Document Fragment View

Matching Fragments

(3) No suit shall he in respect of anything done in good faith by, a Magistrate under this section

143. Magistrate may prohibit repetition or continuance of public nuisance.

A District Magistrate or sub-divisional Magistrate, or any other Executive Magistrate empowered by the State Government or the District Magistrate in this behalf, may order any person not to repeat or continue a public nuisance, as defined in the Indian Penal Code (45 of 1860), or any special or local law.

8. From a perusal of Section 133 and the subsequent sections of the said Code, it is made very clear that under the said provisions, the Magistrate has been given sufficient power to deal with removal of obstruction on public road for dealing with public nuisances. The said power can be exercised either on receipt of a police report or on other information, and arises under the six circumstances enumerated in Section 133 and the Magistrate has been given power under the said Section 133 to pass a conditional order. Under the said Section, any unlawful obstruction or nuisance could be removed from any public place or from anywhere which is or may be lawfully used by the public. The said conditional order can be served on the person against whom it is made, as if it were a summon. This is provided under Section 134. On the service being effected, the person concerned may carry out the order, in which case the proceedings will come to an end under Section 135(a). But if the person against whom the order is made does not carry out the order, he has to show cause against the order or apply to the Magistrate in order to contend that the order which has been passed is not reasonable and proper. This is provided under Section 135(b). But, despite the passing of the conditional order, if the person, against whom the order is passed, does not comply with the same and he fails to appear before the Magistrate, the order is made absolute and the person may also be liable to the penalty prescribed under Section 188, IPC. This is provided in Section 136. But, if upon showing cause, the Magistrate finds that the cause shown is not satisfactory, the order is made absolute under Section 138 of the Code. In the enquiry which is to be made before the Magistrate in respect of an order under Section 133 and in a case when a person appears before him, the Magistrate may direct a local investigation or summon and examine any expert. This is provided under Sections 139 and 140. If the person concerned disputes the existence of any public right on the place or the road in question, the Magistrate will hold a preliminary enquiry and if he finds that the contention which is raised by the person has some substance, the question will be left to be determined by a Civil Court. But if there is no substance in the contention, the enquiry will proceed under Section 137. However, where the order is made absolute under Section 136 or Section 138, the person against whom the order is made shall be asked to carry out the order within a specified time. But, however, if he fails to carry it out, he can be prosecuted under section 188 IPC. This is provided under Section 141(1) of the Code. The Magistrate also can carry out the said order and recover the cost from the defaulter. This is provided under Section 141(2). In case of imminent danger or injury of a serious kind, the Magistrate has a power to forthwith issue an injunction against a person, who may commit the mischief. This is provided under Section 142.

8. On a perusal of the aforesaid provisions, it is clear that starting from Section 133, detailed and adequate provisions have been made right up to Section 143 under the said Code and the aforesaid gamut of proceedings constitutes a complete Code for removal of encroachment or obstruction from the public land which leads to public inconvenience or public nuisance.

9. On the question what constitutes public nuisance under Section 133 of the Code of Criminal Procedure, the Honble Supreme Court has explained the concept of public nuisance very broadly as to take within its fold the nuisance caused by obstruction and encroachment.

10. In the case of Vasanth Manga Nikumba & Others v. Baburao Bhikanna Naidu, reported in 1995 Supp (4) SCC 54 the Supreme Court held that nuisance is an inconvenience which materially interferes with the ordinary physical comfort of human existence. The learned Judges held that it is not capable of precise definition, but as defined under Section 268 IPC, public nuisance is an offence against public either by doing a thing, which tends to the annoyance of the whole community in general or by neglect to do anything which the common good requires. The learned Judges clarified it by saying that public nuisance is an act of omission which causes any common injury, danger and annoyance to the public or to the people in general who dwell or occupy the property in the vicinity. It causes some injury or obstruction to the person who may have occasion to use public right. In the instant case, the allegation is one of obstruction by encroachment to the use of the public road by the members of the public. In view of such alleged encroachment very project beneficial to public cannot be undertaken. Such allegations obviously bring the matter within the expression of unlawful obstruction and nuisance to the members of the public. However in Vasanth Manga (supra) it has been held that the proceedings under Section 133 are not intended to settle private disputes or settle question of title. (See para-3 of the judgment.)

11. In a subsequent judgment in the case of Municipal Council v. Shri Vardichan reported in 1980 (4) SCC 162, the learned Judges of the Supreme Court point out that wherever there is public nuisance the guns of Section 133 of the Code of Criminal Procedure go into action. (See para-9 at page 169 of the report). The learned Judges held that the power may be discretionary, but the power given to the Magistrate under Section 133 of the Code is a public duty to the members of the public who are victims of the nuisance, and so the Magistrate shall exercise it when the jurisdictional facts are present. The learned Judges reiterated the principles by saying that discretion becomes a duty when the beneficiary brings home the circumstances for its benign exercise. (See para-9 of the judgment). In paragraph-13, the learned Judges further said that Section 133 is a categoric provision, though it reads discretionary. The learned Judges held that judicial discretion, when facts for its exercise are present, has a mandatory import. The learned Judges held that when the Magistrate considers that such unlawful obstruction or nuisance should be removed from any public place, which may be legitimately used by the public, he shall act. The learned Judges further added that this judicial power shall, passing through the procedural barrel, fire upon the obstruction or nuisance, triggered by the jurisdictional facts. The learned Judges also held that this is a public duty implicit in the public power to be exercised on behalf of the public and pursuant to a public proceeding. (See para-13 at page 170 of the report)