Manager, Tipuk Tea Estate vs Ram Prasad Rai and Others

I.A. Ansari, J.—Pursuant to a complaint made by the Villagers of Village No. 1 and No. 2 of Rangajan Village alleging, inter alia, that Tipuk Tea Estate had erected two iron gates on the public road obstructing thereby the villages of the said two villages from using the said road, which had been functioning as a link road between the said two villages, on the one hand, and the National Highway, on the other, and also based on a police report submitted in this regard, learned Additional District Magistrate, Tinsukia, passed an order, on 26.06.1996, in Case No. 33 of 1996, drawing proceeding u/s 133 of the Code of Criminal Procedure (hereinafter referred to as "the Code") and directed the Manager of the said tea estate to remove the gates ''so erected'' or to show cause as to why this conditional order be not made absolute.

The management of the said tea estate, then, filed their reply to the show cause notice aforementioned denying existence of the public road, their case being, in brief, thus: Non-existent right over the private path of the said tea estate was being sought to be raised by the complainants, for, no gate, as alleged, has been erected on any public path by the management of the said tea estate; what the management has done is to erect a barrier on their private road. The whole complaint has been fabricated by the first party No. 1, who sells illicit liquor within the said tea estate. The management has already provided its residents free passage through its tea estate and the villagers of the villages concerned have been using the road so provided by the management on the request of the President of Rangajan Gaon Panchayat.

After the reply, so filed, by the second party, learned Additional District Magistrate, Tinsukia, held, on 25.11.1996, a local investigation in the presence of both the parties, recorded the statements of two witnesses and also noted his findings to the effect that he had found that the said tea estate had constructed iron bars obstructing the entry of vehicles. By the order, dated 25.11.1996, the learned Additional District Magistrate, Tinsukia, also fixed the proceeding for hearing on 10.12.1996. It is this order, which stands impugned in the present revision, on the ground that holding of the local investigation, recording of the statements of the witnesses and the findings of the learned Additional District Magistrate, Tinsukia, as indicated hereinbefore, were all contrary to law and the scheme of Section 137 read with Section 139 of the Code.

I have heard Mr. G.N. Sahewalla, learned Senior Counsel, assisted by Mr. P. Baruah, learned Counsel for the Petitioner. None has, however, appeared on behalf of the opposite party.

In order to appreciate the questions involved in the present revision, it is pertinent to allude to, and briefly point out, the various conditions and circumstances under which proceedings u/s 133 of the Code can be initiated. A bare reading of Section 133 will show that it lays down 6 (six) different conditions and circumstances enabling a District or a Sub-Divisional or an Executive Magistrate to draw proceedings under the said section. Section 133(1)(a) refers to removal of unlawful obstruction or nuisance from any public place or from any way, river or channel, which is or may be lawfully used by the public. Section 133(1)(b) empowers the magistrates aforementioned to prohibit or regulate the conduct of any trade or occupation, which is injurious to the health or physical comfort of the community or to remove any goods or merchandise, which is injurious to health and physical comfort of the community, or to regulate the keeping of such goods or merchandise. Section 133(1)(c) relates to stopping construction of, or preventing from construction of, any building or disposal of any substance, which is likely to occasion conflagration or explosion. Section 133(1)(d) deals with any building, tent or structure or any tree, which is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by. Section 133(1)(e) refers to any tank, well or excavation adjacent to any public way or public place, which needs to be fenced to avert danger arising to the public, and Section 133(1)(f) vests the official aforementioned with powers to direct any dangerous animal to be destroyed, confined or otherwise disposed of.

Section 133 of the Code is, thus, attracted only under specified circumstances. Every conceivable nuisance is not amenable to Section 133 unless the same satisfies one or more of the circumstances enumerated in Section 133. In other words, Section 133 deals with public nuisance and not private nuisance, though what constitutes nuisance may be common to both the classes; whereas public nuisance, under the conditions contained in Section 133(1), is liable to actions u/s 133, remedy for private nuisance lies in civil suits.

If a Magistrate finds that any of the conditions laid down in Section 133(1)(a) to Section 133(1)(f) is satisfied, he may, u/s 133(1), make a conditional order consistent with the facts of a given case, e.g., in the case of any obstruction or nuisance being caused in any public place, way, river or channel, which is or may be lawfully used by public, a Magistrate may, while acting u/s 133(1), direct the person, who causes such obstruction or nuisance, to remove such obstruction or nuisance or if he (such person, who causes such obstruction or nuisance) objects to do so, then, to appear before such Magistrate and show cause as to why such conditional order be not made absolute.

Section 135 of the Code makes it obligatory on the part of such person against whom directions have been given u/s 133(1) to either perform the act directed by the Magistrate or appear in accordance with such order and show cause against the same. A person who, on receiving a direction given u/s 133(1), does not perform the act so directed and does not also appear before the Magistrate and show cause is liable to punishment u/s 188 of the Indian Penal Code.

Section 137(1) of the Code provides that when a person, against whom a direction u/s 133 is given for the purpose of preventing any obstruction, nuisance or danger to the public in the use of any way, river, channel or place, appears before the Magistrate, he shall be asked pointedly by the Magistrate 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 enquire into the matter.

Section 137(2) of the Code provides that if by the enquiry held under Sub-section (1) of Section 137, the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceeding until the matter of existence of such right has been decided by a competent Court, but if such Magistrate finds that there is no such evidence, then, he shall proceed as laid down in Section 138.

Section 138 provides that if the person against whom an order u/s 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons case and, on the evidence being concluded, if the Magistrate is satisfied that the conditional order made by him earlier is reasonable and proper, the same shall be made absolute with or without modification and if the Magistrate is not so satisfied, no further proceedings shall be taken in the case.

A combined reading of the provisions contained in Sections 137 and 138 makes it abundantly clear that if the person against whom any conditional order is made appears before the Magistrate and denies the existence of any public right in respect of anyplace, way, river or channel, the Magistrate shall hold an inquiry and if such inquiry reveals that there is any reliable evidence in support of such denial, the Magistrate shall keep the proceedings stayed until a competent Court decides the matter; but if the inquiry reveals that no such reliable evidence exists, which supports the plea of denial, then, the Magistrate shall proceed as laid down in Section 138. In other words, if the person, who has been served with a conditional order, succeeds in showing that he has reliable evidence to support his plea of denial, the Magistrate shall not proceed with the matter; but if such a person fails to produce such reliable evidence, then, this by itself is not sufficient to make a conditional order absolute; what is to be done by a Magistrate in a case, where such plea of denial is not supported by reliable evidence, is that the Magistrate shall proceed with the matter and take evidence as in a summons-case and it is only after recording evidence as in a summons case that a Magistrate can, if satisfied, make his earlier conditional order absolute with or without modifications.

Coupled with the above, it is also imperative to note that Section 139 of the Code empowers a Magistrate, for the purpose of an enquiry u/s 137 or Section 138, to direct a local investigation to be made by such person as he thinks fit or to summon and examine an expert.

Section 140 of the Code further lays down that while directing a local investigation by a person u/s 139, the Magistrate may (a) furnish such person with such written instruction as may seem necessary for his guidance; (b) declare by whom the whole or any part of the necessary expenses of the local investigation shall be paid and that the report of such person may be read as evidence in the case and where the Magistrate summons and examines an expert u/s 139, the Magistrate may direct by whom the costs of such summoning and examination shall be paid.

A careful reading of Sections 139 and 140 of the Code clearly shows that the local investigation can be held u/s 137 as well as u/s 138; but such a local investigation can be held or carried out by a person other than the Magistrate, who is in seisin of the proceeding u/s 133. In other words, a Magistrate, who is in seisin of the proceeding u/s 133, cannot hold or carry on the local investigation, for, if the Magistrate himself holds a local investigation, he becomes a witness and renders himself disqualified from deciding the proceeding on merit. The local investigation, if held by a Magistrate, who is in seisin of the proceeding u/s 133, will be, thus, without jurisdiction and void. The findings recorded in such a local investigation shall, therefore, be treated as honest.

In the case at hand, I am amazed that the learned Magistrate completely misconceived the proceedings inasmuch as he has, instead of directing a local investigation to be carried out in terms of Section 139, held a local investigation himself for the purpose of determining as to whether there is any reliable evidence, in terms of Section 137, as regards the denial of the existence of public right.

If the learned Magistrate was of the view that a local investigation was required to be made for the purpose of enabling him to determine whether there is any reliable evidence in support of the denial of the existence of public right, he ought to have directed, in terms of Section 139, to hold a local investigation.

What emerges from the above discussion is that in the case at hand, contrary to the provisions of the law contained in Sections 139 and 140, the learned Additional District Magistrate, Tinsukia, held a local investigation by visiting the site and recording the statements of two witnesses. Since the visit to the site by the learned Additional District Magistrate, Tinsukia, as well as the recording of statements of the two witnesses were contrary to the provisions of Section 139 read with Section 140, the same cannot be allowed to stand good on record. In consequence thereof, the impugned order, dated 25.11.96, needs to be interfered with.

Considering, therefore, the matter in its entirety and in the interest of justice, the impugned order, dated 25.11.96, is hereby set aside and the learned Court below is hereby directed to hold an enquiry in terms of Section 137 of the Code and if it finds that there is reliable evidence in support of the denial of the existence of public right over the path, in dispute, he shall stay the proceeding until the existence of such a right is decided by a competent Court; but if it finds that there is no such reliable evidence, then, it has to record, in terms of Section 138, the evidence in the manner as is done in summons case and, then make, the final order.

In the result and for the reasons discussed above, the revision is allowed, the impugned order including the said two statements of the witnesses as well as the findings of the learned Magistrate shall accordingly stand set aside and shall be treated as non est. The proceeding is hereby remanded to the Court below with direction to proceed from the stage, where the proceeding was left and dispose of the same in accordance with law.

In view of the fact that the proceeding has been pending for an unduly long time, the Court below shall, on receiving the record of the case, proceed with the matter expeditiously and dispose of the same at its earliest without allowing unnecessary adjournments.

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