Delhi District Court
Sh. Naresh vs The State (Nct Of Delhi) on 7 April, 2010
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE (NW)-II: ROHINI COURTS: DELHI
Crl. Revision No. 326/2009
Sh. Naresh,
S/o Sh. Satpal,
R/o Village Karala,
Delhi.
......................... Revisionist
Versus
1. The State (NCT of Delhi)
2. Sh. Ajay Singh
3. Sh. Vijay Singh
4. Ganesh
All (2) to (4) are sons of Sh. Gyani Ram
R/o Village Karala, Delhi.
...................... Respondents
Date of institution : 01.07.2009
Date of Order : 07.04.2010
Dismissed
O R D E R:
This revision petition has been preferred against the order dated 21.5.2009 bearing no. SDM/RA/SV/2009/68 passed by SDM (Saraswati Vihar), Kanjhawla, Delhi in case No. 2162/2004 tiled as State Vs. Ajay Singh and Ors., whereby the Ld. SDM has closed / dropped the proceedings u/s 133 Cr.PC filed by the petitioner / complainant against the respondent Nos. 2 to 4.
The prayer of the revisionist is to set aside the impugned order and to decide the complaint u/s 133 Cr.PC on merits and to order for the removal of the septic tank from the site in question. Brief facts necessary for disposal of the revision petition are as under: Naresh Vs. The State (NCT of Delhi) & Ors. Page 1 of 6
The petitioner had filed a complaint regarding alleged septic tank of the petitioner in the public street consequent to which a kalandra u/s 133 Cr.PC was drawn by the police on 22.8.2004 and Ld. SDM after receipt of said kalandra issued notice to the petitioners u/s 133 Cr.PC. The petitioners submitted their joint reply on 18.1.2006 categorically stating that there existed no public right upon the portion of the land alleged in the complaint and it was also submitted that the complaint was malacious as the complainant was involved in a case u/s 308/323/34 IPC in FIR No. 266/04 on the complaint of the petitioners, and the present complaint u/s 133 Cr.PC is only a counter blast.
The concerned SDM passed an order dated 9.8.2007 directing the respondents to remove the septic tank which order was challenged in revision petition before the Ld. ASJ. Vide his order dated 12.01.2009 Sh. Sanjeev Aggarwal, ASJ, Rohini, set aside the said order of Ld. SDM and remanded the case back to SDM with the directions to pass a reasoned conditional order and thereafter proceed as per provisions of Section 137 to 138 Cr.PC. Thereafter, the SDM Saraswati Vihar, Kanjhawla held an inquiry u/s 137 Cr.PC and directed the Halqa Patwari to inspect the disputed property and report. The Halqa Patwari gave his detailed report dated 24.2.2009 on the basis of which the SDM dropped the proceedings u/s 133 Cr.PC and did not considered it necessary to issue any conditional notice u/s 133 Cr.PC and closed the case against which the revisionist has now approached this court.
Naresh Vs. The State (NCT of Delhi) & Ors. Page 2 of 6
It is pleaded by the revisionist that the order has been passed by the Ld. SDM without application of mind and without affording any opportunity to the complainant to produce the evidence and present his case. It is contended that the impugned order has been passed on the false report given by the Halqa Patwari dated 24.2.2009 stating that there was no public nuisance, whereas there existed a continuous nuisance for the petitioner as well as the other residents as the septic tank has been constructed on the public land / passage. It is pointed out that vide this impugned order the Ld. SDM has ignored and by-passed the earlier report of the Halqa Patwari dated 20.6.2007 alongwith the site plan showing that the septic tank was a public nuisance. It is further pleaded that the impugned order has been passed in a haste and is not passed strictly as per the provisions of Section 137 to 138 Cr.PC, which has not been done in the present case and the impugned order is violation of the orders of Sh. Sanjeev Aggarwal, ASJ.
The record of the SDM has been called which I have duly perused. Written synopsis of arguments are filed on behalf of the respondent. No written synopsis have been filed by the petitioner but Sh. Rajeev Hooda advocate appearing on behalf of the revisionist / petitioner has orally argued the case. He has vehemently argued that the Ld. ASJ has earlier remanded the case back to the SDM to consider the case on merits and passing a speaking order and once the present SDM has again passed an order without affording an opportunity to the petitioners to lead their evidence in support of their contentions, which was necessary there being two conflicting reports of Naresh Vs. The State (NCT of Delhi) & Ors. Page 3 of 6 the Patwari.
The provisions of Section 133 Cr.PC empower the District Magistrate or SDM or any other Executive Magistrate specially empowered in this behalf by the State Government to remove the unlawful obstruction, nuisance from any public place on receiving the report of a police officer or other information. The object of Section 133 Cr.PC is essentially to prevent public nuisance in case of an urgency where there is a danger of irreparable harms to the public in case if order is not passed. In the present case the main grievances of the revisionist is that Ld. SDM while directing for closure of the complaint did not afford an opportunity to him to lead his evidence.
I have gone through the record of the present case. After receiving the order from the Ld. ASJ, the Ld. SDM directed inquiry u/s 137 Cr. PC as the respondent had denied the allegations made by the complainant / revisionists. Therefore, in exercise of the powers provided in Sec. 151/39 Cr.PC, he directed the Halqa Patwari to carryout the inspection of the disputed portion of the property. It is evident that the Halqa Patwari thereafter visited the premises and gave his detailed report dated 24.2.2009 submitting that the passage in dispute ends at the house of the respondent and general public has nothing to do with the said passage. It was also reported that the width of the passage available on the spot is 15.3 feet and the septic tank is not on the public passage. The complainant had sufficient opportunity and had also questioned the said report. It is evident from the complaint of the complainant / revisionist that the septic tank had been constructed about 15 years ago. In the Kalandra given by the police it Naresh Vs. The State (NCT of Delhi) & Ors. Page 4 of 6 was reported that the septic tank existed from 15-20 years and the street come to end at the house of the respondent. Ld. SDM in my view has rightly opined that the complainant had never made any grievances with regard to the septic tank which was in existence for last 15-20 years and it appears that the grievances arose only when the height of the septic tank was increased by two to three feet as evident from the complaint of the complainant and the police report vide DD No. 26A. The proceeding sheet dated 21.5.2009 of the Ld. SDM also shows that the revisionist Naresh was present in person before the Ld. SDM and had made a submission before the SDM that the dispute between the parties had no concern with the public and he also submitted that the passage in question was being used only for septic tank. This being so, where then was a danger of irreparable harm and the urgency requiring the immediate intervention of the SDM u/s 133 Cr.PC. The said provision can only be invoked in case of grave urgency where an irreparable damage is being caused on account of nuisance. In a case where allegations are of existing and continuing circumstances which allegations are denied by the other party, a detail trial is required to be conducted and Section 133 Cr.PC cannot be invoked and the remedy for the complainant would lie before a Civil Court.
The septic tank had been in existence for the last 15-20 years as admitted by the revisionist / complainant himself. It is settled law that the concerned SDM is required to act on the basis of the report received from the police officials or other information. The provisions do not make it mandatory for the SDM to direct leading of Naresh Vs. The State (NCT of Delhi) & Ors. Page 5 of 6 evidence. The evidence can be taken by the SDM only in cases where he finds it necessary. The rights of the parties under these circumstances cannot be adjudicated upon in the proceedings u/s 133 Cr.PC. I find no merit in the revision petition which is hereby dismissed without prejudice to the rights of petitioner to approach regular Civil Court with regard to redressal of their grievances.
The record of Ld. SDM be sent back alongwith copy of this order. Revision file be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU) Dated: 07.04.2010 ASJ (NW)-II: ROHINI Naresh Vs. The State (NCT of Delhi) & Ors. Page 6 of 6 Crl. Revision No. 326/2009 Naresh Vs. State (NCT of Delhi) 7.4.2010. Present: Sh. Rajiv Hooda advocate for the revisionist. Sh. Vijay Singh respondent no. 3 in person.
Sh. S. K. Vashisth, Office Kanoongo, Office of SDM, Kanjhawla.
Heard arguments on the revision petition. Vide separate detailed order the revision petition is dismissed. The record of Ld. SDM be sent back alongwith copy of this order.
The revision file be consigned to Record Room.
(Dr. Kamini Lau) ASJ/NW-II, Rohini/7.4.10 Naresh Vs. The State (NCT of Delhi) & Ors. Page 7 of 6