Himachal Pradesh High Court
Sanjeev Kumar vs State Of H.P. & Anr on 31 July, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No. 471 of 2017
Decided on: 31.07.2018
Sanjeev Kumar ...petitioner
.
Versus
State of H.P. & Anr. ...Respondents
Coram
The Hon'ble Mr.Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes.
For the Petitioner: Ms. Komal Chaudhary, Advocate.
For the respondents: Mr. Vinod Thakur and Mr. Sudhir
Bhatngar, Addl. A.Gs., with Mr.
Bhupinder Thakur, Dy. A.G. for
respondent No. 1.
Mr. N. K. Thakur, Sr. Advocate, with
Mr. Divya Raj Singh, Advocate, for
respondent No. 2.
Tarlok Singh Chauhan, Judge (Oral)
This petition under Section 482 of the Criminal Procedure Code (for short 'Code') seeks quashing of the order dated 05.08.2017, passed by the learned Additional Sessions Judge, Mandi, whereby he affirmed the order passed by learned Sub Divisional Magistrate dated 09.10.2015 in proceedings under Section 133 of the Code.
2. Brief facts of the case are that respondent No. 2 made a complaint to the Sub Divisional Magistrate under Section 133 of the Code to remove obstruction on the path leading to his house.
The Magistrate, in turn, directed the Naib Tehsildar to investigate the matter and submit his report. Accordingly, Naib Tehsildar, after ::: Downloaded on - 02/08/2018 22:58:35 :::HCHP 2 visiting the spot, submitted his report wherein it had been mentioned that petitioner had not fenced the path leading to the house of the complainant and it was reported that fencing was laid .
down by the petitioner on both sides of the water channel (kuhal) stated to be on the malkiat land of the petitioner, for protection of crops from the animal and had specifically stated in the report that there was no obstacle to the general public qua the use of flow of water. Lastly, it was suggested that the demarcation of the land of both the complainant as well as the petitioner could only be the possible solution. r
3. Even though the report was submitted by the Naib Tehsildar on 19.08.2015, however, despite this the Magistrate proceeded to issue notice to the petitioner which reads thus:-
"In the Court of Sub Divisional Magistrate, Joginder Nagar, District Mandi (H.P.) Notice to:
Sanjeev Kumar s/o Durga Dass resident of Muhal Joginder Nagar, Tehsil Joginder Nagar, Distrtict Mandi (H.P.).
Whereas it has been made to appear to me that you have caused an obstruction to person by fencing the water channel (kuhal) which exists in Khasra No. 1849 in Muhal Joginder Nagar, Patwar circle Joginder Nagar and that such obstruction still exists.
I do hereby direct and require you within two days to remove the obstruction or to appear at 2:00 P.M. in the court of Sub Divisional Magistrate on 01st day of October, 2015 and to show cause why this order should not be enforced.
Given under my hand & seal of this court today on 29 th day of Sep. 2015.
Rahul Chauhan (HAS) Sub Divisional Magistrate Joginder Nagar, District Mandi (H.P.).::: Downloaded on - 02/08/2018 22:58:35 :::HCHP 3
4. One really wonders as to on what basis and what material, after receipt of the report of the Naib Tehsildar, the Magistrate choose to issue this notice, that too, by observing that .
the petitioner had obstructed the water channel (kuhal) by fencing it.
5. Obviously, therefore, the show cause notice itself was bad in law and to say the least was based on extraneous consideration.
6. Evidently, the learned Magistrate did not stop here and then proceeded to decide the complain so made by respondent No. 2 and vide its decision dated 09.10.2015 allowed the same and directed the petitioner to remove obstruction, failing which he would be liable to the penalty under Section 188 of the IPC. The apparent reason for passing this order is contained in para-4 of the impugned order, which reads thus:-
"4. I have gone through the record placed on the case file and given considerable thought to the arguments put before me by the Ld. Counsel. The perusal of the Missal Hakiyat Bandobast Jadid Mauja Joginder Nagar/396 shows that in khewat / khatauni No. 31/202, khasra No. 1849 where the water channel is located therein the ownership column shows the entry of Hargir, but possession column in Jamabandi shows "Muhaji Malkan". Similarly in Jamabandi pertaining to the year 2012-13 Mauza Joginder Nagar/396 in khasra/khatauni No. 71/110, khasra No. 1849 where the water channel is located the ownership column shows the entry of the respondent, but the possession column shows again the entry of "Muhaji Malkan".
The possession entry is that of the "muhaji Malkan" therefore, in my view there is no exclusive right of the owner, since the entry Mujai Malkan pertains to the rights of all the adjoining land owners. Hence, the fencing of the water channel is illegal ::: Downloaded on - 02/08/2018 22:58:35 :::HCHP 4 on the part of the respondent. Similarly, the perusal of the spot map attached with file shows that the land of the applicant is adjacent to that of the water channel or kuhal, therefore, only the demarcation of the water channel situated in khasra No. 1849 can make the picture clear. Also spot map shows there .
are two khasra Nos. 1831 & 1851 and both abruptly ends in khasra No. 1849. The classification of 1831 & 1851 khasra numbers which is in khasra numbers 1849 is being used as public path which is marked as (x) in the spot map which is Ex.-
1. Hence in my view the fencing of area around khasra numbers 1849 is affecting all the right holders."
7. Evidently, the aforesaid observations are clearly contrary to the report submitted by the Naib Tehsildar, who after visiting the spot had given his report as aforesaid.
8. It is rather unfortunate that even though the petitioner assailed the findings recorded by the Magistrate before the learned Additional Sessions Judge, Mandi, however, he too rejected the appeal mainly on the basis of reasons as contained in para 14 and 15 of the judgment which reads thus:-
"14. No doubt, as per the perusal of the file, the notice under Section 133 Cr.P.C. was given to the appellant and the Sub Divisional Magistrate has appointed Naib Tehsildar, Jogindernagar to verify the fact mentioned in the complaint and the Naib Tehsildar visited the spot submitted his report on 19.08.2015 and reported that appellant has not fenced the path leading to the house of complainant, but water kuhal has been fenced. Meaning thereby, the appellant has created obstruction in the kuhal. The various documents also placed on record alongwith the record. The perusal of missal haquit bandobast jadid Moja Joginderngar 396 shows khasra no. 1849 where the kuhal has been shown in the ownership column shows the entry of Hargij and in the possessory column, the possession was shown of the Mohaji Malkan and in the jamabandi pertaining to the year 2012-13 the alleged khasra ::: Downloaded on - 02/08/2018 22:58:35 :::HCHP 5 no. 1849 where the water kuhal was located was shown in the ownership of the present appellant. But in the possessory column again the entry of Mohaji Malkan. This clearly shows that inhabitants of the area have a right over the kuhal. Though in the ownership column the entry of the present .
appellant was shown and it has also come on the record that the appellant has fenced the kuhal. The fencing of the kuhal itself is illegal on the part of the appellant as the inhabitants of the area having a right in the kuhal and the complainant is also one of the beneficiary of the kuhal and there is also khasra no. 1831 and 1851 which pertaining to the gair mumkin path which ends in khasra no. 1849. Presently the area of khasra no. 1831 and 1851 which ends in khasra no. 1849 is being used a public path which was shown in the spot map Ex.P1.
15. The another aspects of the case are that appellant that no evidence was taken on record by the Sub Divisional Magistrate before coming to the conclusion. Admittedly, the evidence is taken by the Sub Divisional Magistrate, but it is settled law that if the position is clear from the document and there is no need for leading the oral evidence on behalf of the parties. In the instant case, the entire thing could be clarified from the document placed on record alongwith the report of the Naib Tehsildar and moreover, the kuhal belongs to Mohaji Malkan.
Meaning thereby that kuhal is being used by the public at large and the path comprised khasra no. 1831 and 1851 ends in the kuhal. Therefore, the impugned order passed by the court below suffers from no legal infirmity. Hence this point is answered in the negative. "
9. It is evident from the aforesaid that the learned Additional Sessions Judge did not apply his independent judicial mind and simply proceeded to ditto the findings recorded by the Magistrate. What is more surprising and rather more distressing is the fact that even though learned Additional Sessions Judge did make a mention of the report submitted by the Naib Tehsildar but ::: Downloaded on - 02/08/2018 22:58:35 :::HCHP 6 has not at all cared to discuss how the same was wrong or not based upon the factual situation at the spot.
10. Both the learned authorities below have failed to make .
a note of the fact that the object and purpose behind Section 133 of the Code is essential to prevent public nuisance and not private disputes.
11. The legal position with regard to applicability, object and purpose of Section 133 of the Code was lucidly considered by the Hon'ble Supreme Court in Kachrulal Bhagirath Agrawal and others vs. State of Maharashtra and others 2005 (9) SCC 36, wherein it was observed as under:-
"[10] A proceeding under Section 133 is of a summary nature. It appears as a part of Chapter X of the Code which relates to maintenance of public order and tranquility. The Chapter has been classified into four categories. Sections 129 to 132 come under the category of "unlawful assemblies". Sections 133 to 143 come under the category of "public nuisance". Section 144 comes under the category of "urgent cases of nuisance or apprehended danger" and the last category cover Sections 145 to 149 relating to "disputes as to immovable property". Nuisances are of two kinds, i.e. (i) Public; and (ii) Private. 'Public nuisance' or 'common nuisance' as defined in Section 268 of the Indian Penal Code, 1860 (in short the 'IPC') is an offence against the public either by doing a thing which tends to the annoyance of the whole community in general or by neglecting to do anything which the common good requires. It is an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity. 'Private nuisance' on the other hand, affects some individuals as distinguished from the public at large. The remedies are of two kinds - civil and criminal. The remedies under the civil law are of two kinds. One is under Section 91 of the Code of Civil Procedure, 1908 (in short 'CPC'). Under it a suit lies and the plaintiffs need ::: Downloaded on - 02/08/2018 22:58:35 :::HCHP 7 not prove that they have sustained any special damage. The second remedy is a suit by a private individual for a special damage suffered by him. There are three remedies under the criminal law. The first relates to the prosecution under Chapter XIV of IPC. The second provides for summary proceedings under .
Sections 133 to 144 of the Code, and the third relates to remedies under special or local laws. Sub-section (2) of Section 133 postulates that no order duly made by a Magistrate under this Section shall be called in question in any civil Court. The provisions of Chapter X of the Code should be so worked as not to become themselves a nuisance to the community at large. Although every person is bound to so use his property that it may not work legal damage or harm to his neighbour, yet on the other hand, no one has a right to interfere with the free and full enjoyment by such person of his property, except on clear and absolute proof that such use of it by him is producing such legal damage or harm. Therefore, a lawful and necessary trade ought not to be interfered with unless it is proved to be injurious to the health or physical comfort of the community. Proceedings under Section 133 are not intended to settle private disputes between different members of the public. They are in fact intended to protect the public as a whole against inconvenience. A comparison between the provisions of Sections 133 and 144 of the Code shows that while the former is more specific the latter is more general. Therefore, nuisance specially provided in the former section is taken out of the general provisions of the latter section. The proceedings under Section 133 are more in the nature of civil proceedings than of criminal nature. Section 133(1)
(b) relates to trade or occupation which is injurious to health or physical comfort. It deals with itself physical comfort to the community and not with those which are in themselves nuisance but in the course of which public nuisance is committed. In order to bring a trade or occupation within the operation of this Section, it must be shown that the interference with public comfort was considerable and a large section of the public was affected injuriously. The word 'community' in Clause (b) of Section 133 (1) cannot be taken to mean residents of a particular house. It means something wider, that is, the public at large or the residents of an entire locality. The very fact that the provision occurs in a Chapter ::: Downloaded on - 02/08/2018 22:58:35 :::HCHP 8 with "Public Nuisance" is indicative of this aspect. It would, however, depend on the facts situation of each case and it would be hazardous to lay down any strait-jacket formula.
[11] The guns of Section 133 go into action wherever there is .
public nuisance. The public power of the Magistrate under the Code is a public duty to the members of the public who are victims of the nuisance, and so he shall exercise it when the jurisdictional facts are present. "All power is a trust -that we are accountable for its exercise - that, from the people, and for the people, all springs and all must exist". The conduct of the trade must be injurious in praesenti to the health or physical comfort of the community. There must, at any rate, be an imminent danger to the health or the physical comfort of the community in the locality in which the trade or occupation is conducted. Unless there is such imminent danger to the health or physical comfort of that community or the conduct of the trade and occupation is in fact injurious to the health or the physical comfort of that community, an order under Section 133 cannot be passed. A conjoint reading of Sections 133 and 138 of the Code discloses that it is the function of the Magistrate to conduct an enquiry and to decide as to whether there was reliable evidence or not to come to the conclusion to act under Section 133.
[12] Section 133 of the Code as noted above appears in Chapter X of the Code which deals with maintenance of public order and tranquillity. It is a part of the heading "Public nuisance". The term "nuisance" as used in law is not a term capable of exact definition and it has been pointed out in Halsbury's Law of England that:
"Even in the present day there is not entire agreement as to whether certain acts or omissions shall be classed as nuisances or whether they do not rather fall under other divisions of the law of tort".
[13] In Vasant Manga Nikumba v. Baburao Bhikanna Naidu (1995 Supp (4) SCC 54) it was observed that nuisance is an inconvenience which materially interferes with the ordinary physical comfort of human existence. It is not capable of precise definition. To bring in application of Section 133 of the Code, there must be imminent danger to the property and ::: Downloaded on - 02/08/2018 22:58:35 :::HCHP 9 consequential nuisance to the public. The nuisance is the concomitant act resulting in danger to the life or property due to likely collapse etc. The object and purpose behind Section 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 danger would be done to the public. It applies to a condition of the nuisance at the time when the order is passed and it is not intended to apply to future likelihood or what may happen at some later point of time. It does not deal with all potential nuisances and on the other hand applies when the nuisance is in existence. It has to be noted that sometimes there is confusion between Section 133 and Section 144 of the Code. While the latter is a more general provision the former is more specific. While the order under the former is conditional, the order under the latter is absolute."
12. Bearing in mind the aforesaid exposition of law, it would be noticed that complaint lodged by respondent No. 2 contained allegations which were far to general and bereft of any details and, in fact, spelt out an individual dispute rather than there being a public nuisance. This is clearly evident from the bare perusal of the complaint, which is extracted in detail herein under and reads thus:
"With humble request it is submitted that I have constructed a home at Joginder Nagar near Patwar Ghar, Joginder Nagar in year 1999. From Patwar ghar there the path leads to my home just crossing a water channel. One of the miscreants who is my neighbour named Sanjiv Kumar has created an obstruction to the path leads to my home by fenced a barbed wire just in front of my home gate. It is really very very difficult for me to enter to my home and also very difficult to other people to walk easily. He has created this obstruction un-necessary, who has no right to create such obstruction on some bodies way (path) that too leads to some ones home moreover even he has no right to fenced the path across the water channel. As the water channels are meant ::: Downloaded on - 02/08/2018 22:58:35 :::HCHP 10 for all people. Even the rights of villagers mentioned in VAJIBULARJ cannot be denied to anybody."
13. Having said so, obviously, orders passed by both the .
courts/authorities below cannot be sustained and accordingly set aside. However, the complainant i.e. respondent No. 2 is permitted to supplement his complaint and also annex therewith additional documents in order to substantiate his complaint.
14. Needless to say, in case the complainant chooses to do so, the petitioner shall have a corresponding right to not only file reply but also place on record any additional material which he may choose.
15. The petition is disposed of in the aforesaid terms.
Parties to appear before the Sub Divisional Magistrate, Jogidner Nagar, District Mandi, H.P., on 20.08.2018.
(Tarlok Singh Chauhan), Judge.
July 31, 2018 sanjeev ::: Downloaded on - 02/08/2018 22:58:35 :::HCHP