Chattisgarh High Court
Shakil vs Gopal Vishwakarma on 26 September, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRMP No. 1816 of 2019
Shakil S/o Noor Mohammad, Caste Musalman, Aged about
48 years, Occupation Business, R/o Village Patna, Police
Station Patna, Tahsil Baikunthpur, Distt. Koriya,
Chhattisgarh.
---Appellant
Versus
1. Gopal Vishwakarma S/o Nakul Vishwakarma, Caste Lohar,
Aged about 48 years, Occupation Business, R/o Village
Patna, Police Station Patna, Tahsil Baikunthpur, Distt.
Koriya, Chhattisgarh.
2. State of Chhattisgarh through the Sub-divisional
Magistrate, Baikunthpur, Distt. Koriya, Chhattisgarh.
---Respondents
For Appellant :- Mr. Ashok Kumar Shukla, Advocate For Respondent 1 :- Mr. Avinash Chand Sahu, Advocate For Respondent 2/State :- Mr. Arjit Tiwari, P.L. Hon'ble Shri Justice Sanjay K. Agrawal Order on Board 26/09/2022
1. The instant petition under Section 482 of CrPC is directed against the impugned order dated 08/07/2019 (Annexure P/1) passed by the Additional Sessions Judge (FTC), Baikunthpur in Criminal Revision No. 16/2018 by which 2 the revision filed by respondent No. 1, against the order dated 25/02/2019 (Annexure P/2) passed by the Sub- divisional Officer, Baikunthpur in Misc. Cri. Case No. 1/2019 directing respondent No. 1 for removal of nuisance, has been allowed by setting aside the order passed by the Sub-Divisional Officer, Baikunthpur.
2. Petitioner herein filed an application under Section 133(1) of CrPC before the Executive Magistrate, Patna, Tahsil Baikunthpur, Distt. Koriya stating inter alia that respondent No. 1 is operating cement shop and running fabrication work in the neighborhood of the residential area where the petitioner is residing and the act of respondent No. 1 creates nuisance as well as sound and air pollution which is endangering life. The Executive Magistrate, Patna registered the case under Section 133 of CrPC and after enquiry placed the matter before the Sub-divisional Officer, Baikunthpur along with his report for hearing and disposal in accordance with law. The Sub-divisional Officer, Baikunthpur, on the basis of the report dated 25/02/2019, passed order dated 25/02/2019 (Annexure P/2) holding that the act of respondent No. 1 falls under the category of nuisance as defined under Section 133 of CrPC and thereafter, directed respondent No. 1 to shift his shop to a non-residential area. The order dated 25/02/2019 (Annexure P/2) was challenged by respondent No. 1 in revision wherein the Additional Session Judge, Baikunthpur 3 set aside the order passed by the Sub-divisional Officer, Baikunthpur holding it to be bad in law as no preliminary order has been passed in terms of Section 131(1) of CrPC in view of the decision rendered by the Supreme Court in the matter of Avarchan v. C.V. Sreenivasan & Ors.1and allowed the revision by order impugned dated 08/07/2019 (Annexure P/1), which has been called in question by the petitioner.
3. Mr. Ashok Kumar Shukla, learned counsel for the petitioner, would submit that the impugned order (Annexure P/1) suffers from illegality and perversity and as such, it is liable to be set aside.
4. Per contra, Mr. Avinash Chand Sahu and Mr. Arjit Tiwari, learned counsels for respondents No. 1 and 2 respectively, would support the impugned order and submit that the instant petition deserves to be dismissed.
5. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.
6. Chapter X of the CrPC provides for maintenance of public order and tranquillity. Part 'A' provides for unlawful assemblies. Part 'B' provides for public nuisance. Proceedings under Section 133 are not intended to settle private disputes between different members of the public. They are in fact intended to protect the public as a whole 1 (1996) 7 SCC 71 4 against inconvenience. The proceedings under Section 133 are more in the nature of civil proceedings than of criminal nature. (See Suhelkhan Khudyarkhan and another v. State of Maharashtra and others2).
7. Section 133 of the CrPC provides a speedy and summery remedy in case of urgency where danger to public interest or public health is concerned. In all other cases, the parties should be referred to the remedy under the ordinary law. The idea is that if immediate steps are not taken, irreparable injury will be done. Extraordinary powers are meant to be exercised under extraordinary circumstances.
8. Section 133 of the CrPC provides for conditional order for removal of nuisance which states as under:-
"133. Conditional order for removal of nuisance.-
(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 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;
(b) to (f) xxx xxx xxx 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 2 (2009) 5 SCC 586 5
(ii) to (vi) xxx xxx xxx 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. Explanation- A "public place" includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes."
9. Section 134 (1) of the CrPC provides that the order shall, if practicable, be served on the person against whom it is made, in the manner herein provided for service of a summons. Section 135 CrPC provides that the person against whom such order is made shall perform, within the time and in the manner specified in the order, the act directed thereby or appear in accordance with such order and show cause against the same. Section 136 CrPC provides for consequences of his failing to do so. Section 137 CrPC provides procedure where evidence of public right is denied. Section 138 (1) CrPC provides 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 summons-case. Section 139 CrPC provides for power of Magistrate to direct local investigation and examination of an expert. Section 141 CrPC provides procedure on order being made absolute and consequences of disobedience which states as under:- 6
"141. Procedure on order being made absolute and consequences of disobedience.
-(1) When an order has been made absolute under section 136 or section 138, the Magistrate shall give notice of the same to the person against whom the order was made, and shall further require him to perform the act directed by the order within a time to be fixed in the notice, and inform him that, in case of disobedience, he will be liable to the penalty provided by section 188 of the Indian Penal Code (45 of 1860 ). (2) If such act is not performed within the time fixed, the Magistrate may cause it to be performed, and may recover the costs of performing it, either by the sale of any building, goods or other property removed by his order, or by the distress and sale of any other movable property of such person within or without such Magistrate' s local jurisdiction and if such other property is without such jurisdiction, the order shall authorise its attachment and sale when endorsed by the Magistrate within whose local jurisdiction the property to be attached is found.
(3) No suit shall lie in respect of anything done in good faith under this section."
Section 142 CrPC provides for injunction pending inquiry and Section 143 CrPC provides that Magistrate may prohibit repetition or continuance of public nuisance.
10. As such, complete mechanism has been prescribed from Section 133 to Section 143 of the CrPC for removal of public nuisance, which has to be initiated by passing a conditional order under Section 133(1) of the CrPC.
11. The Supreme Court in the matter of C.A. Avarachan v. C.V. Sreenivasan and another3 has clearly held that passing of preliminary order under Section 133 of the CrPC is must and non-compliance with the mandatory requirements for drawing up a preliminary order before proceedings under 3 (1996) 7 SCC 71 7 Section 133 of the CrPC vitiates the entire proceeding. It was observed by their Lordships as under:- "4. In our opinion the omission on the part of the Sub-Divisional Magistrate to draw up a preliminary order, which is a sine qua non for initiating proceedings under Section 133 of the Code of Criminal Procedure and without following the procedure provided for by Section 138 CrPC, the order made by the Sub-Divisional Magistrate on 13- 1-1988 is unsustainable and is vitiated. The High Court fell in error in not properly appreciating the effect of non-compliance with the mandatory requirements of drawing up a preliminary order before proceedings under Section 133 CrPC. Neither the order of the High Court nor that of the Sub- Divisional Magistrate can therefore be sustained."
12. Reverting to the facts of the present case in the light of the provisions contained in Section 133(1) of the CrPC and following the principle of law laid down by the Supreme Court in C.A. Avarachan (supra), it is quite vivid that in the instant case, the Sub-divisional Officer, Baikunthpur omitted to pass a conditional order for removal of nuisance under Section 133(1) of the CrPC and without passing a preliminary order, proceeded to enquire into the matter and passed final order directing removal of nuisance, which is in teeth of the provisions contained in Section 133(1) of the CrPC and contrary to the principle of law laid down by the Supreme Court in C.A. Avarachan (supra) and as such, learned Revisional Court is absolutely justified in setting aside the order passed by the Sub-divisional Officer, Baikunthpur.
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13. Accordingly, the impugned order dated 08/07/2019 (Annexure P/1) passed by the Additional Sessions Judge (FTC), Baikunthpur, setting aside the order dated 25/02/2019 (Annexure P/2) passed by the Sub-divisional Officer, Baikunthpur, is hereby affirmed. However, it would be appropriate to remit the matter to the Sub-divisional Officer, Baikunthpur for hearing and disposal in accordance with law, who will decide it expeditiously.
14. Accordingly, the instant petition stands disposed of.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay K. Agrawal)
Judge Judge
Harneet