Harnarayain and Others vs Bhagirath Jatava and Another

D.K. Paliwal, J.—This petition has been preferred u/s 482 of Cr.P.C. for quashing the proceedings u/s 133 of Cr.P.C., before the SDM Bhind in Case No. 32/08 X 133. The brief facts of the petition are that the respondent No. 1 filed an application u/s 133 of Cr.P.C. before the SDM, Bhind. It is submitted by the learned counsel for the petitioners that the house of the petitioners and respondent No. 1 are nearby and in between them there is empty place. The door of the respondent No. 1 house is on the west side and door of the petitioners is towards the north side. It is further stated that in the west side, there is wall and hand pump and there is a way to reach. It is further stated that Harnarayain has purchased the open land from other person and constructed the wall, blocking the way, therefore, it is prayed that the obstruction may be removed and the way should be opened. The report from the Police Station and Additional Tahsildar was sought and was filed and learned Magistrate has passed an order for removal of the wall forthwith. The same was challenged before the ASJ, Bhind by preferring a Criminal Revision No. 46/2008 and the revision has been dismissed vide order dated 01.05.2008. Being aggrieved of the same, this petition has been preferred.

Learned counsel for the petitioners submits that from the registration of the case u/s 133 of Cr.P.C. presupposed the public nuisance while in present case there is no public nuisance and it is private land. The disputed land is not public way, the said land was owned by Hom Singh and the petitioner purchased the same from Hom Singh and constructed there on, which is very old. The respondent No. 1 has no right to get the way on the said land. It was the duty of the trial Court to decide the case after taking evidence of both the parties. Learned SDM has erred in passing the order u/s 142 of Cr.P.C. and the learned First ASJ has also erred in confirming the same, therefore, it is prayed that the proceedings u/s 133 of Cr.P.C. before the SDM, Bhind be quashed.

Learned counsel for the respondent No. 1 has submitted that the petitioners have constructed the wall in a public way and obstructed their way, which is used by them for since last 34 years. Learned SDM has not rightly directed the respondent No. 1 to remove the wall.

The Section 133 of Cr.P.C., reads as under:-

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 lawful 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 on 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 conflagration 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 possession 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 merchandises, 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 bare perusal of the provision makes it clear that for invoking the provision of Section 133, Magistrate must have to be satisfied that:-

(i) It is public nuisance i.e. number of persons injuriously affected is so considerable that they may reasonably be regarded as public or portion of it.

(ii) It is not private dispute between different members of public for which the proper forum is the civil suit.

(iii) It is the case of great emergency of imminent danger to public interest.

From the averments made in the complaint by the respondent No. 1, it is evident that this application was filed only by the respondent No. 1 and no other persons had joined, however, as per the averments made in the complaint, petitioners Harnarayain has purchased the land situated on the western side where he has constructed a wall.

Thus, from the averments of the complaint filed by the respondent No. 1 it becomes crystal clear that the dispute between the respondent No. 1 and petitioners is a private dispute, therefore, the so called nuisance is a private nuisance and not a public nuisance and the remedy for private nuisance is a Civil Suit. A public nuisance is something which is offensive to public, an inconvenience, discomfort or hurt, annoying or endangering the safety or whole community in general.

In view of the above analysis and taking into account that the dispute appears to be private dispute and remedy for which lies in Civil Court, learned SDM has erred in entertaining the application filed by the respondent No. 1 under the provision of Section 133 of Cr.P.C. The continuation of proceedings before the SDM appears to be an abuse of the process of Court, therefore, this petition deserves to be allowed. Consequently, petition is allowed, proceedings pending in the case No. 32/08 X 133 in the Court of SDM, Bhind is hereby quashed.