Madhya Pradesh High Court
Kunoo vs Sewalal And Anr. on 9 December, 2005
Equivalent citations: 2006(1)MPHT449
ORDER S.S. Dwivedi, J.
1. This is a petition under Section 482, Cr.PC filed by the petitioner feeling aggrieved by the order dated 17-5-2passed by Third Additional Sessions Judge, Chhatarpur whereby the order dated 25-1-02 passed by S.D.M., Rajnagar in Case No. 4/02 has been confirmed.
2. The brief facts of the case are that the non-applicant No. 1 Sewalal filed a report at P.S. Rajnagar that the present petitioner Kunoo obstructed the common way by constructing a wall on Survey Nos. 1258 and 1260 situated at Village Talgaon and thereby obstructing the common way of the agriculturists of the village which constitute the public nuisance. On this report, the police Rajnagar filed a complaint under Section 133 of the Cr.PC before the SDM Rajnagar. After giving opportunity to both the parties, the learned SDM Rajnagar vide impugned order dated 25-1-02 ordered for the removal of the concerning wall constructed by the present petitioner within a week. Feeling aggrieved by the aforesaid order, the petitioner came up in revision under Section 397, Cr.PC which has been decided by the Third Additional Sessions Judge, Chhatarpur in Criminal Revision No. 21/02 vide order dated 17-5-02 and dismissed the revision petition. Again feeling aggrieved by the aforesaid order passed by the Court below, the petitioner came up before this Court under Section 482, Cr.PC for the quashment of the entire proceedings registered under Section 133 of Cr.PC.
3. The learned Counsel for the State supported the impugned order passed by the Courts below and prayed for the dismissal of the petition.
4. It is submitted by the learned Counsel for the petitioner that admittedly the disputed land Survey Nos. 1258 and 1260 belongs to the petitioner Kunoo and he has a right to use his land as per his desire. He constructed the concerned wall on his land. If the other villagers or non-applicant No. 1 has any right of way on this land then they should approach the Civil Court for mandatory injunction or approach to the Revenue Court under the owers of Section 131 of M.P. Land Ravenue Code. If the State has any grievance to provide the right of way on this land then also the Government has a right to acquire this land as per the provisions of the Land Acquisition Act. But no question arise to disturb the possession of the petitioner's land under the provisions of Section 133 of the Cr.PC therefore, prayed for the quashment of the orders passed by the learned Courts below.
5. It is submitted by the learned Counsel for the non- applicant No. 1 that the learned Courts below rightly held that the petitioner had obstructed the way of the villagers which constitute the public nuisance and the learned SDM has rightly ordered for the removal of the public nuisance under the powers conferred under Section 133, Cr.PC. Therefore, prayed that no ground is made out to interfere with the orders passed by the Courts below.
6. On perusal of the pleadings of the parties and the evidence on record, it is not in dispute that the Survey Nos. 1258 and 1260 situated at Village Talgaon belongs to the petitioner. The villagers as well as the non-applicant No. 1 claims the right of way on this land. It is also admitted that the applicant constructed the wall on his own land, therefore, apparently unless and until the obstruction created by the petitioner on the public way, the powers under Section 133, Cr.PC can not be invoked.
7. It is useful to quote here the provisions of Section 133, Cr.PC, which is as under :-
Section 133(1) Whenever a District Magistrate or a Sub- Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government on receiving the report of a public officer or other information and on taking such evidence (if any) as he thinks fit, considers :-
(a) that any unlawful obstructions 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 of 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 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 owing, possessing or controlling such building, tent, structure, substance, tank, well or excavation or owing 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 of 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 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.
8. On perusal of the aforesaid provisions of Section 133, Cr.PC, it is apparent that the orders passed by SDM or District Magistrate with regard to the obstruction on the public way, the requirement is that it should be on the public place or on the public way.
9. As stated hereinabove, admittedly the land Survey Nos. 1258 and 1260 belongs to the ownership of the present petitioner, therefore, this land can not be said to be the public place or public way for the common use. If for the convenience of the villagers, the Government wants to use this land as a public way in that case the State Government has right to acquire the land for the public purpose as per the provisions of Land Acquisition Act but the wall constructed by the petitioner can not be removed under the powcis conferred under Section 133 of the Cr.PC.
10. For this proposition, this Court in Shivcharan v. Smt. Rita Rani Gupta and Ors. 1994 (2) VIBHA 171, held as under :-
Though there is evidence that the disputed plot is used by the public as a passage, it is seen from the evidence of one of the villagers that there is another way to go to the main road. Merely because the residents of the village do not use that road to go to the main road, because it is a crowded road, it does not convert the disputed site into a public place. Under Section 133(1)(a), Cr.PC, the Court can exercise jurisdiction only when the obstruction or nuisance is from any public place or from any way, which is lawfully used by the public. The allegation of the applicant is that he has acquired title of the property by purchasing it from the non-applicant No. 3. The learned Counsel for the non-applicants 1 and 2 submitted that there is no registered-deed executed in favour of the applicant, but there is only an agreement for purchase in favour of the applicant. The very fact that non-applicant No. 3 has executed an agreement of sale in favour of the applicant shows that it is a private property. The submission of the applicant that the applicant is owner is further confirmed by the entries. Merely because the public for their convenience have been using the disputed site for passage to the main road, does not convert it into a public place or a way, which is lawfully used by the public. As rightly submitted by the learned Counsel for the non-applicants, the learned Magistrate is not competent to give any declaration that the land is a private land. However, in order to invoke the provisions under Section 133(1)(a), Cr.PC, proof that the plot in question is a public place or a way, which is lawfully used by the public, is essential. The evidence only shows that in spite of the existence of an alternate passage, the villagers have been using this plot to reach the main road because of their convenience. I, therefore, hold that it does not convert the private property into a public place so as to invoke the provisions of Section 133(1)(a), Cr.PC.
11. Therefore, on the basis of the aforesaid law laid down by this Court, it is apparent that the wall had been constructed by the petitioner on his own land and under his own right of ownership, therefore, this wall can not be ordered to be removed under the provisions of Section 133, Cr.PC.
12. Thus, both the Courts below erred in allowing petition under Section 133, Cr.PC and also erred in order for the removal of the aforesaid wall from the land belonging to the applicant.
13. Consequently, the petition filed by the applicant is allowed the impugned order dated 17-5-2002 passed by Third Additional Sessions Judge, Chhatarpur and the order dated 25-1-02 passed by SDM, Rajnagar in Criminal Case No. 4/02 is set aside. The complaint filed under Section 133, Cr.PC is dismissed, proceedings quashed.
Petition is disposed of.
C.C. as per rules.