Mukhtar Ahmad Mir vs Ghulam Rasool Mir

Mohammad Yaqoob Mir, J.—Respondent despite service has not chosen to appear. Heard learned counsel for the petitioner in absence of

Respondent. Petitioner had filed an application before Executive Magistrate 1st Class (Tehsildar North), Srinagar projecting therein that the

respondent has planted poplar trees near the divisional line of his residential house which has become a source of nuisance as during winds,

hailstorm, heavy rains and earthquake, there is every apprehension of fall of the trees which can damage the lives and property of the applicant

(petitioner herein). In addition thereto, in autumn season, leaves of the trees fall in the lawns of the applicant which breed mosquitoes, cockroach,

cut-worms etc. the pollen of said poplar trees is also a cause of concern being a health hazard. The Executive Magistrate 1st Class had called

report from the field staff and finally passed a conditional order in terms of Section 133 Cr.P.C. on 27.09.2013 whereunder respondent had been

asked to remove/cut down the trees within 20 days positively. The respondent had been given liberty to file objections or seek modification of the

order and also to file objections as to why the said conditional order shall not be made absolute. Next date had been fixed on 17.10.2013.

The order dated 27.09.2013 passed by the Executive Magistrate was challenged by medium of revision petition before the Court of learned

Sessions Judge, Srinagar which came to be assigned to the Court of 1st Additional Sessions Judge, Srinagar. The revision petition has been

allowed and the order set aside vide order dated 30.11.2013. Aggrieved thereof, instant petition seeking quashment of the said order has been

filed.

Learned counsel for the petitioner would submit that the order passed by the Executive Magistrate 1st Class is a conditional order subject to

objections and modification, therefore, an interlocutory order against which remedy of revision is barred under Section 435(4-a) of Cr.P.C. This

contention was raised but not accepted, therefore, order of revisional court is bad in the eye of law.

The contention raised is bereft of any legal sanctity as the revisional court has discussed all the aspects of the case and in the process has

referred to three judgments rendered by this Court reported in 1987 S.L.J. 138, 1988 S.L.J. 23 and 2005 (1) S.L.J. 131, wherein it has been

held that the object of Section 133 Cr.P.C. is to protect the public and not to settle private dispute. To attract the provisions of Section 133

Cr.P.C., health, safety and convenience of the public at large should be involved. Violation of right of an individual does not attract provisions of

Section 133 of the Code of Criminal Procedure.

Section 133 Cr.P.C. applies where there is public nuisance not the private nuisance. In the order of Executive Magistrate, it is specifically

mentioned that it is the applicant (petitioner herein) who is being affected by the plantation of trees and faces the difficulty of fall of trees and its

leaves, therefore, cause of nuisance. Such type of nuisance at the most can be said to be a private nuisance for which some other remedy is

available. Executive Magistrate though has passed a conditional order but he had no jurisdiction to entertain such application as the nuisance

projected does not fall within the ambit of Section 133 of Cr.P.C. as not being public nuisance. Learned revisional court while referring to

judgments of this Court has rightly concluded that the dispute is private and can be said to be a private nuisance, which by no stretch of legal

imagination can be termed to be a public nuisance so as to attract the applicability of provisions of Section 133 of Cr.P.C. The order passed by

the Executive Magistrate being as such, without jurisdiction, therefore, bar of Section 435(4-a) Cr.P.C. was not attracted.

The power under Section 561-A Cr.P.C. is to be exercised in exceptional cases so as to avoid abuse of process of the court and to avoid

miscarriage of justice. This power has to be exercised with circumspection. In the instant case abuse of process of law is not noticeable. Revisional

court has rightly exercised its power, therefore, no interference is warranted. Petition, as such, dismissed. It shall be open for the petitioner to have

recourse to other available remedial measures so as to seek redressal of his grievances.

Dismissal of this petition or the order as passed by the revisional court shall not, in any manner, be a bar for the petitioner in availing the

appropriate available remedy under other relevant laws. Record of the revisional court be sent back along with copy of this order.