Madhya Pradesh High Court
Ramgopal vs Deshraj on 2 January, 2017
1
MCRC.7651/2015
Ramgopal & anr.
Vs.
Deshraj & anr.
02/01/2017
Shri B.D.Jain, counsel for the applicants.
None for the respondents.
The applicants, in this petition filed under Section 482 of CrPC, have challenged the propriety of the order dated 06/07/2015 passed by Additional Sessions Judge, Ambah, District Morena, in Criminal Revision No.172/2014 by which the Criminal Revision filed by the applicants has been rejected.
The necessary facts for the disposal of this petition are that an application under Section 133 of CrPC was filed by respondent no.1 against the applicants and the respondent no.2 alleging that the applicants and respondent no.2 have raised an illegal construction on the "public way" which is used by the respondent no.1 as well as the general public. The Sub-Divisional Magistrate, Ambah, District-Morena called the report from the Revenue Inspector and Patwari. A joint report was submitted by the Revenue Inspector and Patwari stating specifically that the applicants and respondent no.2, by raising a 7 feet high wall, have obstructed the "public way". It is also apparent from the order that an application under Section 91 of CrPC was filed stating that the respondent no.1 be directed to produce his sale deed.
Considering the report submitted by the 2 MCRC.7651/2015 Revenue Inspector and Patwari, the SDM, Ambah, District-Morena, passed an order on 15/09/2014 directing the applicants and the respondent no.2 to immediately remove the obstruction raised by them on the "public way".
When the applicants and respondent no.2, in compliance of the order dated 15/09/2014, did not remove the obstruction, the SDM, Tahsil-Ambah, District-Morena passed an order dated 05/12/2014 (this order has not been placed by the applicants on record) directing the police authorities to remove the illegal construction raised by the applicants and respondent no.2 on the public way. Order dated 05/12/2014 was challenged by the applicants by filing a Criminal Revision No.172/2014. While deciding the said criminal revision, the Revisional Court specifically held that the order dated 05/12/2014 is not a final order but it is of interlocutory in nature as the same has been filed for the compliance of the order dated 15/09/2014.
It is an admitted fact that the applicants did not challenge the order dated 15/09/2014. From the memo of application, it appears that an application under Section 91 of CrPC before the Court of SDM, Tahsil-Ambah, District-Morena was filed making a prayer that the respondent no.1 be directed to produce the sale deed so that it can be ascertained that whether the place which is alleged to be a "public way" is in fact a "public place" or is a 3 MCRC.7651/2015 "private place". However, there is no pleading in the memo of application that the applicants had ever filed any objection before the Court of SDM, Tahsil- Ambah, District-Morena with regard to the nature of land.
It is submitted by the counsel for the applicant that as he has already filed a civil suit for declaration of his right of his title, therefore, the proceedings may be quashed merely on the said ground.
Section 133 of CrPC reads 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; 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 4 MCRC.7651/2015 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 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.
5 MCRC.7651/2015(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."
From a plain reading of Section 133 of CrPC, it is clear that if the applicants object to the order passed by the Magistrate under Section 133(1) of CrPC, then the concerning Magistrate can issue a show cause notice as to why the order passed under Section 133(1) be not made absolute.
Section 137 of CrPC reads 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 6 MCRC.7651/2015 permitted to make any such denial."
When an objection is raised by the person against whom the order has been issued denying the existence of any public right in respect of the way, river, channel or place, then the Magistrate is required to proceed under Section 138 of CrPC.
In the entire pleadings before this Court, there is not a single averment to the effect that an objection as to the existence of the "public right"
was ever raised by the applicants before the Court of SDM. An application under Section 91 of CrPC seeking a direction to the respondent no.1 to produce his sale deed, can not be said to be an objection denying the existence of a "public place".
Further the applicants did not challenge the order dated 15/09/2014 by filing a revision. Undisputedly, the order dated 15/09/2014 had attained finality. Although this Court in exercise of powers under Section 482 of CrPC could have seen the entire proceedings of the Court of SDM, Tahsil- Ambah, District-Morena to find out that whether the order dated 15/09/2014 has been passed in accordance with law or not but for the reasons best known to the applicants themselves, they have chosen not to place on record the application which was filed under Section 91 of Cr.P.C. before the Court of SDM, Tahsil-Ambah, District-Morena. Further they have chosen not to place on record the copy of the joint report submitted by the Revenue 7 MCRC.7651/2015 Inspector and Patwari which was to the effect that the land in question is a "Public Way". There is no averment in the memo of application to the effect that any objection was ever taken by the applicants before the Court of SDM denying the existence of a "public way".
The counsel for the applicants has relied on judgment of this Court passed in the case of Kunoo Vs. Sewalal and anr. reported in 2006 1 JLJ 191.
The facts of the case are distinguishable. The undisputed fact in that case was that the land in question belonged to the private land and, therefore, it was held that powers under Section 133 of CrPC can not be exercised in respect of a private land.
In the present case, the only submissions made by the applicants in this petition is that he has filed a suit for declaration of title. Even the status of civil suit is not made available. No ordersheet of the civil suit has been filed. No objection has been filed before the Court of SDM to the effect that the land on which he has raised construction is not a "public way" but it is a "private land". Similarly, by filing an application under Section 91 of CrPC seeking a direction to the respondent no.1 to file his sale deed by no stretch of imagination it can be treated as an objection with regard to the nature of the "public way" involved in the present case was ever raised.
Thus, this Court is of the considered view that 8 MCRC.7651/2015 even before this Court, the applicants have failed to make out a prima facie case for any further direction to the Court of SDM,Tahsil-Amba, District- Morena to follow up the procedure as laid down under Section 133 to Section 143 of CrPC.
Accordingly, this application fails and it is hereby dismissed.
(G.S.Ahluwalia)
AKS Judge