Delhi District Court
Cr No. 99/13 vs State on 16 August, 2013
CR No. 99/13
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDITIONAL SESSIONS JUDGE
DWARKA COURTS : DELHI
In the matter of :
CR No. 99/13
1 G.M Building Material Supliers
through its proprietor Sh. Satpal S/o Sh. Gurditta
R/O 74, Old Roshan Pura, Najafgarh
2 M/S Sh. Ram Building Material Suppliers
Through its proprietor Sh. Birender s/o Har
ChandigarhR/O V.P.O. Pandwala Kalan, New Delhi.
3 M/S Raj Building Material Suppliers
Through its proprieor Raj Singh s/o Sh. Dalip
Singh
R/o H No. 1683/G3, Todar Mal Colony, Najafgarh,
Delhi .
4 M/S Pardeep Building Material
Through its proprietor Sh. Parveen Malik s/o Sh.
Sukhbir
R/O RZ55, M Block, Gopal Nagar, Najafgarh, Delhi
5 M/S Shivan Building Material Suppliers
Through its Proprietor Sh. Jai Kishan s/o Sh.
Prithavi Singh.
R/o Village Jhul Jhuli , Delhi
6 M/S Sehrawat Building Material Suppliers
Through its proprietor Sh. Romy s/o Sh.
Dharampal
R/o Village Bakkarwala, Delhi
7 M/S Om Guru Kirpa Stock
Through its proprietor Sh.Ram S/o Sh. Prehlad
CR No.99/13 Page 1 of 12 16.08.2013
CR No. 99/13
R/o Village Khera Badar, Delhi
...Petitioners
VERSUS
1 State
2 SDM, Najafgarh Sub Division
Najafgarh, Delhi
... Respondents
CR No. 99/13
Date of Institution: 04.07.2013
Reserved for orders on: 02.08.2013
Judgment announced on: 16.08.2013
ORDER
1. Vide this order, I shall dispose of this revision petition filed by the petitioners against the impugned order dt. 22.4.2013.
2. Briefly stating, it is alleged that ld. SDM , Najafgarh has passed the impugned order whereby the petitioner as well as Deputy Commissioner and Executive Engineer of MCD has been directed to remove /seize the building material lying at the site of the petitioner. It is further stated that the petitioner alongwith other 100 traders are running their business in the shops and open plots on the location of Main Khaira Najafgarh Road since last more than 20 years. The said business sites are located outside the residential area CR No.99/13 Page 2 of 12 16.08.2013 CR No. 99/13 which is thickly populated and the petitioner and other traders are running their business in their respective plots and has not created any obstruction and any nuisance on the public road and the building material has been stocked within the boundaries of their plots but on the basis of frivolous complaints of some persons, ld. SDM has initiated proceeding u/s 133 of Cr.PC and passed a conditional order dated 28.8.2012 without any opportunity of hearing being granted to the petitioner. It is further alleged that the petitioner has not violated any provision of law and no such public nuisance has been created by the petitioner which may cause injury to the health of residents of the locality.
3. It is further contended that ld. Trial court has passed a conditional order and in view of the conditional order, the petitioner has filed his WS denying each and every allegation made in the complaint. Ld. SDM has passed the impugned order in fragrant violation of the mandate of statutory provision of sections 133 to 143 of the code and prayed that the impugned order is liable to be set aside. It is further contended that the impugned order is against the mandate of law as no opportunity has been given to the petitioner to lead evidence in his defence as per the mandate of section 138 cr.p.c and passed the impugned order without appreciating mandatory provision of law. It is further contended that the petitioners are running their business for the last more than 15 years. No other complaint was ever made against the petitioner. There is no emergency and CR No.99/13 Page 3 of 12 16.08.2013 CR No. 99/13 imminent danger of any kind to public at large . Therefore, provision u/s 133 of the code is not attracted. It is further contended that ld. SDM has failed to comply with the provision of Section 138 of the Code after passing the conditional order u/s 133 of the Code and as per mandate of section 138, the petitioners should have been given opportunity to lead evidence in support of their defence and thereafter, the conditional order should have been made absolute. Otherwise also, Ld. SDM has failed to comply with provisions of Section 138 cr.pc. So far as expert opinion was required as to whether the trade carried out by the petitioner is injurious to human life or not. In the absence of any report of the expert regarding causing any injurious to health of public at large by the trade/ business carried by the petitioners, therefore, the impugned order is liable to be set aside. In this regard, he has relied upon Ram Lal Vs. State of Haryana passed by Punjab and Haryana High Court 2002(2) RCR (Criminal), Sham Lal Director G. S Auto Industries Pvt. Ltd. Vs. Raj Kumar Aggarwal ( P & H) 2002(2) RCR (Criminal), Sushil Ranjan Nath Vs. Satyabrata Dey passed by Gauhati High court 2002(1 ) RCR (Criminal), Apex Chemical Vs. State ( P &H) in crl. M. 2128M of 1992 , Brij Kishore Rai Vs. State of UP ( Allahabad) 2003(1) RCR (Criminal) and Makhan Lal Vs. Butta Singh ( P&H) 2003(2) RCR (Criminal).
4. Per contra, ld. Counsel for the respondent has contended that impugned order has been passed after giving CR No.99/13 Page 4 of 12 16.08.2013 CR No. 99/13 opportunity of hearing to the petitioner and to file WS and WS had taken into consideration while making the conditional order as absolute and impugned order is passed after following the provisions of law as laid down in Cr.P.C and the impugned order is sustainable in the eyes of law and this petition deserves to be dismissed.
5. Before proceeding further, I would like to reproduce section 133 and 138 Cr.PC as under: Section 133: Conditional order for removal of nuisance: (1) whenever a District Magistraet or a Sub - Divisional Magistrate or any other Executive Magistrae specially empowered in this 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 good or merchandise, is injurious to the CR No.99/13 Page 5 of 12 16.08.2013 CR No. 99/13 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 conflagration 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, CR No.99/13 Page 6 of 12 16.08.2013 CR No. 99/13 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 , tent or structure , or to remove or support such trees; 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 n 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 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.
CR No.99/13 Page 7 of 12 16.08.2013 CR No. 99/13 Explanation. A " public place" includes also property belonging to the state ,camping grounds and grounds left unoccupied for sanitary or recreative purpose.
Section 138: Procedure where he
appears to show cause (1) If the
person against whom an order u/s
133 is made appears and shows
cause against the order, the
Magistrate shall take evidence in the matter as in summonsCase.
(2) If the Magistrate is satisfied
that the order, either as originally
made or subject to such
modification as he considers
necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be, with such modification.
3) if the Magistrate is not so satisfied , no further proceedings shall be taken in the case.
6. A bare perusal of the above provisions will leave no manner of doubt that Sub - section (1) of section 138 of the Code casts a duty upon the Magistrate to take evidence so as to enable him to make the conditional order passed under Section 133 of the Code absolute. Non compliance of the procedure laid down in Section 138 (1) of the Code would CR No.99/13 Page 8 of 12 16.08.2013 CR No. 99/13 vitiate the entire proceedings.
7. In the present case, the petitioners have filed WS and then ld. SDM has passed the impugned order making the conditional order as absolute one but this did not absolve the Magistrate from complying with the above noted mandatory provisions of law. There is well settled principle in this regard that where is the statute directs anything tobe done in a particular way that would include in itself that it has not to be done otherwise. Even in Banta Singh Vs. Sohawa Singh and others , 1976 Cr.L.j 1448, Hon'ble High Court has even not upheld aducing of evidence by way of affidavit and held that the Magistrate is bound to record evidence in the same manner as is recorded in a summons case. It would be obvious from this analysis of S. 133 that it is nowhere contemplated by the Section that it would govern cases where an imminent breach of the peace is apprehended. The "serious injury" or the "imminent danger" contemplated by S. 142,Criminal P.C, refers to the injury or danger emanating from those things themselves which are specified in S.133 and consequently S.142 is limited in its scope. An order under S.142 could therefore be passed only if an injury or danger specified in S.133, Criminal P. C was apprehended and not otherwise. Such "serious injury" or" imminent danger" is non existent in this case.
8. It may be noted here that in para 8 of Brij Kishore Rai Hon'ble Allahabad High Court (supra), it has been observed CR No.99/13 Page 9 of 12 16.08.2013 CR No. 99/13 as under:
In the instant case, the petitioner against whom the conditional order under S.133 (1),Cr.P.C was passed admittedly appeared before the Magistrate, filed his show cause and also filed evidence in support of denial. The learned Magistrate has not recorded any findings that the evidence adduced by the petitioner was reliable in support of denial or not. His entire findings was based on local inspection. There is also no such finding that the land in question was public path. In fact no discussion on the document and evidence of the petitioner was made and the learned Magistrate blindly accepted the inspection note. The local inspections are made for better appreciation of the evidence on record and should not be used as sole basis for deciding the matter in controversy. The Revisional Court has also not taken into consideration this aspect and wrongly confirmed the impugned order passed by the Magistrate. In CR No.99/13 Page 10 of 12 16.08.2013 CR No. 99/13 these circumstances, the order passed by the Magistrate as well as the Sessions,Judge are liable to be quashed.
9. A proceeding is drawn up under section 133(1) Cr.PC for alleged obstruction of a public right or public nuisance creating health hazard, the Magistrate is to make two inquiriesfirstly to determine whether or not there exists any public right in respect of the way etc. or public nuisance leads to health hazard and secondly, whether or not there has been obstruction caused on the said way etc. regarding the use of it by the public or such public nuisance is hazardous to health as per expert opinion. These two enquiries cannot be made simultaneously without complying with the requirements of sections 137 and 133, Cr.PC. If the party against whom the conditional order has been made denies the existence of the alleged public right or denies prevalance of public nuisance, the Magistrate shall enquire that question by taking evidence of such objector. If on such enquiry the Magistrate finds that the evidence in support of the denial of alleged right/public nuisance is reliable the Magistrate shall stay the proceedings before him until the question of existence of such right is decided by a competent court. If, however, the Magistrate finds that such evidence is not reliable, he shall then proceed under section 138, Cr.PC to determine the other question viz., whether there has been any obstruction/public nuisance etc caused by the objector, by taking evidence of both the parties.
CR No.99/13 Page 11 of 12 16.08.2013 CR No. 99/13 If on taking such evidence the Magistrate finds that the conditional order is reasonable and proper, he shall make it absolute, with or without modification as may be necessary, or if not so satisfied he shall close the proceeding under section 133, Cr.PC.
10. From the above discussion, I am of the opinion that the impugned order suffers from illegality and before making conditional order as absolute the Ld. SDM was supposed to give an opportunity to the petitioner to lead evidence as per mandate of section 138 (1)of the Code, therefore, the impugned order is hereby set aside and the ld. SDM is hereby directed to provide opportunity to lead evidence in order to determine as to whether the acts of the petitioners is falling within the parameters of public nuisance under provision u/s 133 Cr.PC. With these observations, this petition is disposed off.
11. The matter is remanded back to the ld. SDM for deciding the matter afresh in the above said terms. Trial record be handed over to the official of SDM present in court. Copy of order be sent to the Ld. SDM. Petitioner is directed to appear before the ld. SDM, Najafgarh on 02.09.2013.
12. File be consigned to Record Room.
Announced in the open court (Vijay Kumar Dahiya) on the 16th Day of August 2013 ASJ/ Dwarka Courts CR No.99/13 Page 12 of 12 16.08.2013