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. 73/2017
CNR No. DLNW01-003674-2017
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 Shimbhu Dayal
Son of Sh. Rohitas Singh
Resident of Village Bayal,
Tehsil Narnaul, District Mahendragarh,
Haryana
...............................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: 19.04.2017
Date of judgment: 19.04.2017
Memo of appearance:-
Sh. Anil Kumar Yadav and Sh. Inder Chand, learned counsels for
revisionist.
Sh. Girish Giri, Ld. Substitute Addl. PP for State/respondent.
Sh. Rohit Bansal, Government Counsel.
Sh. Amit Kumar Singh, Executive Magistrate, Rohini and Sh. Savin
Sehrawat, Reader/UDC in the Court of SDM.
JUDGMENT
1 An interesting but little unusual situation has arisen.
Revision Petition No. 73/2017 (Shree Shyam Associates Vs State) page 1 of 9 2 There cannot be any qualm with respect to the power available to any District Magistrate or Sub Divisional Magistrate whereby, a conditional order u/s 133 Cr.P.C. can be passed for removal of nuisance. Such action can be contemplated and initiated notwithstanding any other legal remedy which might be also available.
3 Such conditional order can be passed by him if on receiving report of a police officer or on the basis of other information and on taking such evidence (if any) as he thinks fit, he 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, 4 In any such situation, such Magistrate may make a Revision Petition No. 73/2017 (Shree Shyam Associates Vs State) page 2 of 9 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.
5 Though, not very clear but let me assume that Magistrate can invoke such power suo moto also. Nevertheless, 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 real opportunity to the person concerned.
6 Revisionist is aggrieved by conditional order dated 29/03/2017 passed by Sh. Santosh Kumar Rai, SDM Rohini. He happened to see a truck bearing No. RJ-14-GF-7302 plying on Main Kanjhawala Road on 29/03/2017 at 03.30 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 Revision Petition No. 73/2017 (Shree Shyam Associates Vs State) page 3 of 9 vehicle and its weight appeared to be more than 50 tonnes against the total laden weight of 25 tonnes, as prescribed. Such truck was directed to be handed over to SHO, PS Kanjhawala with direction to retain the same in its custody till further orders.
7 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 05/04/2017 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 should not be made absolute.
8 His such order also contains the alleged reasons which compelled him to resort to said section. These are mentioned in para numbers 2, 3, 4 and 5 of impugned order 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.
Revision Petition No. 73/2017 (Shree Shyam Associates Vs State) page 4 of 9
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 trucks to ensure public safety and remove unlawful obstruction and public nuisance."
9 Thus, the truck was, ostensibly, seized for following reasons:-
I) It was overloaded and could result in loss of life in case of any possible 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.
10 Term 'nuisance' is not capable of an exact definition though, broadly speaking it would mean an act or omission which causes injury, danger or annoyance to common public. Moreover, in order to constitute a public nuisance, Revision Petition No. 73/2017 (Shree Shyam Associates Vs State) page 5 of 9 the injury, danger or annoyance must be caused to the public, or to the people in the vicinity or to persons who may have occasion to exercise any public right. The object and purpose behind S. 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in the sense that if the magistrate fails to take recourse immediately, irreparable damage would be caused to the public. All in all, it needs to be resorted in extreme emergent situations only. Merely and solely, the truck was overloaded, it cannot be, always, deduced robotically that it was causing nuisance much less public nuisance. The intent behind passing of impugned order might be a bonafide one but the manner of its execution is certainly not. The order has been passed with undue haste and depicts the same to be a pre-meditated one.
11 Trial Court record was summoned and it was found containing copy of the order and photographs of the truck. Nothing further at all.
12 Surprisingly, even the photographs do not illustrate the truck to be in overloaded condition. Moreover, it is really beyond my imagination as to how the learned SDM was able to assess, from distance, that the weight appeared to be more than 50 tonnes. I could have appreciated such observation in case the truck had been got weighed before taking any action but the record does not reflect so at all.
13 Undoubtedly, the vehicle should not be permitted to be plied in violation of permit condition or in overloaded condition. Of course, there is a separate provision to meet 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 also prescribed u/s 194 of Motor Vehicles Act.
Revision Petition No. 73/2017 (Shree Shyam Associates Vs State) page 6 of 9 14 Thus, mere fact that the truck was overloaded should not have been the reason to pass any order u/s 133 Cr.P.C. If such analogy is accepted that tomorrow, overloaded buses would also invite seizure in the same fashion. This section stands attracted when there is public nuisance. If such plying of trucks, simultaneously, results in nuisance in one way or other, conditional order can be made.
15 Here, whereas, there is no complaint from any particular locality or from public persons regarding any bizarre or disturbing movement of trucks through that area. No one ever reported to SDM that plying of such truck was causing any nuisance in any public place or that such plying of vehicle was causing any physical discomfort or was injurious to health.
16 Undoubtedly, if construction material is carried or transported in a truck, it has potential to cause pollution but merely on the basis of unsubstantiated estimation and wild imagination, such all-important power envisaged in 133 of Cr.P.C. should not have been resorted to. SDM needs to follow the legislation instead of legislating indirectly. The concerned SDM, instead of seizing the truck then and there, should have rather made efforts in collecting relevant data including the condition of the roads in that area, any past occurrence of health hazard due to such plying, number of accidents taken place in that area due to such overloaded trucks. No exercise was undertaken on those crucial aspects and the truck was seized merely due to the fact that it was presumed to be overloaded.
17 I would hasten to supplement that I may not be misunderstood as if I am condoning any act of driving of a vehicle in violation of provisions of Motor Vehicles Act or other statutory provisions but the present case is certainly not the one where there was any exigency or compelling requirement of passing order u/s 133 Cr.P.C.
18 There is one more aspect which I cannot resist commenting upon.
Revision Petition No. 73/2017 (Shree Shyam Associates Vs State) page 7 of 9 When the conditional order was passed on 29/03/2017, the owner of the truck was directed to appear before the Court of SDM on 05/04/2017. When I went through the record, I did not find any proceeding of 05/04/2017. It was expected that the learned SDM would have, at least, drawn some proceedings on 05/04/2017, even if, no such owner reported to him.
19 Sh. Anil Kumar Yadav, learned counsel for revisionist has contended that the concerned SDM has seized more than 80-90 trucks by invoking Section 133 of Cr.P.C. and is not giving any hearing to 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 on account of speculative and absurd reasons. According to him, 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, it was but expected that the concerned Executive Magistrate or SDM should have drawn some proceedings on the date fixed by him.
20 Be that as it may, the action on the part of SDM was uncalled for and hasty one as no ground-work was carried out by him. He should have also avoided passing a general and sweeping order. There is virtually nothing before me which may suggest causing of public nuisance in the strictest legal sense. I am, therefore, compelled to hold that conditional order was passed u/s 133 of Cr.P.C. for non-existing reasons.
21 According to revisionist, the construction material which the truck driver was transporting was from lawful and legitimate source and such record can always be shown to the concerned learned SDM/concerned SHO before obtaining possession of the truck.
22 Learned counsel for revisionist has also very fairly admitted before me that revisionist, before seeking release of the truck from the concerned PS, is Revision Petition No. 73/2017 (Shree Shyam Associates Vs State) page 8 of 9 even ready to deposit any applicable penalty levied/to be levied by the concerned Enforcement Agency or by concerned Authorized Officer for violation of provisions, if any, contained in Motor Vehicles Act, 1988 and Mines and Minerals (Development and Regulation) Act, 1957 and for causing violation, if any, with respect to the directions given by Hon'ble National Green Tribunal.
23 Since the trucks are lying seized for last approximately three weeks, it is expected that while levying any such penalty, the concerned competent authority would give due consideration to said aspect.
24 As an upshot of my foregoing discussion, I hereby allow the revision petition and set aside conditional order No. F.SDM/(Rohini)/2017/898-99 dated 29/03/2017. As a necessary corollary, the concerned SHO would immediately release the truck in question to its rightful owner subject to payment of penalty, if any, to concerned competent Agency/Authorized Agency and also on furnishing an undertaking to the effect that he would abide by said statutory provisions and directions of Hon'ble National Green Tribunal in future.
25 A copy of this order be sent to learned SDM, Rohini along with Trial Court record.
26 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
MANOJ by MANOJ JAIN
Date:
JAIN 2017.04.19
16:22:19 +0530
Revision Petition No. 73/2017 (Shree Shyam Associates Vs State) page 9 of 9