Rajasthan High Court - Jaipur
Smt Vijayrani And Ors vs State (2024:Rj-Jp:11609) on 6 March, 2024
Author: Sudesh Bansal
Bench: Sudesh Bansal
[2024:RJ-JP:11609]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 1739/2007
1. Smt. Vijayrani Wife of Late Shri Ajay Kumar, R/o 5/288,
Sahayog Nagar, Bharatpur, District, Bharatpur.
2. Sanjeev Son of Late Shri Ajay Kumar, R/o 5/288,
Sahayog Nagar, Bharatpur, District, Bharatpur.
3. Rajeev Son of Late Shri Ajay Kumar, R/o 5/288, Sahayog
Nagar, Bharatpur, District, Bharatpur.
4. Amit Son of Late Shri Ajay Kumar, R/o 5/288, Sahayog
Nagar, Bharatpur, District, Bharatpur.
5. Puneet Son of Late Shri Ajay Kumar, R/o 5/288, Sahayog
Nagar, Bharatpur, District, Bharatpur.
----Petitioners
Versus
1. State of Rajasthan through P.P.
2. Shyam Bihari Son of Shri Jageshwar Dayal, R/o Sahayog
Nagar, Bharatpur.
3. Suresh Chand Sharma Son of Shri Leeladhar Sharma,
R/o Sahayog Nagar, Bharatpur.
----Respondents
For Petitioner(s) : Mr. S.K. Gupta, Sr. Adv. with Ms. Surbhi Agrawal For Respondent(s) : Mr. Laxman Meena, PP Mr. Rinesh Gupta HON'BLE MR. JUSTICE SUDESH BANSAL Order 06/03/2024 Reportable
1. By means of this criminal misc. petition under Section 482 CrPC, a prayer has been made to quash the order dated 13.06.2007, passed by the Additional Sessions Judge No.2, Bharatpur in criminal revision petition No.85/2006 and order dated 14.10.2002, passed by the Additional District Magistrate-cum- Executive Magistrate, Bharatpur in case No.4/1997 titled Shyam (Downloaded on 13/03/2024 at 08:41:05 PM) [2024:RJ-JP:11609] (2 of 12) [CRLMP-1739/2007] Bihari Vs. Ajay Kumar, and to dismiss the complaint filed by non- petitioners No.2 and 3 under Section 133 CrPC.
2. Heard counsel for both parties and perused the material available on record.
3. It appears that non-petitioners filed a complaint under Section 133 CrPC before the Additional District Magistrate, Bharatpur (for short "ADM"), stating inter alia, that petitioners herein have blocked a public lane having width of 6-8 feet by raising construction of a room and affixing gate erecting two pillars and thereby have caused nuisance to public at large. The complaint was supported by affidavits of few neighbors namely Sudha Rani, Daulat Ram, Kamal Kishore and Laxman, all residents of Sahyog Nagar, Bharatpur. Learned District Magistrate, on receiving the complaint, passed a conditional order dated 27.05.1997, requiring petitioners to remove pakka construction from the public lane in exercise of its powers under Sub Section 1 of Section 133 of CrPC. On service of the conditional order upon petitioners, they filed reply to the complaint categorically denying the existence of any public lane in between houses of both parties. Petitioners clearly contended that they purchased the land, House No.05/288, situated at Sahyog Nagar, Bharatpur, from one Vijayrani through registered sale deed dated 17.07.1972 and towards western side of their houses, 20 feet wide way is available whereupon main gate of their houses open. It was contended that construction, which has been alleged by non-petitioners to be raised on the public land, is basically situated on their own land. Non-petitioners, having malevolent intentions against them and (Downloaded on 13/03/2024 at 08:41:05 PM) [2024:RJ-JP:11609] (3 of 12) [CRLMP-1739/2007] having an intention to get demolish their construction, that too with the aid of District Magistrate have filed this false complaint u/s.133 CrPC. Then learned District Magistrate proceeded to hold an inquiry and granted opportunities to adduce evidence, thereafter vide final order dated 14.10.2002, made the conditional order dated 27.05.1997, absolute and directed petitioners to remove the construction from the public lane, marked as ABCD in the map appended with the complaint, within a period of 15 days, albeit, construction shall get removed with the assistance of police.
4. It appears that petitioners challenged the final order dated 14.10.2002 by way of filing criminal revision petition and pointed out that the UIT, Bharatpur has regularized the purchased land of petitioners i.e house No.5/288, Sahyog Nagar, Bharatpur. In the registered lease deed of petitioners' plot, issued by the UIT, Bharatpur, the disputed lane has not been shown as a public lane. Similarly, existence of public lane is not proved by sale deeds of adjoining plots. The Court of Additional Sessions Judge No.2, Bharatpur while deciding the revision petition on merits vide order dated 13.06.2007, observed that in the map appended with the patta issued by the UIT, Bharatpur in respect of plot of petitioners, though, existence of public lane is not shown, but same is referred in the sale deed. Further, it was noted that petitioners did not make cross examination of witnesses, who sworn their affidavits in support of case of non-petitioners. The Revisional Court also referred about pendency of a civil suit for permanent injunction, but observed that this suit is not in respect of the disputed lane (Downloaded on 13/03/2024 at 08:41:05 PM) [2024:RJ-JP:11609] (4 of 12) [CRLMP-1739/2007] and finally affirmed the order of removal of construction passed by the District Magistrate and dismissed the revision petition vide order dated 13.06.2007. Hence, this petition.
5. Before embarking upon merits of both impugned orders, it would be noteworthy to keep in mind that on filing of the instant petition, status quo has been ordered to be maintained in respect of disputed property since 29.05.2009, and thus the order passed by the Executive Magistrate for removal of the construction of petitioners has not been executed.
6. At the outset, it may be noted that Section 133 of the Code of Criminal Procedure is envisaged under Chapter X of the Code which deals with "Maintenance of Public Order and Tranquility". Section 133 talks about the conditional order for removal of Nuisance, for which powers have been entrusted to a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate whosoever is empowered by the State Government in this behalf. The concerned authority may exercise powers under this Section either on receipt of a police report or other information and on the basis of evidence, if any, which invite the case to fall within six categories enumerated under Sub-Section 1 of Section 133. On prima facie satisfaction, authority may pass conditional order, which is required to be served upon the opposite party and after service being effected, the opposite party or person to whom order is addressed to obey or show cause, may carry out the order [Section 135(a)] or if he does not, he has to show cause against the order [Section 135(b)]. The present case (Downloaded on 13/03/2024 at 08:41:05 PM) [2024:RJ-JP:11609] (5 of 12) [CRLMP-1739/2007] falls in the category of Section 135(b) where petitioners put in appearance before the District Magistrate and declined the existence of any public lane, so also their construction to be an obstruction on the public lane. In such an eventuality, it was necessary for the District Magistrate to hold a preliminary inquiry about existence of any public right in respect of the alleged public lane by virtue of Section 137 CrPC. The provision of Section 137 CrPC is mandatory, before taking recourse to the procedure laid down under Section 138 CrPC. Section 138 deals with providing opportunity to parties to produce evidence. As per provisions of Section 139 and 140 CrPC, the Magistrate is empowered to seek assistance of any expert body or person for the purpose of an inquiry under Section 137 or 138 CrPC. Section 142 stipulates to issue an injunction, if a Magistrate making an order under Section 133 of the Code, considering that immediate measures should be taken to prevent the eminent danger or injury of a serious kind to the public. The Magistrate is further empowered by virtue of Section 143 CrPC, to pass an order against any person not to repeat or conduct a public nuisance.
7. The whole scheme of Section 133 CrPC meant to prevent public nuisance is fundamentally for the purpose to take prompt and speedy action by the Executive Magistrate to pass expedient and appropriate orders in a case, where any public nuisance or obstruction is proved to be made out against the right of public at large. It means to attract the applicability and to invoke scope of Section 133 of the Code, there must be an eminent danger to the property or health and same must lead to consequential nuisance (Downloaded on 13/03/2024 at 08:41:05 PM) [2024:RJ-JP:11609] (6 of 12) [CRLMP-1739/2007] to the public at large. Indeed, the object and purpose of Section 133 of the Code is essentially to prevent public nuisance and that too in emergent circumstances of that intensity that if the Magistrate fails to take recourse immediately, same would result irreparable damage to the public. Hence, it can be held that the order, contemplated under Section 133 CrPC is basically for the benefit of public at large and cannot be passed to safeguard any civil and legal rights of an individual. Any private person may not invoke powers of the Executive Magistrate as envisaged under Section 133 CrPC to obtain any relief in connection with his personal civil or legal rights.
8. The Hon'ble Supreme Court in cases of Vasant Manga Nikumba Vs. Baburao Bhikanna Naidu (Deceased) By LRs. [(1995) Suppl. 4 SCC 54] has observed and held that no action can be taken under Section 133 CrPC where the obstruction or nuisance has been in existence for a long period and in that situation, the only remedy open to the aggrieved party was to approach before the Civil Court for redressal of grievances. Section 133 is attracted only in a case of emergency and immediate danger to the health or physical comfort to the community. The relevant paras of the judgment are reproduced as under:-
"A reading of Section 133 would clearly indicate that the Executive Magistrate has been empowered, on receiving a report of the police officer or other information and on taking such evidence as he thinks fit that any building, tent or structure is in such a condition that, due to failure to remove, disrepair, or without support it is likely to fall and thereby cause injury to persons living or carrying on business in the (Downloaded on 13/03/2024 at 08:41:05 PM) [2024:RJ-JP:11609] (7 of 12) [CRLMP-1739/2007] neighbourhood or passing by and that in consequence he is empowered to specify the time to remove, repair or provide support to such building, tent or structure or tree. Two options are open to the Executive Magistrate on considering whether structure, building etc. is in such a dilapidated condition which requires to be demolished immediately which brooks no delay to avert danger to the life and property of the neighbourhood or passer-by unless they could be suitably repaired or supported so as to avert danger to the public or have it removed, etc. The condition precedent to exercise the power under Section 133 is the imminent danger to the property and consequential nuisance to the public. The removal of the building is so urgently required as it is likely to fall and cause injury to persons living or carrying on business in the neighbourhood or passers-by. The nuisance is the concomitant act resulting in danger to the life or property due to likely collapse etc. The dangerous condition of the building is in praesenti but not in future. The section is limited to injuries likely to be caused to the passers-by or persons living or carrying on business in the neighbourhood. Each case has to be considered in the light of the facts and circumstances obtained in each case
5. In T.K.S.M. Kalyanasundaram v. Kalyani Ammal [(1975)2 MLJ 93 (Mad)], the Madras High Court held that the alleged nuisance would have been in existence for a long period. The circumstances and the evidence in that case did not prove that an urgency existed warranting the taking of action under Section 133. No action can be taken under this section where the obstruction or nuisance has been in existence for a long period and the only remedy open to the aggrieved party was to move the civil court. It was also held that Section 133 is attracted only in cases of emergency and immediate danger to the health or physical comfort of the community. Accordingly on the facts in that case, it was held that there was no immediate danger or emergency for the removal of the structure offending in that case. It is also settled law that recourse to Section 133 could not be a substitute for the civil proceedings and the parties should have recourse to the civil remedy available and should not be encourse (sic encouraged) to taking recourse to the provisions of Section 133 of the Code."
9. The ratio decidendi as expounded by the Hon'ble Supreme Court in case of Vasant Manga Mikumba (supra) was affirmed and followed by the Apex Court again in case of State of MP Vs. (Downloaded on 13/03/2024 at 08:41:05 PM) [2024:RJ-JP:11609] (8 of 12) [CRLMP-1739/2007] Kedia Leather & Liquor [(2003) 7 SCC 389] wherein it was held that to bring in application of Section 133 CrPC, there must be an eminent danger to the property and consequential nuisance to the public. The provision of Section 133 of the Code can be culled in aid to remove public nuisance caused by affluent of discharge and air discharge causing hardship to the general public. It was observed that proceedings under Section 133 of the Code are in nature of civil proceedings and not criminal proceedings, which may also not be confused with powers and jurisdiction of the Magistrate to be exercised under Section 144 CrPC.
10. Coming to the case at hand and considering the facts on the touchstone of the under-laying object, where powers of District Magistrate under Section 133 CrPC can be invoked, it is admitted case of non-petitioners that pakka construction of room and two pillars have been made by petitioners and the gate has been affixed to block the alleged public lane. Non-petitioners have not disclosed the period, date, month or year as to when the alleged construction was made by petitioners. In addition, no cogent evidence was produced by non petitioners before the District Magistrate to prove existence of a public lane and that too any such public lane was available at site for use by the public at large. In the impugned order of Magistrate dated 14.10.2002, reference is only about filing of affidavits by four persons namely Sudha Rani, Daulat Ram, Kalam Kishore and one Laxman, who all are resident of Sahyog Nagar, Bharatpur only. Petitioners have clearly denied existence of any public lane more so not to be used by the public at large. The impugned order of the Magistrate does (Downloaded on 13/03/2024 at 08:41:05 PM) [2024:RJ-JP:11609] (9 of 12) [CRLMP-1739/2007] not depict that what evidence or other material came on record before him for recording, prima facie, satisfaction for existence of public lane and about having any eminent danger to the public at large by the construction of petitioners on such public lane. Even the order is silent to record a finding of satisfaction to hold an inquiry under Section 137 CrPC that the alleged lane, if was in existence, is a public lane or not, and whether was being used by the public at large. When petitioners retaliated the conditional order, passed by the Executive Magistrate under Section 133(1) of the Code and filed reply to the complaint, so also produced documents including their registered lease deed issued by the UIT, Bharatpur showing non existence of the alleged public lane at the site, it was essential and mandatory for the Magistrate to hold an enquiry, first about existence of a public lane for the benefit of public at large, which has not been done in the present case. The Magistrate proceeded to pass the final order for removal of construction of petitioners merely on the ground that petitioners did not cross-examine the executans of affidavits of four persons produced by non-petitioners in support of their complaint. Three four persons are not disinterested witnesses. No findings to have any eminent danger to rights of public at large have been recorded by the Magistrate. Therefore, this court comes to the conclusion that the order impugned dated 14.10.2002 passed by the Magistrate does not stand within ambit and scope of Section 133 CrPC and has been passed against the mandate of law required to be followed for passing order u/s.133 CrPC. (Downloaded on 13/03/2024 at 08:41:05 PM) [2024:RJ-JP:11609] (10 of 12) [CRLMP-1739/2007]
11. The Court of Additional Sessions Judge No.2, Bharatpur while exercising its powers of Revision against the impugned order dated 14.10.2002 completely ignored the essential ingredients, required under law to pass an order within the scope of Section 133 CrPC and proceeded to adjudicate documents of parties exercising its jurisdiction just like a Civil Court. In the present case, when a dispute between two groups private parties have erupted as to whether the disputed lane having width of 6-8 feet, is a public path or a private land, same is obviously a disputed question of fact which should not have been addressed by the Revisional Court, usurping the jurisdiction of the Magistrate or the jurisdiction of Civil Court more so when, it has been brought to notice of the revisional court that a civil suit between parties is pending as noted in the order itself. Such question cropped up, after filing of reply by petitioners, to the complaint filed by non- petitioners under Section 133 CrPC, could have been answered, only after evaluating and scrutinizing the material evidence, for which opportunity was required to be given to the both parties. Hence the court of revision travelled beyond its jurisdiction. More so, such disputed question of fact, pertaining to immovable property, could not have been adjudicated in the summary proceedings u/s.133 CrPC. Much less at least not by the Revisional Court in exercise of its revisional jurisdiction in criminal revision. Hence, this court is of the considered opinion that the impugned order dated 13.06.2007 also suffers from manifest and grave illegality and valuable on account of jurisdictional error as well and leads to failure of justice.
(Downloaded on 13/03/2024 at 08:41:05 PM) [2024:RJ-JP:11609] (11 of 12) [CRLMP-1739/2007]
12. In somewhat similar set of facts and circumstances, the High Court of Himachal Pradesh in case of Kashetar Pal Singh alias Kripal Singh Vs. Harpal Singh [2016 0 Supreme (HP) 2371] Cr.MMO No.109 of 2014 decided on 28.12.2016, declined to adjudicate the dispute between the private parties, which was not related to the public rights and not of general interest of public at large, within the scope of Section 133 of the Code of criminal procedure and the Court held as under:-
"Proceedings under Section 133 of CrPC are not intended to settle private dispute between to members of the public. It is settled law that if a dispute is of civil nature then the dispute cannot be entertained by the Magistrate under Section 133 CrPC. Provisions of the said Section can be used only for settlement of dispute in relation to a public right in the general interest of public at large."
13. This Court is of the considered opinion that on facts of the case at hand, the dispute about encroachment over a gali of 6-8 feet wide allegedly to be in existence between houses of petitioners and non-petitioners, is virtually a private dispute between two members of public and proceedings under Section 133 of CrPC could not have been invoked to settle such private dispute. This is an additional point that it is also questionable that such gali was a public lane or not, that too for the benefit of public at large? In facts of the present case, such dispute neither has been adjudicated nor can be decided in the proceeding u/s.133 CrPC. Thus, the complaint filed by non-petitioners could not have been entertained by the District Magistrate within the scope of Section 133 CrPC and impugned orders passed on such complaint, (Downloaded on 13/03/2024 at 08:41:05 PM) [2024:RJ-JP:11609] (12 of 12) [CRLMP-1739/2007] stand wholly erroneous, illegal as much as without jurisdiction. Therefore, in order to prevent the abuse of process of the Court, it is desirable for the high court, to quash both impugned orders in exercise of its inherent jurisdiction.
14. The upshot of discussion made hereinabove is that this petition stands allowed. Impugned orders dated 14.10.2002 and 13.06.2007, are hereby quashed and the complaint filed by non- petitioners under Section 133 CrPC is dismissed. Parties shall bear their own costs.
15. However, it would be open to non-petitioners to take any other legal action as may be advised for redressal of their grievance, if any.
16. Stay application and other pending application(s), if any, also stand disposed of.
(SUDESH BANSAL), J Nitin/432 (Downloaded on 13/03/2024 at 08:41:05 PM) Powered by TCPDF (www.tcpdf.org)