Jammu & Kashmir High Court
Girdhari Lal And Ors. vs State Of J&K; on 3 November, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRR No.9900003/2012, IA No.99001/2012
Date of order: 03.11.2018
Girdhari Lal and ors. Vs State of J&K
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mr. P. S. Pawar, Advocate.
For respondent (s):
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. The petitioners have filed the instant revision petition under Section 435 read with Section 439 Cr.P.C. against order No.587-93/DMJ/10 dated 16.08.2010 passed by the respondent in terms of Section 133 Cr.P.C.
2. The petitioners claim to be the owners-in-possession of the land bearing khasra Nos.122, 123 and 124 measuring 05 kanals in total, situated at village Chak Jallo, Tehsil and District Jammu. It is stated that petitioners No. 1 and 2 by virtue of sale deed dated 02.09.1983, which was registered on the same date, have purchased land bearing khasra No.122 measuring 01 kanal and 07 marlas, and khasra No. 123 measuring 01 kanal and 13 marlas situated at village Jallo Chak, Tehsil and District Jammu; whereas petitioners No.2 and 3 have purchased lard bearing khasra No.124 measuring 2 kanals situated at village Chak Jallo, Tehsil and District Jammu by virtue of sale deed dated 09.04.1985. The said land purchased by the petitioners is Banjar CRR No.9900003/2012 Page 1 of 9 Kadim as is reflected in the revenue record. In pursuance of the aforesaid sale deeds, the mutations in favour of the petitioners have also been attested with respect to the aforesaid land. It is further stated that ever since the date of purchase till today, the petitioners are in possession of the aforesaid land. On 12.09.2009 when the petitioners started fencing the aforesaid land by raising boundary wall over it, the army stationed at Kalu Chak along with Assistant Commissioner (R), Jammu; Tehsildar, Jammu and the respondent herein started interference into the peaceful construction work of the petitioners. Being aggrieved against the said illegal interference, the petitioners herein alongwith others filed a civil suit in the court of learned Sub- Judge (CJM), Jammu, wherein the above authorities too appeared and the Sub-Judge (CJM), Jammu. Since they had no reason or ground to justify their illegal interference, learned Sub Judge (CJM), Jammu vide order dated 24.10.2019 directed them not to cause interference to the extent of raising of fencing/boundary wall covering the suit land of the petitioners. It is further stated that before passing of order dated 24.10.2010, the learned Sub-Judge (CMJ) Jammu, conducted verification with respect to the land in question and also the status of petitioners vis-à-vis the land involved.
3. Learned counsel for the petitioners states that in compliance to the directions passed by the learned Sub Judge (CIM), Jammu, on the file, the Tehsildar Settlement had filed a detailed report along with relevant record in the said case titled "Jagdish Raj vs. Union of India and others"
in the court of learned Sub Judge (CJM), Jammu. It is stated that after drawing its satisfaction, the learned Sub Judge (CJM), Jammu with respect to the land in question and the status of the petitioners, passed the restraint order against the Deputy Commissioner, Jammu, Assistant Commissioner as well as Tehsildar Jammu to the extent that they will CRR No.9900003/2012 Page 2 of 9 not interfere into the construction work of the petitioners for raising boundary wall over the land in question. It is further stated that the petitioners in pursuance of the above said order started raising boundary wall over the aforesaid land besides some other khasra numbers in the suit, which too, was permitted by the learned Sub-Judge (CJM) Jammu.
4. Learned counsel for the petitioners states that despite the direction passed by the Court of learned Sub-Judge (CJM), Jammu the respondents forcibly and illegally dismantled the boundary wall raised by the petitioners and thereby causing huge loss to them. It is stated that against the said action of the respondent, the petitioners have also filed a contempt petition against the then Deputy Commissioner, Jammu. It is stated that against the illegal act on the part of the respondent, petitioners approached the Divisional Commissioner, Jammu, by way of an application dated 27.05.2011 and the Divisional Commissioner, Jammu, in turn, sent that application to the respondent herein for its examination and necessary action under rules. After passing of the considerable time when nothing substantive was done on the part of the revenue officials, the petitioners again approached the Divisional Commissioner, Jammu, to ascertain the fate of their aforesaid application, the petitioners were told that with respect to the land in question two orders were passed one under Section 144 Cr.P.C. and another under Section 133 Cr.P.C. by the respondent herein. This is for the first time that the petitioners came to know regarding the passing of the aforesaid orders by the respondent herein. It is further stated that although there is no date mentioned in the order passed by respondent herein under section 144 Cr.P.C. but as it depicts from the endorsement at the bottom of the order, which reflects its date as 20.11.2009 and the validity of such order is only two months and since it does not seem to be extended by the Government, it ceases its CRR No.9900003/2012 Page 3 of 9 existence. So far as respondent who was a party before the civil court himself took the law in his hands and passed the order impugned in order to defeat the civil rights of the petitioners. The order impugned is, therefore, bad and illegal and, as such, requires to be quashed
5. In the instant petition, petitioners challenge the order impugned dated 10.08.2010 passed under Section 133 Cr.P.C., on various grounds:-
a) That the order impugned is bad in the eyes of law as Chapter X of the Code of Criminal Procedure deals with public nuisances and contains a procedure for speedy removal of the obstruction or the nuisance itself, which is injurious to the public.
b) That under Section 133 Cr.P.C. before taking any action the Magistrate must satisfy that, it is a public nuisance; it is not a dispute which is subject matter being adjudicated in a civil court; it is a case of emergency or there is an imminent danger to public interest but in the present case the respondent by floating all the aforesaid precautions into winds passed the Impugned order, which in itself under the provision is a conditional order; not only this, under the garb of said general order, Impugned herein, not only the petitioners have been deprived of their right over the property but also even attempt has been made by the respondent who himself is a party before the Sub-Judge (CJM), Jammu, to scuttle the proceedings in a civil suit.
c) That the proper procedure as provided under Chapter Х of the Cr.P.C ís that on the appearance of the person against whom conditional order has been passed, the Magistrate before enquiry ask him whether he denies the existence of any public right, if he denies, it is for him to adduce evidence in support of it and finding is to be recorded whether reliable evidence has been produced or not. If there is no denial, or if there is no reliable evidence in support of denial, the Magistrate proceeds to make enquiry and the prosecution is to lead evidence and in case if the existence of public right is denied by the person, and if the Magistrate is provided with some reliable evidence regarding such denial, then his jurisdiction is ousted and the only course which is available with the Magistrate is to stay the proceedings before him and refer the parties to the civil case. But here is a case where the parties who were already before the civil court with respect to the same dispute and the civil court after thorough verification and enquiry had allowed the petitioners to raise the construction but one of the party before the civil court i.e. the respondent herein, instead of took another course to defeat the right of the petitioners by passing the impugned order totally in violation and disregard to the provisions of contemplated under Chapter X of the Cr.P.C.
d) That the order under Section 133 Cr.P.C. can be passed only where unlawful construction or nuisance with respect to way, water or channel which is or may be lawfully issued by the public or of any public place is caused and for its removal the said order under Section 133 Cr.P.C. can CRR No.9900003/2012 Page 4 of 9 be passed. But here is the case where the aforesaid land of the petitioners is neither a public place nor any way, river or channel, as it does not belong to the State comprising ground and grounds left for sanitary or re-
creative purpose.
6. Section 133 of the Code of Criminal Procedure, reads as under:-
"133. 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 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 CRR No.9900003/2012 Page 5 of 9 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."
7. From bare perusal of this section, it is expected that the Magistrate should record the evidence under Section 133 of Cr.P.C. before making the order absolute, he must afford an opportunity to the persons concerned who are likely to be aggrieved. The proceedings under Section 133 of Cr.P.C. are more or less summary and it cannot be kept in pending for a long time. Power of Magistrate can be invoked under Section 133 (1) Cr.P.C. on receiving the report of the Police Officer or other information and on taking such evidence if any, as he thinks fit; the Magistrate is empowered to take action in this behalf for either removal or regularizing a public nuisance. The action that was initiated on the basis of a Police Report and the complaint received, could be the basis for taking action under Section 133 Cr.P.C; merely because only one complainant has come forward to complain about the nuisance, the nuisance cannot be construed that there was no public nuisance, as contemplated under Section 133 Cr.P.C. The power under Section 133 Cr.P.C. is vested with the Executive Magistrate, in order to protect the people from the tyranny of the public nuisance, by way of removing the nuisance. The object and purpose of Section 133 of Code of Criminal Procedure, is to prevent public nuisance. It involves a sense of urgency. Action under the section is permissible when the nuisance is in existence. A complete procedure has been provided in this regard in chapter X of Cr.P.C; In terms of section 134, the order has to be served on the person against whom it is made; in terms of section 135, the person against whom CRR No.9900003/2012 Page 6 of 9 order is made has to obey it; in terms of section 137 if person appears, then magistrate shall take evidence and after hearing parties may order be withdrawn or may order that order shall be made absolute. Magistrate has also power to make some conditional order.
8. Order impugned dated 10.08.2010 reads as under:-
"Office of the District Magistrate, Jammu Order Whereas, it has been observed that large scale unwanted illegal construction are being carried out along the Ballol Nallah which is causing grave risk to the life and public property;
Whereas, Commander Armed Brigade, Ratnu Chak has also communicated that there are very sensitive Military Installations nearby. He has further stressed that the encroachment activities along Ballol Nallah are going on unabated. This has causes security problem in the area which needs to be stopped/removed immediately;
Whereas, it is known that large quantity of rain water is being carried out by the Ballol Nallah. It has a large catchment area including villages KaluChak, RattnuChak, Jallow Chak, Birpur. The population of these villages are also complaining regarding encroachments which has threatened their normal life;
Whereas, it is seen that some structures including a big compound wall in the middle of Nallah upstream Kalluchak Bridge, had come up. They are being further extended. This may cause blockade of the Nallah which will ultimately sweep at adjoining area and there shall be danger of loss of life and public property;
Whereas, during the recent rains, floods have caused great damage to the public property and endangered human life. These activities cannot be allowed to be carried out further being not in public interest and causing a lot of hardship to the public at large. It has become necessary that corrective measures requires to be taken immediately;
Therefore, I, M. K. Dwivedi, IAS, District Magistrate, Jammu invoke the provisions of Section 133 Cr.P.C. and order that all the unauthorized illegal constructions on the Ballol Nallah falling in Jammu District be immediately removed by the Tehsildar (Settlement), Jammu and Naib Tehsildar, Bahu and Digiana. If need arises they shall take the help of Police. Moreover no further construction activities along the bank of Ballol Nallah falling in Jammu District be carried out. The concerned Tehsildar and SHOs of the area are further directed to maintain strict vigil around the clock in the areas. They shall immediately take action against trespassers and inform to District Magistrate Jammu immediately. Further more CRR No.9900003/2012 Page 7 of 9 Revenue Field staff is directed not to issue copies of fard intkhals for sale/purchase of lands which is recorded as Ballol in the revenue record.
District Magistrate Jammu"
9. From bare perusal of order impugned passed by District Magistrate on 10.8.2010, it is evident that he has passed the impugned order on communication addressed by Commander Armed Brigade, Ratnu Chak, that there is encroachment activities along Ballol Nallah, which can cause security problems in area as there is sensitive installation. It has further been narrated that large quantity of rain water is being carried out by Ballol Nallah, and population of area is also complaining regarding encroachment. It has further been stated that big compound wall in the middle of nallah upstream Kalluchak Bridge, which may cause danger to area and blockade to the nallah, and in recent rains, floods have caused great damages to the public property. Accordingly he has ordered for removal of all unauthorized illegal construction on the Ballol Nallah.
10. From bare perusal of this order, it appears that except bald averments of encroachment in Ballol Nallah, there is no substantial evidence with regard to satisfaction of Magistrate in passing the order; no khasra number of land and other identification of land has been mentioned. From perusal of various sale deeds dated 2.9.1983 and 9.4.1985, it is evident that petitioners have purchased land measuring 5 kanals under khasra nos. 122, 123 and 124 situate at village Chak Jallo, Tehsil and District, Jammu. Mutation of land has been attested in favour of petitioners. Civil litigation between UOI and petitioners are pending with regard to same land in a suit filed by petitioners; on 26.11.2009, CJM (Sub Judge ) directed the Tehsildar Settlement for demarcation of land ; Tehsildar accordingly filed report on 26.11.2009; After perusing report on 24.10.2010, CJM (sub Judge) has restrained the UOI, Deputy CRR No.9900003/2012 Page 8 of 9 Commissioner, ACR and Tehsildar from interfering into construction work of raising of boundary wall by the petitioners over the land. Now instead of filing written statements before civil court, the District Magistrate, who is also a party in civil suit at the behest of Army (UOI) has passed the impugned order.
11. In this way, order impugned is full of mala fide. No date has been fixed for appearance of aggrieved party/ies to file objections. The procedural compliance of chapter X of Cr.P.C. has totally been bypassed by District Magistrate. Here also, no reply or objections has been filed. I am of considered view that District Magistrate has passed the order on the saying of Commander Armed Brigade Ratnu Chak, without knowing the procedure for passing such order.
12. In M/s. Shiraz Cinema vs. Srinagar Municipal Corporation, reported in Crimes (HC) 2 (1988) 250, the Jammu and Kashmir High Court has held that Section 133 Cr.P.C., provides for the removal of public nuisance. The purpose and object of Section 133 Cr.P.C. is not intended to settle private disputes between two members of the public but is intended to protect the public as a whole against the inconvenience of public nuisance. No doubt that the provisions of Section 133 Cr.P.C., cannot be used for settlement of disputes between private parties.
13. In view of above, this petition is allowed; order impugned is set aside.
However, respondent may pass order after hearing the petitioners or any other aggrieved person/s.
(Sanjay Kumar Gupta) Judge Jammu 03.11.2018 Bir CRR No.9900003/2012 Page 9 of 9