Rafeeq Ahmad Siddiqui vs Vijay Singh Pundeer & Others

Sudhanshu Dhulia, J

The petitioner who is a member of Muslim community has made a complaint before the Sub-Divisional Magistrate, Dehradun under Section 133 of the Criminal Procedure Code, 1973 stating that an unlawful obstruction and nuisance is being created at the hands of private respondent nos. 1 and 2, inasmuch as, they have raised a wall outside the graveyard which makes it difficult for the members of Muslim community to approach the graveyard. The Sub-Divisional Magistrate, Dehradun after hearing both the parties vide its order dated 30.04.2011 has come to the conclusion that the land belongs to "Gram Samaj", and the encroachment be removed. Against the said order, the private respondent nos. 1 and 2 moved a revision before the Chief Revenue Commissioner, before whom a plea was raised by the private respondents that between the same parties a civil dispute is pending. The Chief Revenue Commissioner taking this fact into consideration set aside the order dated 30.04.2011 passed by the Sub-Divisional Magistrate, Dehradun vide its order dated 21.05.2011. Aggrieved, the petitioner has filed the present writ petition before this Court.

It appears that the Chief Revenue Commissioner has not gone into the details of Section 133 of the Criminal Procedure Code, 1973. Section 133 of the Criminal Procedure Code, 1973 reads as under:-

"Section 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 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 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.

(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."

Sub-section (2) of Section 133 of Criminal Procedure Code, 1973 clearly shows that "no order made by a Magistrate under this section shall be called in question in any civil court". This is so because the purpose of Section 133 Criminal Procedure Code, 1973 is entirely different which is to remove an unlawful obstruction or nuisance on public property. Since the alleged nuisance here is on a public property, recourse is possible under Section 133 of CrPC.

In view of the above, the writ petition is allowed. The order dated 21.05.2011 passed by respondent no. 3 is set aside.