Rajasthan High Court - Jaipur
Smt. Sudhanarayan vs Prem Phutela on 20 March, 2002
Equivalent citations: RLW2003(2)RAJ1328, 2002(4)WLC555, 2002(5)WLN681
JUDGMENT Garg, J.
1. This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner-Smt. Sudhanarayaw (hereinafter referred to as the parly No. 2) against me respondent-Prem Phuleia (hereinafter referred to as the party No. 1) challenging Additional Sessions Judge No. 1, Sri Ganganagar in Criminal Revision No. 53/2000 whereby he dismissed the revision petition of the party No. 2 and upheld the order dated 23.3.2000 passed by the learned Additional District Magistrate (City), Sri Ganganagar in Case No. 736/99 pertaining to the proceedings under Section 133 Cr.P.C., by which the learned Additional District Magistrate (City) ordered that the house in question be demolished.
2. It arises in the following circumstances:-
The party No. 1 Prem Phultela filed an application dated 5.8.1999 before the learned Collector, Sri Ganganagar purporting to be under Section 133 Cr.P.C. stating inter-alia that there is a Nohra No. 33 situated in Purani Dhan Mandi, Sadar Bazar, Sri Ganganagar having area of 42x67 foot and that Nohra has three storeys, but that Nohra was in a dilapidated condition and that Nohra was not fit for living human beings and the report of the Municipal Council, Sri Ganganagar showing that the said Nohra was not fit for living was also submitted by the party No. 1 alongwith the said application. It was further stated in that application that since lot of people used to pass through the Sadar market, therefore, that Nohra should be demolished otherwise it might cause damage to life and property of anybody.
On that application, the learned Collector, Sri Ganganagar vide order dated 10.8.1999 directed the Additional District Magistrate (City), Sri Ganganagar to register the case under the provisions of Code of Criminal Procedure and proceed further in the matter.
Thereafter, on 25.9.1999, the learned Addl. District Magistrate (City), Sri Ganganagar registered the criminal case under Section 133 Cr.P.C. and passed a preliminary order and thereafter, notices under Section 133(1) Cr.P.C. were issued to those persons, who were living in that Nohra (house) and they were asked to appear on 1.10.1999.
In compliance of that notice, the party No. 1 filed his reply on 1.10.1999 and narrated all the contents which were earlier narrated by him in the application dated 5.8.1999 made by him to the learned Collector, Sri Ganganagar. It was further alleged by the party No. 1 in the reply that since the house in question was in a dilapidated condition, therefore, it is might fall on any day, therefore, it should be regarded as "public nuisance".
The party No. 2 (petitioner in the present petition under Section 482 Cr.P.C.) filed her reply on 23.10.1999 stating inter-alia that the application under the provision of Section 133 Cr.P.C. was not maintainable as the house in question was in a very good condition and it was further alleged that the report of the Municipal Council, Sri Ganganagar, on which reliance was placed by the party No. 1, had no evidentiary value and that report was an old one and similarly, the report of the PWD had no bearing and it was given without jurisdiction. It was further averred in the reply that the intention of the party No. 1 was only to evict the party No. 2 from the house in question and for that, parly No. 1 removed the patties beneath the roof. It was further averred in the reply that earlier to the present proceedings, the proceedings under Section 133 Cr.P.C. were initiated and in that proceedings, the learned Addl. District Magistrate (City), Sri Ganganagar through order dated 17.12.1998 directed the party No. 1 to repair the house in question. Against the said order dated 17.12.1998 passed by the learned Addl. District Magistrate (City), Sri Ganganagar, the party No. 1 preferred a revision petition being No. 5/99 and the learned Addl. Sessions Judge No. 1, Sri Ganganagar allowed that revision petition and set aside the order dated 17.12.1998 passed by the learned Addl. District Magistrate (City), Sri Ganganagar holding inter-alia that the dispute between he parties was not covered by the word "public nuisance" and thus, the case does not fall under Section 133 Cr.P.C. In these circumstances, it was further averred that the initiation of fresh proceedings under Section 133 Cr.P.C. are without jurisdiction and not maintainable. It was further averred in the reply that since many matters pertaining to ownership and title of the house in question between both the parties are pending in the civil and other courts, therefore, from this point of view also, the present proceedings under Section 133 Cr.P.C. are not maintainable.
Therefore, from the order-sheet dated 10.11.1999, it appears that the party No. 1 did not lead any evidence at that stage and, thereafter, six witnesses produced on behalf of they party No. 2 were examined and in rebuttal, six witnesses were produced by the party No. I before the learned Addl. District Magistrate (City), Sri Ganganagar.
The learned Addl. District Magistrate (City), Sri Ganganagar through order dated 23.3.2000, on the basis of the report of the Municipal Council and the report of the SHO concerned and on the basis of site inspection and after analysing the oral evidence on record, came to the conclusion that the house in question was in a dilapidated condition and that the house in question was not repairable one and since it might fall on any day, therefore, the case was covered by the word "public nuisance" and thus, it should be demolished.
Aggrieved from the said order dated 23.3.2000 passed by the learned Addl. District Magistrate (City), Sri Ganganagar, the party No. 2 preferred a revision petition before the learned Sessions Judge, Sri Ganganagar, which was latter on transferred to the learned Addl. Sessions Judge No. 1, Sri Ganganagar and the learned Addl. Sessions Judge No. 1, Sri Ganganagar through judgment dated 8.5.2000 dismissed that revision petition of the party No. 2 at the admission stage and confirmed the order dated 23.3.2000 passed by the learned Addl. District Magistrate (City), Sri Ganganagar.
Aggrieved from the said judgment dated 8.5.2000 passed by the learned Addl. Sessions Judge No. 1, Sri Ganganagar, this criminal misc. petition under Section 482 Cr.P.C. has been filed by the party No. 2 against the party No. 1.
3. In this petition, the following submissions have been raised by the learned counsel appearing for the party No. 2:-
(1) That since the proceedings under Section 133 Cr.P.C. were earlier initiated between the parties and through order dated 17.12.1998, the learned Addl. District Magistrate (City), Sri Ganganagar came to the conclusion that the house in question was repairable and thus, party No. 1 was directed to get the house in question repaired and against the said order of the learned Addl. District Magistrate (City) dated 17.12.1998, the party No. 1, preferred a revision petition being No. Section 5/99 before the learned Addl. Sessions Judge No. 1, Sri Ganganagar, who vide judgment dated 4.3.1999 allowed that revision petition of the party No. 1 and set aside the order of the learned Addl. District Magistrate (City) holding inter-alia that the dispute between the parties was not covered by the word "public nuisance" and on the contrary, it was a private nuisance and therefore, in these circumstances, on the same facts, initiation of the fresh proceedings under Section 133 Cr.P.C. are without jurisdiction and not maintainable.
(2) That whatever dispute is between the parties, it is a family dispute and it has no bearing with the public nuisance and, therefore, the whole proceedings initiated under Section 133 Cr.P.C. are irrelevant and illegal and the same are liable to be set aside.
Furthermore, it is an admitted position that civil matters are pending between the parties in the civil courts with regard to ownership and title over the house in question, therefore, whatever dispute is between the parties, it is a civil dispute and thus, the present proceedings under Section 133 Cr.P.C. are not maintainable.
(3) That once the proceedings have been started under Section 133 Cr.P.C. and as per Section 138 Cr.P.C. the trial would commence as per the provisions of summons case and, therefore, since party No. 1 did not lead any evidence in the beginning, therefore, in these circumstances, the whole trial is Without jurisdiction and subsequent adducing of evidence by the party No. 1 had no bearing and from this point of view also, the whole proceedings under Section 133 Cr.P.C. are illegal and without jurisdiction and the same are liable to be set aside.
4. On the other hand, the learned counsel appearing for the party No. 1 supported the impugned judgment dated 8.5.2000 passed by the learned Addl. Sessions Judge No. 1, Sri Ganganagar.
5. I have heard the learned counsel appearing for the party No. 2 and the learned counsel appearing for the party No. 1 and perused the records of the case.
6. Before proceedings further, some material facts, which are on record, may be narrated here:-
(1) That earlier to the present proceedings under Section 133 Cr.P.C., a report was lodged by the party No. 1 against the party No. 2 in the Police Station Kotwali Sri Ganganagar and on the basis of that report, a complaint under Section 133 Cr.P.C. was filed by the SHO, Police Station Kotwali, Sri Ganganagar on 23.7.1997 in the Court of Addl. District Magistrate (City), Sri Ganganagar and in that proceedings, the learned Addl. District Magistrate (City), Sri Ganganagar through order dated 17.12.1998 came to the conclusion that In respect of possession of the house in question, there was dispute between the party No. 1 and party No. 2 and since the house in question was in a dilapidated condition, therefore, it should be repaired and thus, he directed the party No. 1 to make repair of the house in question.
(2) That aggrieved from the order dated 17.12.1998 passed by the learned Addl. District Magistrate (City), Sri Ganganagar, the party No. 1 preferred a revision petition being No. 5/1999 and the learned Addl. Sessions Judge No. 1, Sri Ganganagar through judgment dated 4.3.1999 allowed the said revision petition and set aside the order of the learned Addl. District Magistrate (City), Sri Ganganagar holding inter-alia that the dispute between the parties was not covered by the word "public nuisance"- and, therefore, any order passed under Section 133 Cr.P.C. is illegal.Point No. 1
7. From the order dated 17.12.1998 passed by the learned Addl. District Magistrate (City), Sri Ganganagar and the judgment dated 4.3.1999 passed by the learned Addl. Sessions Judge No. 1, Sri Ganganagar in the revision petition field by the party No. 1, it clearly appears that between the parties, proceedings under Section 133 Cr.P.C. had already taken place and through order dated 17.12.1998 the learned ADM directed the party No. 1 to make repair of the house in question and that order was set aside in revision by the learned Addl. Sessions Judge No. 1 through judgment dated 4.3.1999 and in that judgment, it was specifically held by the learned Addl. Sessions Judge No. 1 that the dispute between the parties was not covered by public nuisance and on the contrary, it was a private nuisance.
8. In my considered opinion, the Magistrate has no jurisdiction to re-open the matter on a fresh application in respect of the same matter to draw up fresh proceedings under Section 133 Cr.P.C. because of the simple reason that once it was held earlier that dispute between the parties in respect of the house in question, was not covered by the word "public nuisance", initiation of second proceedings is nothing but abuse of the process of the court and should not be allowed to continue and, therefore, the whole proceedings conducted afresh under Section 133 Cr.P.C. are without jurisdiction and the same are liable to be set aside in exercise of the power under Section 482 Cr.P.C. to prevent abuse of the process of the Court.
9. Thus, the point No. 1 is decided in favour of the party No. 2, Point No. 2
10. No doubt the learned Addl. Sessions Judge No. 1, Sri Ganganagar in the judgment dated 4.3.1999 passed in revision filed by the party No. 1 has clearly come to the conclusion that no case for public nuisance was made out, still something should be said on this aspect.
11. Section 133 Cr.P.C. is proceeded by the word "public nuisance". Therefore, to make out a case for initiation of proceedings under Section 133 Cr.P.C. a public nuisance has to be established.
12. The term "public nuisance" has not been defined in the Criminal Procedure Code rather it is defined by the Indian Penal Code under Section 268, A person is guilty of a public nuisance who does any act or is guilty of an illegal 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, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion t use any public right. A common nuisance in not excused on the ground that it causes, some convenience or advantage.
13. "Public Nuisance" shall mean a public nuisance as defined under Section 268 of IPC. "Public Nuisance" is an offence against the public as it affects the public at large, or some considerable portion of them.
14. It may be clarified here that Section 133 Cr.P.C. does not apply to private nuisance and dispute. The proceedings under Section 133 cr.P.C. are not intended to settle private dispute or disputes between different members of public.
15. The provisions of Chapter-X (133 Cr.P.C.) apply only when the obstruction or nuisance is on public way, river, channel or on any public place. An obstruction or nuisance on a private property cannot be interfered with.
16. Keeping the above principles in mind, when there is a dispute between the parties over the ownership an possession of the house in question and the civil suit is also pending in the Civil Court, therefore, the dispute that the house in question was in a dilapidated condition may be regarded as a private dispute between the parties and it cannot be covered by the word "public nuisance". It appears that the learned Addl. Sessions Judge No. 1, Sri ganganagar in his judgment dated 4.3.1999 has clearly observed that the dispute between the parties was a private nuisance and not public nuisance. However, it is surprising that once it was held by the learned Addl. Sessions Judge No. 1, Sri Ganganagar in his judgment dated 4.3.1999 that there was no public nuisance, but in another judgment dated 8.5.2000, he summarily dismissed the revision petition of the party No. 2 at admission stage without discussing that aspect. From this point of view also, the impugned judgment dated 8.5,2000 passed by the learned Addl. Sessions Judge No. 1, Sri Ganganagar and order dated 23.3.2000 passed by the learned Addl. District Magistrate (City), Sri Ganganagar cannot be sustained and the same are liable to be set aside.
17. It is made clear that proceedings under Section 133 Cr.P.C. are independent of Civil proceedings. It need be dropped simply because civil suit could have been filed for the same relief or because a civil suit has been filed.
18. However, in the present case, as stated above, the position is otherwise in the manner that the so-called dispute is a private dispute and cannot be termed a public nuisance and, therefore, from this point of view also, the proceedings under Section 133 Cr.P.C. are without jurisdiction and the same are liable to be set aside.
19. Thus, the point No. 2 is also decided in favour of the party No. 2. Point No.3
20. For taking action for the removal of the unlawful construction or nuisance under Section 133 and other relevant sections of the Code of Criminal Procedure, the District Magistrate or the Sub Divisional Magistrate is required to follow the prescribed procedure. In case the District Magistrate or a Sub Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government receives the report of a police officer or is given information in any other manner that any unlawful obstruction or nuisance should be removed from any public place or from any other way, river or channel which is or may be used by the public, such Magistrate has to make a conditional order requiring the person causing such obstruction or nuisance to remove the obstruction or nuisance. In case such person objects he should be directed to appear before such Magistrate or some other Executive Magistrate subordinate to him at the time and place to be fixed by the order and to show cause as to why the order should not be made absolute. This is the specific mandatory provision required to be followed by Sub Divisional Magistrate intending to pass an order to remove the obstruction. The Sub Divisional Magistrate has thereafter to follow the procedure prescribed under the provisions of Section 134, 135 and 141, as the case may be. The order is required to be served to such person in the manner provided for the service of summons. The person against whom such order is made has to perform, within the lime and in the manner prescribed in the order, the act directed by such order or to appear in accordance with such order to show cause against the same. If the person against whom the order under Section 133 is made appears and show cause against the order, the Magistrate has to take the evidence in the matter as in the summons case and in case the Magistrate is satisfied that the order is reasonable and proper, he may make the order absolute without modification or with such modification as may be necessary. As provided in Section 138 of the Code of Criminal Procedure, in case the Magistrate is not satisfied, no further proceeding should be taken in the case. If required that the Magistrate may direct local investigation as provided in Section 139 and also may issue written instructions. In case the order is made absolute under Section 136 and 138, the Magistrate should give notice of the same to the person against whom the order is made and he is also empowered to further require such person to perform the act as directed by the order within a time to be fixed in the notice and inform such person that, in case of disobedience, he will be liable to the penalty provided by Section 188 of the Indian Penal Code. Under Sub-section (2) of Section 141 such Magistrate has power to cause such act to be performed.
21. From Section 138 Cr.P.C., it is also clear that if the person against whom an order under Section 133 is made, appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons-case.
22. The trial of summons case by Magistrate is provided in chapter XX Cr.P.C. running form Section 251 to 259.
23. In the present case, there is no dispute on the point that after initiation of proceedings Under Section 133 Cr.P.C. and after reply to show cause notices under Section 133(1) Cr.P.C. by party No. 1, and party No. 2, no evidence was led in first instance by the party No. 1, as is evident from the order-sheet dated 10.11.1999, though as per the provisions of summons cases, party aggrieved must lead his evidence in the first instance.
24 Now the question is what would the effect of not producing evidence in the first instance by the aggrieved party.
25. In my considered opinion, the trial in the present case was to be conducted as summons case and the provisions of summons case have not been complied with in the present case, as the aggrieved party party No. 1) did not lead may evidence in the first instance, which could have been led by him and therefore, adducing evidence subsequently would have no effect and thus, the whole trial became without jurisdiction. It was a criminal proceeding and not civil proceeding and if the party No. 1 led evidence after the evidence o the party No. 2 in rebuttal, it would have no effect and it would be treated as if no evidence was led by the party No. 1 in this proceeding, as in criminal cases, question of adducing evidence in rebuttal does not arise. Therefore, reliance on the evidence of the party No. 1 by the learned ADM is contrary to law and that order becomes without jurisdiction. In this respect, the decision in Maria Julia Coutinho v. Ananta Soman Chitara and Anr. (1), may be referred to.
26. Thus, from point of view also, the proceedings initiated under Section 133 Cr.P.C. are without jurisdiction and the same are liable to be set aside.
27. The argument raised by the learned counsel appearing for the party No. 1 that it should be termed as mere irregularity does not appear to be sound one.
28. Hence, the point No. 3 is also decided in favour of the parly No.2.
29. Apart from that, when the party No. 1 was directed by the learned Addl. District Magistrate (City), Sri Ganganagar vide order dated 17.12.1998 to make repair of the house in question, he filed revision petition against that order and the same was set aside by the learned Addl. Sessions Judge No. 1, Sri Ganganagar through judgment dated 4,3.1999 meaning thereby party No. 1 was not even ready to make repair of the house in question and was adamant that it should be demolished, therefore, he cannot be allowed to play on both sides.
30. For the reasons stated above, this is a fit case for exercise of powers under Section 482 Cr.P.C. and thus, this petition deserves to be allowed and the judgment dated 8.5.2000 passed by the learned Addl. Sessions Judge No. 1, Sri Ganganagar and order dated 23.3.2000 passed by the learned Addl. District Magistrate (City), Sri Ganganagar are liable to be set aside.
Accordingly, this misc. petition under Section 482 Cr.P.C. filed by the petitioner-party No.2 is allowed and the judgment dated 8.5.2000 passed by the learned Addl. Sessions Judge No. 1, Sri Ganganagar and order dated 23.3.2000 passed by the learned Addl. District Magistrate (City), Sri Ganganagar are set aside.