Allahabad High Court
Budhwa Son Of Chetta, Ramesh, Mahipal, ... vs State Of U.P. And Ors. on 23 November, 2005
Equivalent citations: 2006CRILJ1037, 2006 CRI. L. J. 1037, 2006 (2) AJHAR (NOC) 370 (ALL), 2006 (1) ALL LJ 503, 2006 (2) ABR (NOC) 287 (ALL), (2006) 2 RECCRIR 585, (2006) 1 ALLCRIR 443, (2006) 54 ALLCRIC 519
Author: K.N. Ojha
Bench: K.N. Ojha
JUDGMENT K.N. Ojha, J.
1. Instant application Under Section 482 Cr.P.C. has been moved by Budhwa and four Others residents of Mohalla Shivpuri, Qasba Rampur, police station Rampur, disttrict Saharanpur, against State of U.P. and opposite parties 2 to 9, who are private parties and are residents of the same Mohalla Shivpuri, for quashing the order dated 22:8.2005 passed by Upper Up Zila Magistrate in Criminal Case No. 7/2003-04, The State v. Budhwa and Ors. and order dated 21.9.2005 passed by learned Sessions Judge, Saharanpur in Criminal Revision No. 42 of 2005, Budhwa and Ors. v. The State of U.P. whereby a direction was made under Section 133 of Cr.P.C. directing the applicants to remove construction causing obstruction in public path situate in the aforesaid Mohalla Shivpuri.
2. Heard Sri Ashfaq Ahmad Ansari, learned Counsel for the applicants, learned AGA and have gone through the record.
3. The facts of the case is that Dheer Singh and seven others of the Mohalla Shivpuri moved application in the Court of Sub Divisional Magistrate, Deoband,
4. Saharanpur, on 15.7,2002 that they are residents of Mohalla Shivpuri. The opposite parties Budhwa and others are also resident of the same place. There is a public path of one meter in breadth to their house from outside. Budhwa and Others illegally raised construction on a part of the public path land. It was being removed by the complainants on 14.7.2002 but the applicants- accused caused injuries with iron rods, lathis, ballam and knife and threatening was also extended by the applicants. On this a case under Section 133 Cr.P.C. was registered and report was called for from the police station concerned. On 29.7.2002 the learned Magistrate passed order to issue conditional order under Section 133(1) Cr.P.C. Consequently notice was sent to the applicants, who filed their objection alleging that there was agreement deed in their favour, which related to 7.4.1986. The disputed land is part of Khasra No. 643, they are licencee of it and they have raised wall on their land and not on the public path.
5. The learned Magistrate perused the papers of the parties and arrived at the conclusion that the complainants had denied that the applicants had right in respect of the land in, dispute. The applicants examined Ramesh Kumar and Leeladhar as DW 1 arid DW 2. The applicants also filed copy of the order dated 25.4.2003 passed by the Civil Judge (Junior Division), Doband, Rampur, in Suit No. 303 of 2002, Budhwa v. Sukhram and Ors.. The learned Sub Divisional Magistrate observed that the path was blocked by the applicants by: raising construction. It was being used as public path, by the persons of the village and this is the only'path through which the villagers go to their residences and in case it was not removed there was continuous nuisance. The learned Magistrate also arrived at the conclusion that since it was a public path, therefore, the applicants had to remove their constructions within a week.
6. Revision was preferred by the applicants against the order dated 24.2.2005 before the learned Sessions Judge and it was pressed by the applicants that civil suit was pending between the parties, therefore, the case under Section 133 Cr.P.C, was not maintainable. The learned Sessions Judge perused the agreement filed by the applicants. In the opinion of the learned Sessions Judge it was ah unregistered agreement in respect of an immoveable property, so it was a void agreement. There was not registered sale deed in favour of the applicants, therefore, it was found that the applicants had no genuine claim about the path and the civil suit was not bar for initiating proceeding under Section 133 Cr.P.C. It was also observed that the civil suit was filed just few days before the order was passed under Section 133 Cr.P.C. and therefore the revision was dismissed.
7. Aggrieved there from the applicants filed Criminal Misc. Writ Petition No. 4197 of 2005, Budhwa and Ors. v. The State of U.P. and Ors. A copy of the judgment is at Annexure No. 9. This Court set aside the order dated 24.2.2005 passed by the learned Sub Divisional Magistrate and the order dated 15.4.2005 passed by the learned Sessions Judge and a direction was made that in view of the facts and circumstances involved in the case the Magistrate had to Inquire into the matter in accordance with the provisions of Section 138 Cr.P.C, It was further directed that the learned Magistrate shall proceed expeditiously with the proceedings and dispose of the matter within a period of two months from the date of presentation of a certified copy of the order.
8. In compliance of the order of this Court dated 21.5.2005 passed in the aforesaid writ petition, an order was passed by the learned Magistrate on 22.8.2005. The" learned Magistrate observed that prayer was made by the applicants to drop the proceedings Under Section 133 of Cr.P.C. as exparte order was passed by Civil Judge (Junior Division), Saharanpur, in civil suit No. 303 of 2002, Budhwa and Ors. v. Sukhram and Ors. but it was observed that the complainants- opposite parties, Sukhram and others had movedj application to recall the exparte order and for order being passed on merit after hearing both the parties and recording their evidence. It was also observed that the earlier order was passed, the revision was dismissed but since there was order of the Hon'ble High Court to decide the case on merit in the light of provisions of Section 138 of Cr.P.C., therefore, the proceedings under Section 133 Cr.P.C. could not be dropped, hence inquiry was to be made and thereafter order is to be passed. The learned Magistrate allowed opportunity to both the parties to adduce evidence Under Section 138 Cr.P.C. In compliance of ord.er dated 21.5.2005 passed by this Court in the aforesaid writ petition but the applicants were not satisfied, therefore, they again preferred revision in the Court of learned Sessions Judge, which was decided on 21.9.2005. The learned Sessions Judge observed that according to applicants proceedings Under Section 133 Cr.P.C. was not legally maintainable as civil suit was pending, but it was observed that in view of the direction of this Court the inquiry was to be made as contemplated under Sections 137 and 138 of Cr.P.C. and it was to be ascertained as to whether it was a fit case wherein proceedings should be dropped because civil suit is pending or it should be decided after considering the evidence of the parties.
9. Section 137 of Cr.P.C. contemplates as under:
137. Procedure where existence of public right is denied:-
(1) Where an order is made under Section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under Section 138, " inquire into the matter.
(2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until, the matter, of the existence of such right has been decided by a competent Court; and, if he finds that there is no such evidence, he shall proceed as laid down in Section 138.
(3) A person who has, on being questioned by the Magistrate under Sub-section (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial.
10. Section 138 of Cr.P.C. contemplates as under:
138. Procedure where he appears to show cause:- (1) 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.
(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 satisfied, no further proceedings shall be taken in the case.
11. Thus if there is any reliable evidence in support of such denial the proceeding of the criminal case Under Section 133 Cr.P.C. is to be stayed until the matter pof existence of such right is decided by a competent Court (Civil Court) but if the learned Magistrate finds that there is no reliable evidence and the nuisance has been caused and merely pretext is being taken that he has any right to cause Obstruction, the public nuisance is to be removed by the magistrate and he has to proceed in accordance with law as provided in Chapter X of Cr.P.C. For rriaintenance of public order and tranquility Section 138 specifically provides to record evidence in the matter as in summons case.
12. When notice was issued Under Section 133 Cr.P.C. by the Sub Divisional Magistrate applicants preferred revision, which was dismissed by the learned Sessions judge then the applicants preferred aforesaid writ petition and it was directed that inquiry was to be made as contemplated under Sections 137 and 138 Cr.P.C. and thereafter the order was to be passed. Before this Court the plea jwas not taken that the inquiry cannot be made as it was barred by the civil suit,
13. Which is pending between the parties in the Court of Civil Judge (Junior Division), Saharanpur. When there is a specific order passed by this Court in the aforesaid writ petition on 21.5.2005 the plea of proceeding under Section 133 Cr.P.C. was to be raised in the Court in the aforesaid Criminal Misc. Writ petition but it was not raised.
14. The learned Counsel for the applicant has relied on 1991(28) ACC 258, Brahmanand Rai v. The State of U.P. and Anr., wherein it has been laid down by a Single Bench of this Court that when there is denial of public way and there is a civil suit pending between the parties, in such circumstances the proceeding Under Section 133 Cr.PIC. should remain stayed till final-disposal of the civil suit.
15. The applicants have also placed reliance on 2004(50) ACC 812, Mohd. Latif and Anr. v. The State of U.P. and Ors. wherein it has been laid down by another Single Bench of this Court that it was the duty of the learned Magistrate concerned to have stopped the proceedings Under Section 137 Cr.P.C. till determination of the issue by the civil Court.
16. The jurisdiction of the Magistrate under Cr.P.C. is for its immediate effect, which is for removal of obstruction and nuisance from public place. In order to exercise this jurisdiction, the Magistrate may have to decide summarily whether a certain piece of land is a public or a private place. This decision is for incidental purpose. If the party to whom the notice is issued succeeds in proving that the locus is not a thoroughfare for a public place but is his private property, the Magistrate will be precluded in future from dealing with the place under the section.
17. In , The State of M.P. v. Dedla Leather and Liquor Ltd. and Ors., it has been laid down by Hon'ble the Apex Court that if there is imminent danger to the property and consequential nuisance to the property, the nuisance is concomitant act resulting in danger to the life or property due to likely collapse etc. The object and the purpose behind Section 133 of Cr.p.C 18 essentially to prevent public nuisance and involves a sense of urgency In the sense that if the Magistrate fails to take recourse immediately irreparable danger would be done to the public. It applies to a condition of the nuisance at the time when the order is passed and it is not intended to apply to future likelihood or what may happen at some later point of time. It does not deal with all potential nuisances, and on the other hand applies when the nuisance is in existence.
18. Law laid down by Hon'ble the Apex Court in this case is that civil suit decides the rights of the parties and it is a permanent settlement of the rights of the parties, but if the nuisance is existing and urgent relief is required, Section 133 Cr.P.C. has to come into play. Harmonious interpretation of the provisions of Cr.P.C. and the fact of pendency of the civil suit is that if the nuisance is such that there is urgent need of removal of nuisance or obstruction on the path, the inquiry is to be made by the Magistrate and order is to be passed. Such right cannot be waived by the Sub Divisional Magistrate merely because some civil suit is pending wherein ho specific order has been passed. What is alleged In this case is that a civil suit has been filed a few days before the proceeding under Section 133 Cr.P.C. was started and exparte order was obtained. Thereafter the complainants appeared and moved application to recall the order and to hear on merit. Since 2002 the problem arose but up till now no specific order could be passed by the civil Court as to who is in real possession and whether the construction was raised on the path at the time the application under Section 133 Cr.P.C. was moved or the construction was existing since long before. Thus when the Civil Court has to take much time in granting interim relief or to finally decide the rights of the parties and there is likelihood that untoward happening may take place on the spot between the parties, besides It, continuance of the construction is causing inconvenience to the villagers and the public at large of the village, it is not such a case in which inquiry should not be made and the order dated 21.5.2005 passed by this Court in the aforesaid writ petition be not complied with. No law has been cited by the learned Counsel for the applicants that mere pendency of the civil suit is sufficient ground for dropping the proceedings under Section 133 Cr.P.C. or 137 and 138 Cr.P.C. The proceeding under Cr.P.C. is dropped when a specific order is passed by the Civil Court In respect of the possession or when rights of the parties are decided. But when three years have passed away and no specific order has been passed In favour of either of the parties and it may take many years for getting the rights of the parties decided by the original Civil Court and the appellate Court. In such circumstances it would not be proper, lawful and in the interest of justice that the obstruction, if any, which has been caused is allowed to exist, which may cause continuance of inconvenience to the public o.f the locality. The nature of the relief, which is being granted by the Executive Magistrate under Section 133 Cr.P.C. is to remgve the nuisance immediately and if the proceeding of the case is dropped merely because a civil suit is pending, the object of Sections 133, 137 and 138 Cr.P.C. would fail. Therefore, if the learned Magistrate has passed order that inquiry is to be made in compliance of the order of this Court and parties have to adduce evidence, no illegality has been committed. By filing Instant application the applicants have prayed to quash the proceeding, which is being .Sclrawn by the Sub Divisional Magistrate in compliance of the order of this Court In the aforesaid writ petition. The learned Magistrate has passed order on 22.8.2005 in compliance of the order of this Court and by this order it was specifically observed that the prayer of the applicants to close evidence and drop the proceedings was rejected and a date was fixed for evidence of the parties. This order was confirmed by the learned Sessions Judge in revision by passing order dated 21.9.2005. These orders do not suffer from any illegality nor any injustice is being caused to the parties when both the parties are allowed to lead evidence in the inquiry, which is required under Sections 137 and 138 of Cr.P.C. It would not be in the interest of justice that there is no specific order of the Civil Court in respect of possession and the parties are allowed to commit breach of law and order on the spot or a section of the public is left to face dally inconvenience while coming to their residences.
19. The inquiry, which is being made under Sections 137 and 138 of Cr.P.C. by the learned Magistrate in compliance of the order passed by this Court in the aforesaid writ petition is neither illegal nor any injustice is being caused to either of the parties. If specific order on merit after hearing both the parties, is passed by the civil Court, of course the order passed by the criminal Court will be subject to the order passed by the civil Court, but there is no specific order of the civil Court in respect of this dispute nor any party has been restrained to interfere with the possession. Mere pendency of the civil suit does not exclude the right of the Magistrate to proceed in accordance with law for removal of nuisance. The learned Magistrate wants to ascertain as to whether there is any reliable evidence in support of such denial by the applicants in respect of the public path. Thus no illegality is being committed.
20. In view of the above discussion the application under Section 482 Cr.P.C, does not yield fruitful result and is dismissed. A copy of this order be sent to the learned Magistrate, who will decide the case expeditiously.