Himachal Pradesh High Court
Roop Ram & Others vs Mohan Singh & Another on 28 June, 2017
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr.MMO No. 103 of 2012.
Date of Decision: 28th June, 2017.
.
Roop Ram & others .....Petitioner.
Versus
Mohan Singh & another ....Respondents.
Coram
The Hon'ble Mr. Justice Sureshwar Thakur,
Judge.
Whether approved for reporting? Yes.
For the petitioners: Mr. P.S. Goverdhan,
Advocate.
For the respondents : Mr. Vinod Thakur,
Advocate.
Sureshwar Thakur, Judge (Oral)
The instant petition is directed against the orders pronounced by the learned Sub Divisional Magistrate, Solan in Case No. 121/4 of 2007, wherein an averment is embodied with respect to the petitioners herein infracting the provisions of Section 133 (a) of the Code of Criminal Procedure (hereinafter ::: Downloaded on - 05/07/2017 23:58:04 :::HCHP 2 referred to as the Cr.P.C.), whereupon he pronounced an order purportedly under Section 138(2) of the Cr.P.C., "upon" the respondents/petitioners herein .
whereby the latter(s) stood directed to remove obstruction(s) purportedly raised by them upon the relevant passage/path existing upon khasra No. 284/270 located at Village Khair, Tehsil and District Solan, H.P., besides the instant petition is directed against the orders recorded by the learned Additional Sessions Judge in Revision Petition No. 17-S/10 of 2010 whereby, he recorded an order in affirmation to the order(s) pronounced by the learned Sub Divisional Magistrate, Solan.
2. Upon the aforesaid complaint standing instituted before the learned Deputy Commissioner Solan, it stood assigned to the Sub Divisional Magistrate Solan, thereupon, the latter for ascertaining the veracity of the allegations constituted therein, hence proceeded to elicit a report from the Naib Tehsildar, Solan. On receipt of a report from the Naib Tehsildar, Solan, the Sub Divisional Magistrate, Solan, on 28.12.2006 proceeded to issue notice(s) ::: Downloaded on - 05/07/2017 23:58:04 :::HCHP 3 upon the petitioners herein/respondents, whereupon, they recorded their appearance before the Sub Divisional Magistrate Solan, whereat, they contested .
the veracity of allegations constituted in the complaint with respect to the existence of any public path, obviously also they denied the fact of theirs barricading it, for precluding its user by the aggrieved/complainant(s). The Sub Divisional Magistrate, Solan, thereafter proceeded to try the complaint besides on the relevant issue(s), he elicited adduction of evidence thereon by both the aggrieved complainant(s) and by the respondents/petitioners herein, whereafter, he on 22.09.2010 proceeded to within the ambit of Section 138(2) of the Cr.P.C., record the impugned order. Order whereof, stood affirmed by the learned Additional Sessions Judge, Solan on 16.04.2012.
3. For appreciating the entire controversy raised before this Court, it is imperative to extract the apt provisions of Sections 133 (1)(a) of the Cr.P.C.
"133. Conditional order for removal of nuisance.--(1) Whenever a District Magistrate or a Sub-::: Downloaded on - 05/07/2017 23:58:04 :::HCHP 4
divisional Magistrate or any other Executive Magistrate specially empowered in this of 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-
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(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 goods or merchandise, is injurious to the 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 configuration 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, 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 ::: Downloaded on - 05/07/2017 23:58:04 :::HCHP 5 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 or 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.""
A deep circumspect reading thereof makes a vivid display that the SDM, concerned "on" receiving any apposite report as he did evidently receive "at" the stage when he recorded an order on 28.12.2006, whereupon he directed issuance of summonses/notices upon respondents/petitioners herein, his thereat" standing also statutorily enjoined to record a conditional order upon the purported obstructer(s), whereby they stood conditionally directed to remove any obstruction(s) or barricades, if ::: Downloaded on - 05/07/2017 23:58:04 :::HCHP 6 any, erected by them "upon" the relevant path, whereby the aggrieved stood purportedly precluded from using "it" as a public path. However, the Sub .
Divisional Magistrate, Solan did not within the ambit of the relevant provisions of Section 133 of the Cr.P.C., make any conditional order thereat, whereby, the petitioners herein/respondents stood conditionally directed to remove the purported obstructions raised/erected by themupon the purported public path, whereupon, the aggrieved stood precluded to use "it" as a public path. The absence of the Sub Divisional Magistrate, Solan "to not" at the relevant stage within the ambit of Section 133 of the Cr.P.C., "make any conditional order" upon the purported obstructer(s) of the purported public path "despite"
his standing thereat seized with an apposite report, holds all the ill consequences/effects qua his not properly applying his mind either to the inquiry report submitted to him by the Naib Tehsildar concerned nor obviously his assigning any reasons, with respect to its making or not making any echoings for succoring or not succoring the espousal(s) of the complainants, ::: Downloaded on - 05/07/2017 23:58:04 :::HCHP 7 whereupon his ordering for issuance of notices upon the petitioners herein/respondents, begets an alike taint, corollary whereof, is that a gross transgression .
of the mandate of Section 133 of the Cr.P.C., has imminently occurred, whereupon, the issuance of notices upon the petitioners herein/respondents is rendered vitiated. Prominently, also the SDM, Solan was hence barred to launch in consonance with the relevant provisions r occurring subsequent thereto "any" proceedings against the petitioners herein nor the order(s) purportedly made by him under Section 138(2) of the Cr.P.C., enjoy any jurisdictional vigour.
Importantly, the reason for rearing the aforesaid inference is garnered from the statutory of the SDM, concerned being enjoined to mete compliance with the preceding therewith occurring statutorily mandated indispensable sine qua none, as embodied in Section 133 of the Cr.P.C., in compliance whereof, he stood obliged to make the relevant conditional order upon the petitioners herein, whereupon, alone he stood facilitated to exercise jurisdiction vested him under Sections 137 and 138 of the Cr.P.C, "whereas"
::: Downloaded on - 05/07/2017 23:58:04 :::HCHP 8his evidently making the aforesaid omissions, renders his order(s) to beget a pervasive taint of illegality. Provisions of Sections 137 and 138 of the Cr.P.C., read as under:-
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"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.
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.::: Downloaded on - 05/07/2017 23:58:04 :::HCHP 9
(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.
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(3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case."
A reading of mandate of the provisions cast in Sections 137 an 138 of the Cr.P.C., make candid bespeaking(s) with respect to the jurisdiction foisted therein upon the Magistrate concerned being exercisable by him "only when" preceding therewith the SDM concerned proceeds to record an conditional order within the domain of Section 133 of the Cr.P.C.
However, as aforestated with the SDM concerned evidently infracting the mandate of Section 133 of the Cr.P.C., infraction whereof is imminent from the trite factum of his omitting to record the relevant conditional order upon the petitioners herein/respondents, whereby, they stood directed to conditionally remove the purported obstruction(s) erected by them upon the purported public path, whereby the aggrieved complainant(s) stood ::: Downloaded on - 05/07/2017 23:58:04 :::HCHP 10 purportedly prevented to make user of a purported public path, non recording whereof, stands concluded hereinabove to be also vitiating the order, whereby, .
the petitioner herein/respondents stood summoned, ensuing sequel whereof is that the proceeding(s) subsequent to the issuance of summons(es) upon the respondents/petitioners herein besides initiation of proceedings against them by the SDM concerned "by his" invoking the mandate of Sections 137 and 138 of the Cr.P.C., stand vitiated in their entirety.
3. For the foregoing reasons, the orders pronounced by the Sub Divisional Magistrate, Solan in Case No.121/4 of 2007 is bereft of jurisdictional vigour also the order in affirmation thereto pronounced by the learned Additional Sessions Judge, Solan in Revision Petition No. 17-S/10- of 2010 also suffers from an alike infirmity. Consequently, the instant petition is allowed and both the orders impugned hereat are quashed ad set aside. The case is remanded to the Sub Divisional Magistrate, Solan for enabling him to after application of mind in accordance with law hence record orders afresh upon ::: Downloaded on - 05/07/2017 23:58:04 :::HCHP 11 complaint, borne on Ex. P-1. The Sub Divisional Magistrate concerned is also directed to within three months from today conclude all the proceedings with .
respect to the apposite complaint. The SDM, concerned is warned to be careful in future. Copy of this order be forthwith forwarded to the Deputy Commissioner, Solan and to the S.D.M., concerned.
All pending applications also stand disposed of.
Records be sent back forthwith to the quarter(s) concerned.
(Sureshwar Thakur)
28 th
June, 2017 Judge.
(jai)
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