Bombay High Court
Laxman S/O Baliram Amdhare vs State Of Maharashtra, Thr. The ... on 17 June, 2022
Bench: V. G. Joshi
1 cwp442.17 .odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO. 442/2017
Laxman S/o Baliram Amdhare,
Aged 65 years, Occ. Ex-Police Patil,
R/o. Ranala, Tah. Kamptee,
Dist. Nagpur.
....PETITIONER
VERSUS
1. State of Maharashtra,
through the District Collector, Nagpur,
2. Sub-Divisional Magistrate, Mouda,
Tah. Kamptee, Dist. Nagpur.
3. Commissioner of Police, Nagpur,
Nagpur.
4. Gram-panchayat of village - Ranala,
through its Sarpanch, at Ranala,
Tah. Kamptee, Dist. Nagpur.
5. Atul S/o Harihar Chorghade,
R/o. Ranala, Tah. Kamptee,
Dist. Nagpur.
6. Nagpur Improvement Trust, Nagpur,
through its Chairman, Civil Lines, Nagpur.
....RESPONDENTS
---------------------------------------------------------------------------------------------------
Mr. Omkar Ghare, Advocate for petitioner.
Ms. T. H. Khan, Additional Public Prosecutor for respondent Nos. 1 to 3.
Mr. A. J. Thakare, Advocate for respondent No. 4.
Mr. M. R. Joharpurkar, Advocate for respondent No. 5.
Mr. Anand Jaiswal, Sr. Advocate with Mr. G. A Kunte, Advocate for respondent
No. 6.
2 cwp442.17 .odt
CORAM : VINAY JOSHI, J.
CLOSED FOR JUDGMENT : 14.06.2022.
DATE OF JUDGMENT : 17.06.2022.
JUDGMENT
Rule. Rule made returnable forthwith. Heard finally by
consent of the learned counsel appearing for the parties.
2. The challenge in this petition is to the order dated 19.01.2017
passed by the Sub-Divisional Magistrate ('SDM'), Mouda, Tahsil
Kamptee, District Nagpur in terms of Section 133 of the Code of
Criminal Procedure ('Code'). By virtue of said prohibitory order, SDM
has precluded the villagers from using land bearing Survey No. 6,
admeasuring 0.51 H. of village Ranala, Tahsil Kamptee from using as
crematorium or burial ground. Initially, the petitioner has challenged
the said order in Criminal Revision No. 47/2017, however the learned
Additional Sessions Judge vide order dated 31.03.2017 has confirmed
the order by way of dismissing the revision petition.
3. It is the petitioner's case that land bearing Survey No. 6 was used
as crematorium since the period immemorable. The said land was in the
proximity of village. It is alleged that on the basis of some complaints
without following mandatory procedure prescribed under Section 133 of
the Code, the impugned order has been passed. Particularly, it is
submitted that the SDM has neither passed preliminary order nor
3 cwp442.17 .odt
conducted requisite inquiry while passing impugned order. According to
the petitioner, the aggrieved parties i.e. petitioner and other villagers
were not heard and as such, principles of natural justice are violated.
4. On the other hand, the State as well as respondent No. 5 at whose
instance, the impugned order was came to be passed, have justified the
order under challenge. It is the respondents' stand that though the land
bearing Survey No. 6 was used as crematorium, however by passage of
time, population of village Ranala has increased. The residential houses
have been constructed in the proximity of said land. Perceiving the
growing need, funds were sanctioned, and new crematorium was
constructed at land bearing Survey No. 135 at Village Ranala. It is
submitted that use of land bearing survey no. 6 as crematorium, many
health issues cropped up. Moreover, without seeking prior permission of
the Planning Authority ota and shade was constructed over land Survey
No. 6, for which notice was issued by the Planning Authority. It is
contended that on receipt of complaint regarding public nuisance, report
of Block Development Officer ('BDO') was called. After spot inspection,
the BDO has submitted report about the health hazard for the nearby
locality due to use of Survey No. 6 as crematorium.
5. Learned counsel for the petitioner took first and foremost
objection that due procedure was not followed. It is his submission that
the SDM has not passed the preliminary order before passing the
4 cwp442.17 .odt
impugned order in terms of Section 133 of the Code. To substantiate
said contention, reliance is placed on the decision of the Supreme Court
in case of C. A. Avarachan Vs. C. V. Sreenivasan and Another, (1996) 7
SCC 71, wherein, it is ruled that non-compliance of the mandatory
requirement of drawing up a preliminary order vitiates the entire
proceedings. On the same line, petitioner relied on the decision of this
Court in case of Murlidhar Bhila Patil Vs. Onkar Vyankat Patil, AIR 1961
BOMBAY 263 (V 48 C 64) and in case of Shrikant S/o Shankarrao
Agnihotri Vs. Shri Rajeshwar Sansthan, Akola through Trustees & others,
(Criminal Application (APL) No. 483/2017).
6. In view of said challenge, the principal issue is about alleged
non-compliance of the procedural aspect. Learned counsel for
respondents would submit that SDM has followed the procedure as
contemplated under law. He would submit that show cause notice dated
08.12.2016 amounts to due compliance of preliminary step which was
culminated into final order dated 19.01.2017. It is the respondents'
submission that there is no necessity to pass preliminary conditional
order, but the purpose would suffice if surve cause notice has been
issued. It is contended that on issuance of show cause notice dated
08.12.2016, no one has appeared before the SDM on specified date and
therefore, on receipt of report from the BDO, the final order was came to
be passed.
5 cwp442.17 .odt
7. Bear reading of Section 133 of the Code indicates that in
case of public nuisance, the first step is about passing of conditional
order to remove the nuisance. In case, the said conditional order was
not obeyed then the objector has to be called to appear and respond the
show cause notice, as to why the order should not be made absolute. In
other words, show cause notice must be preceded with a conditional
order for removal of nuisance. In case at hand, the respondents are
unable to point out any conditional preliminary order passed by the
SDM. Mere show cause notice without conditional order cannot be
termed as a due compliance of the mandatory requirement
contemplated under Section 133(1) of the Code.
8. Pertinent to note that a report of BDO dated 05.01.2016 precedes
to the show cause notice dated 08.12.2016 and therefore, it cannot be
construed as a part of inquiry. Section 138 of the Code contemplates
that after passing of preliminary order followed by show cause notice,
the SDM is bound to make inquiry by taking evidence in the matter, if
any. On his satisfaction, the order can be altered or made absolute.
There is no record to indicate that the show cause notice was served on
any one or notified by proclamation so as to give an opportunity to the
objectors. The Authorities have not produced any record to show as to
in which manner, the inquiry was carried on. The impugned order
speaks that on 08.12.2016, preliminary order was passed, however,
6 cwp442.17 .odt
there is no such order nor the show cause notice dated 08.12.2016 can
be termed as preliminary order. As noted above, the essential
requirements of Section 133 of the Code has not been complied. It is
evident that without passing the preliminary order, show cause notice
was issued. There is no record to indicate that inquiry was held. In the
circumstances, impugned final order dated 19.01.2017 would not
sustain in the eyes of law.
9. In view of above, petition stands allowed and disposed of
accordingly.
10. The impugned order dated 19.01.2017 passed by the SDM and
consequential order dated 31.03.2017 passed by the Additional Sessions
Judge, Nagpur in criminal revision are quashed and set aside.
11. The matter is remitted back to the SDM for its fresh consideration
in accordance with law.
12. Rule is made absolute in above terms.
JUDGE
Gohane
Digitally
signed by
JITENDRA
JITENDRA BHARAT
BHARAT GOHANE
GOHANE Date:
2022.06.17
18:09:31
+0530
