bond of Rs. 50,000/- with two sureties each of 25,000/- for complying said order or else to show cause as to why the conditional order may not be made absolute. His such order also contains the reasons which compelled him to pass such order. These are mentioned in para-2, 3, 4 and 5 and read as under:-
"2. And whereas, this plying of excessive overloaded vehicles may result into increasing the momentum of the vehicle (P=MV), rupture of wheels of the vehicles because of excessive load, thereby, resulting into loss of control over the vehicle by driver. This loss of control over vehicle due to excessive overload is a potential accident hazards and may result into serious road accidents killing/injuring passersby and damaging other vehicles any time. In this way these excessive loaded trucks (total laden weight of which sometimes increase more than 60 ton) is a running time bomb and it may result into loss of life of the common public.
3. And whereas, these excessive loaded trucks are the major reason for break-down of roads thereby slowing down of traffic and causing traffic jam and accident. This further causes unlawful obstruction to the common public in lawful use of public roads by them and is a large public nuisance.
4. And whereas, thousands of deaths occur in our country due to road accidents in which the death by trucks and other vehicles due to violation of Motor Vehicle Act like overloading etc. is prominent. Further, many deaths also take place as patients injured in road accidents are not taken to Hospital in time. The break-down of roads due to excessive overload again contributes significantly in this traffic jam.
5. And whereas, it is necessary thereof and expedient so to take necessary step in public interest to stop this menace of plying of overloaded Revision Petition No. 75/2017 (Shree Shyam Associates Vs State) page 4 of 7 trucks to ensure public safety and remove unlawful obstruction and public nuisance."
5 Thus, the truck was ostensibly seized for following reasons:-
I) It was overloaded and could result in loss of life in case of any accident.
ii) Such excessive loaded trucks are major reason for break-down of roads which result in slowing down of traffic and cause traffic jam which further causes unlawful obstruction resulting in large public nuisance.
iii) Many deaths took place in motor accident cases as injured are not taken to hospital in time due to break-down of roads.
iv) It was in public interest to stop the menace of plying of overloaded trucks to ensure public safety and also to remove unlawful obstruction and public nuisance.
Revision Petition No. 75/2017 (Shree Shyam Associates Vs State) page 5 of 7 6 The idea and intent may somewhat be good and bonafide but the manner in which the order has been passed shows undue haste. The Trial Court record was summoned and the Trial Court record does not contain anything except the copy of the order and photographs of the truck. Surprisingly, even the photograph does not depict the truck to be in overloaded condition. It is really beyond my imagination as to how the learned SDM was able to assess from a distance that the weight appearing to be more than 50 tonnes. I could have appreciated his such observation in case the truck had been got weighed before taking any action but the record does not reflect so at all. Undoubtedly, the vehicle should not be permitted to be plied in violation of permit condition or in overloaded condition. However, there is a separate provision in any such eventuality. Section 113 of Motor Vehicles Act, 1988, prescribes the limit of weight and limitations on use of vehicle and as per said Section, no person would drive or cause or allow to be driven in any public place any motor vehicle or trailer, the unladen weight of which exceeds the unladen weight specified in the certificate of registration or the laden weight of which exceeds the gross vehicle weight specified in the certificate of registration. The penalty for driving such vehicle is prescribed u/s 194 of Motor Vehicles Act. Here, There is no complaint from any particular locality or from public persons regarding the movement of such trucks through that area. No one has ever reported that plying of such truck was causing any nuisance of any public place or that such plying of vehicle was causing any physical discomfort or was injurious to health. Undoubtedly, if construction material is carried or transported in a truck, it has potential to cause violation but merely on the basis of unsubstantiated estimation, such important power envisaged in 133 of Cr.P.C. should not have been resorted to. I may not be misunderstood as if I am condoning the act of driving any vehicle in violation of directions of Motor Vehicles Act but the present case is certainly not the one where there was any exigency of passing an order u/s 133 Cr.P.C. The concerned SDM could have noted all the facts during his surprise inspection and instead of seizing the truck then and there should have rather drawn the proceedings later on after collecting all the data including the condition of the road, any possible health hazard, number of accidents taken place in that area Revision Petition No. 75/2017 (Shree Shyam Associates Vs State) page 6 of 7 due to such overloaded trucks. No exercise was undertaken on these crucial aspects and the truck was seized merely due to the fact that it was overloaded. Again, as already noticed above, the SDM did not have any magic wand with him, with the help of which, he could have assessed the weight while standing at a distance. There is one more aspect which I cannot resist commenting upon. When the conditional order was passed on 01/04/2017, the owner of the truck was also directed to appear before the Court of SDM on 10/04/2017. These proceedings are very significant proceedings and should not be taken in a casual manner. When I went through the record, I did not find any proceeding of 10/04/2017. It was expected that the learned SDM would have at least drawn some proceedings on 10/04/2017, even if, no such owner reported to him. Sh. Anil Kumar Yadav, learned counsel for revisionist has contended that the concerned SDM had seized more than 50 trucks by invoking Section 133 of Cr.P.C. and is not giving hearing anyone claiming that he has been appointed as Returning Officer for the coming Civic Polls in Delhi. It has also been argued that the truck owner is having national permit and when he is paying the road tax, his truck should not have been seized and such unjustifiable seizure is certainly going to affect the likelihood not only of the truck owner but also of the support staff including truck driver and cleaner etc. Since seizure was resorted to immediately but it was expected that the concerned Executive Magistrate or SDM also takes- up the matter on the next date fixed to avoid any such type of comment or remark.
7 Be that as it may, though the action on the part of SDM might be with full bonafide yet it was totally uncalled for and hasty as no ground work was carried out and for non-existing reasons, the truck was seized and a conditional order was passed u/s 133 of Cr.P.C. In view of my aforesaid discussion, I am of the considered view that there was no justifiable reason and ground with the SDM to have passed impugned order and, therefore, I hereby allow the revision petition and set aside the aforesaid conditional order No. F.SDM/(Rohini)/2017/983 dated 01/04/2017. As a necessary coronary, the concerned SHO, PS Begum Pur would immediately release the truck in question to its rightful owner.
Revision Petition No. 75/2017 (Shree Shyam Associates Vs State) page 7 of 7 8 A copy of this order be sent to learned SDM, Rohini along with Trial Court record.
9 A copy of this order be given dasti to revisionist and be also sent to concerned SHO to enable him to do the needful.
Announced in the open Court (MANOJ JAIN)
On this 19th day of April 2017 Addl. Sessions Judge (FTC)
North-West District, Rohini: Delhi
Digitally
signed by
MANOJ MANOJ JAIN
Date:
JAIN 2017.04.19
16:23:45
+0530
Revision Petition No. 75/2017 (Shree Shyam Associates Vs State) page 8 of 7