Santoshben Sureshbhai ... vs The Sub Divisional Magistrate ...
2023 Latest Caselaw 6999 Guj

                                                                                NEUTRAL CITATION




     R/CR.RA/151/2015                           JUDGMENT DATED: 22/09/2023

                                                                                 undefined




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL REVISION APPLICATION NO. 151 of 2015


FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE M. K. THAKKER

==========================================================

1     Whether Reporters of Local Papers may be allowed               NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                        NO

3     Whether their Lordships wish to see the fair copy              NO
      of the judgment ?

4     Whether this case involves a substantial question              NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
         SANTOSHBEN SURESHBHAI MAHESHWARI & 1 other(s)
                             Versus
     THE SUB DIVISIONAL MAGISTRATE JAMNAGAR CITY & 2 other(s)
==========================================================
Appearance:
VIRAL K SHAH(5210) for the Applicant(s) No. 1,2
MS VRUNDA SHAH, APP PUBLIC PROSECUTOR for the Respondent(s)
No. 3
RULE SERVED for the Respondent(s) No. 1,2
==========================================================

CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                          Date : 22/09/2023

                          ORAL JUDGMENT

1. This is an application filed by the petitioners - original

NEUTRAL CITATION

R/CR.RA/151/2015 JUDGMENT DATED: 22/09/2023

undefined

applicants challenging the order dated 2 nd February, 2015

passed by the Sub Divisional Magistrate, Jamnagar City,

whereby, the application made by the present petitioners -

original applicants under Section-133 of the Code of Criminal

Procedure came to be rejected.

2. The case of the present application is that the petitioners

have purchased the Unit Nos.601 to 606 situated on the 6 th

floor of multi-storied building known as 'Amrish', located on

Indira Marg, Near Gurudwara, Jamnagar, admeasuring

206.062 square meters. The aforesaid multi-storied building

was constructed by the Jamnagar Municipal Corporation and

the petitioners have purchased the said units in public auction

and pursuant to that, the registered sale-deed came to be

executed on 23.07.2003. Accordingly, the name of the

petitioners have entered in the city record.

2.1 The respondent no.2 without taking the permission of

the petitioners had installed a huge mobile tower on the

rooftop of unit nos.601 to 607 and because of the same, the

ceiling has become weak and developed cracks. Resultantly,

NEUTRAL CITATION

R/CR.RA/151/2015 JUDGMENT DATED: 22/09/2023

undefined

the waste water started seeping through the ceiling into the

units of the petitioners and thereby the entire furniture,

fixtures, walls, floor tiles everything was damaged badly.

2.2 It is further case of the petitioners that due to the

aforesaid installation of mobile tower, ceiling is causing lot of

noise, vibration and emitting radiation due to which working

or carrying out the business of sixth floor has become

impossible and the same is dangerous to the health of the

humans and also to the property.

2.3 The petitioners made an application on 15.01.2015

under section-133 of the Code of Criminal Procedure for

removing the illegally installed mobile tower and also, prayed

to prevent the illegal activities carried out on the ceiling of

multi-storied building named as 'Amrish'. The aforesaid

application came to be rejected by the Sub Divisional

Magistrate, Jamnagar City on 02.02.2015 on the ground that

the dispute is pertaining to the private properties and

therefore, no action is required to be taken under Section-133

of the Cr.P.C. and the complaint came to be confined to the

NEUTRAL CITATION

R/CR.RA/151/2015 JUDGMENT DATED: 22/09/2023

undefined

record. The same is subject matter of challenge before this

Court by way of present criminal revision application.

3. Mr. Viral Shah, learned advocate appearing for the

petitioners submitted that the aforesaid mobile tower was

installed without taking permission and the learned Sub

Divisional Magistrate passed an order without considering the

serious difficulties faced by the petitioners and other

occupants of the multi-storied building. He further submitted

that without recording the statements of the other unit

holders and without seeking the report of the subordinate

officers with regard to the nuisance, damage and danger to

the lives of the petitioners. Learned advocate Mr. Shah

further submits that because of the installation of the

aforesaid tower, the respondent no.2 had occupied major

portion of the terrace and because of the radiation, which is

resulted into adverse health effects like sleep disorder,

headache, irritability, depression, memory loss, hearing loss,

joint problems, cardiovascular problems, miscarriage,

irreversible infertility etc. Mr. Shah further submits that on

installation of the unlawful mobile tower causing nuisance and

NEUTRAL CITATION

R/CR.RA/151/2015 JUDGMENT DATED: 22/09/2023

undefined

pollution and therefore, acted on the under section-133 of the

Cr.P.C., however, learned Magistrated had committed error

while rejecting the application and taking steps under the

same section. Therefore, he prays to quash the order passed

by the learned Magistrate and to grant the relief prayed in the

application filed under Section-133 of the Cr.P.C.

4. The endorsement of the board shows that rule is served

to the respondent nos.1 and 2, however, no-one has filed

appearance for them.

5. Ms. Vrunda Shah, learned APP appearing for the

respondent no.3 - State submitted that as on date the tower is

installed and it is lying as it. Therefore, there cannot be said

that the tower is in a condition, which is likely to fall

immediately and causing injury to the persons living and/or

carrying out the business at the place. Learned APP further

submitted that instead of filing the application under Section-

133 of the Cr.P.C., the civil proceedings could have initiated

and as the such proceedings were not initiated, the same

suggests that there is no imminent danger to the lives.

NEUTRAL CITATION

R/CR.RA/151/2015 JUDGMENT DATED: 22/09/2023

undefined

Therefore, no power under Section-133 was required to be

exercised and the learned Magistrate had rightly rejected the

application filed by the present petitioners. Therefore, she

prays not to interfere and to dismiss the present revision

application.

6. Before considering the merits of the case, this Court

deem it fit to reproduce the provision under Section-133 of

the Cr.P.C. which 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 of 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 configuration or explosion, should be prevented or stopped; or

NEUTRAL CITATION

R/CR.RA/151/2015 JUDGMENT DATED: 22/09/2023

undefined

(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

NEUTRAL CITATION

R/CR.RA/151/2015 JUDGMENT DATED: 22/09/2023

undefined

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 re-creative purposes.

7. It is submitted by the petitioners that their case is falling

under Sub-section-(1)(d) of Section-133 of the Code. Section-

133 provides that if 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. The

learned Magistrate can pass an order under Section-133 of

the Cr.P.C.

8. The order was passed by the learned Magistrate in the

year 2015 and as per the submission of learned advocate, the

mobile tower is still lying in the same condition, which

suggests that there is no imminent danger to the property and

consequential nuisance to the public. This Court is of the view

that no action can be taken under this section where the

NEUTRAL CITATION

R/CR.RA/151/2015 JUDGMENT DATED: 22/09/2023

undefined

obstruction or nuisance has been caused for a long period and

the only remedy open for the aggrieved party was to move the

civil court. Section-133 of the Cr.P.C. is attracted only in cases

of emergency and imminent danger of the health or physical

comfort of the community. The recourse to Section-133 could

not be a substitute for the civil proceedings and the parties

should have recourse to the civil remedy available and should

not be taking recourse of the action to Section-133 of the

Code.

9. As the learned Magistrate has held that this property is a

private property and there is no imminent danger to the

health and physical comfort to the public, the question of

attracting the provision under Section-133 of the Cr.P.C.

would not arise. Hence, the impugned order challenged by the

petitioners cannot be said to be illegal or perverse and no

interference is required by this Court. Therefore, the present

criminal revision application is hereby rejected. Rule is

discharged.

(M. K. THAKKER,J) A. B. VAGHELA