Gujarat High Court
Bhikhabhai Mohanbhai Mori vs Irfanbhai Mohammedbhai Meman on 9 September, 2025
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R/SCR.A/8530/2018 ORDER DATED: 09/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 8530 of 2018
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BHIKHABHAI MOHANBHAI MORI
Versus
IRFANBHAI MOHAMMEDBHAI MEMAN & ORS.
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Appearance:
MR KUNAL S SHAH(5282) for the Applicant(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 1,2
MR. KARAN U VYAS(6992) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 09/09/2025
ORAL ORDER
1. By way of this petition under Article 227 of the
Constitution of India, the petitioner has prayed following
reliefs :-
"(a) To admit and allow this petition.
(b) To call records and proceedings of the Criminal
Revision Application No.88 of 2017 from the Court of learned
9 Additional Sessions Judge, Bhavnagar,
(c) To quash and set aside the order dated 29-8-2018
passed by the learned 9th Additional Sessions Judge,
Bhavnagar Criminal Revision Application No.88 of 2017,
and confirm the order dated 28-7-2017 passed by the
learned Sub-Divisional Magistrate, Palitana in Cr.P.C. 133
case Reg. No. 01/2017;
(d) During the pendency and final disposal of the present
petition YOUR LORDSHIPS may be pleased to stay the
execution, operation and implementation of the impugned
order dated 29-8-2018 passed by the learned Additional
Sessions Judge, Bhavnagar in Criminal Revision Application
No.88 of 2017; and direct the respondent nos. 1 and 2 to
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remove the garage and workshop:
(e) Pass any such other and/or further orders that may be
thought just and proper. in the facts and circumstances of
the present case."
2. Facts of the case are as under :-
2.1. The petitioner and few others of village Bharpura issued
notice to respondent no.1 and 2 for creating nuisance of noise
and also creating obstruction of passing through the road by
bringing in the old cars and breaking them and doing the work
of fabrication all throughout the day and night. Because of the
said activities carried out by the respondent nos. 1 and 2, the
people residing in the area could not sleep and moreover serious
noise pollution was being created. There was a problem of
suffocation being experienced by the people residing in the area
due to fabrication work carried out by the respondent nos. 1 and
2. Copy of the notice was forwarded to the office of the Sub
Divisional Magistrate, Palitana. In the light of the said notice,
the Sub Divisional Magistrate, Palitana wrote a communication
on 9-2-2017 to the Mamlatdar and Executive Magistrate advising
him to submit report on the communication made by the
petitioner and others. The petitioner along with other residents
also filed reply before the Deputy Collector and Sub Divisional
Magistrate on 16-3-2017. Pursuant to the same, the Executive
Magistrate had directed the Circle Officer to submit report to
him. The Circle Inspector after visiting the place and after
drawing the panchnama and recording the statement of the
petitioner had submitted his report to the Executive Magistrate
which was forwarded by the Executive Magistrate to the Sub-
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Divisional Magistrate along with his opinion on 16-3-2017,
whereby he has given opinion to the effect that that serious
nuisance of noise and pollution is being created by the
respondent nos 1 and 2 in the area because of their activities .
Pursuant to said report, Sub Divisional Magistrate and Prant
Officer had registered case being Cr.P.C. Reg.No.01/2017 and
issued notice to the petitioner and other residents and also to
the respondent nos. 1 and 2. The petitioner along with other
residents of the area appeared before the Sub Divisional
Magistrate. The respondent nos. 1 and 2 though were served
with the notice, the respondent no. 1 alone filed a reply before
the Sub Divisional Magistrate in defence of his case. Thereafter
the Deputy Collector and Mamlatdar had initiated the proceeding
under section 133 of Cr.P.C. and taken out notice. Subsequently
after hearing the petitioner and other residents of the village
including the respondents, passed an order on 28-7-2017
whereby he has allowed the application filed under section 133
of Cr.P.C. and directed the respondent nos. 1 and 2 to remove
the motor garage and fabrication workshop as damage is being
caused to the health of the residents of the area and nuisance is
being created. Aggrieved by the said order the respondent no.1
approached the Court of Sessions at Bhavnagar by way of
Criminal Revision Application No.88 of 2017 under section 397
of the Code of Criminal Procedure, 1973. Learned Sessions
Judge, Bhavnagar vide order dated 29.08.2018 allowed the
Revision Application. Hence, present petition.
3. Learned advocate Mr.Shah for the petitioners assailing
impugned judgment and order passed by learned Sessions Judge
in Revision Application No.88 of 2017 submitted that learned
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Sessions Judge has committed serious and gross error in
upturning order passed by Sub Divisional Magistrate, Palitana in
Case No.1 of 2017 registered under section 133(1)(A) of the
Criminal Procedure Code. It is further submitted that SDM
having considered panch-rojkam and report of the Executive
Magistrate believed that respondents are carrying work in Motor
Garage in residential area is creating public nuisance and is
unlawfully obstructing public place and rightly ordered to
remove such public nuisance under section 133(1)(A) of the
Code. It is further submitted that panch-rojkam carried by SDM
on record at page no.34 having its type copy at page no.35
unrevealed that Motor Garage is owned by respondents is public
plat and near public way in residential area, whereby repeatedly
hitting iron plates and causing nuisance and by filling gas they
were creating air pollution and unlawfully obstruction was
carried. It is further submitted that SDM is empowered under
section 133 of the Cr.P.C. to remove obstruction, if it is unlawful
obstruction causing public nuisance. In support of his
submission, he relied on following judgments :-
(1) Kachrulal Bhagirath Agrawal v/s. State of Maharashtra
[2005 (9) SCC 36]
(2) Shah Pushpaben Pravinchandra v/s. State of Gujarat
[2013 (2) GLR 1587]
(3) Baldevbhai Somabhai Prajapati v/s. Gandhinagar
Municipal Corporation [2023 JX (Guj) 173].
(4) Mamtaben Rakesh Medtiya v/s. Jayantibhai Narsinh
Patel[2025 LawSuit (Guj) 1981].
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3.1. Learned advocate for the petitioners would submit that
learned Sessions Court has upturned the order of SDM on
technical consideration that SDM has not passed conditional
order but passed final order. He would further submit that
technicality would not substantiate justice. Thus, it is submitted
to allow the petition and quash the order passed by learned
Sessions Court and to restore order passed by SDM.
4. Quietly in contrast against argument of learned advocate
Mr.Shah, learned advocate Mr.Vyas submitted that as per his
instructions, motor garage is not working at the place and it is
closed. Be that as it may. It is further submitted that learned
Sessions Court has thoroughly examined the issue within four
corners of provisions of law. It is submitted that this Court
under Article 227 of the Constitution of India should not
interfere with impugned order unless it is established that non
interference would cause miscarriage of justice. It is submitted
that SDM on his own called report from Executive Magistrate,
one side panch-rojkam was carried out without taking signature
of the respondent and others and relaying upon such panch-
rojkam, SDB without leading any evidence or calling report from
police officer passed drastic order of closing business of private
respondents. It is further submitted that respondent started his
business of garage work after obtaining necessary permission
and certificate from Palitana Nagar Palika. It is submitted that
though it was placed before the SMD, order was passed in
ignoring such certificate and permission granted by Palitana
Nagar Palika which tantamount to exercise of appellate power by
SDM. It is further submitted that there is no whisper of evidence
which indicates that there is unlawful obstruction or nuisance
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which cause inconvenience to the public at large. No other
person or public at large raised obstruction of work carried in
motor garage except petitioner who has personal grudge with the
private respondents.
4.1. In view of above, it is submitted to dismiss the petition.
5. Learned APP for respondent State in the facts of the case
submitted to pass necessary order.
6. At the outset, if we peruse order passed by SDM viz-a-viz
sections 133, 134, 138 etc. of Cr.P.C., it appears that mandatory
procedure has been given go by, by the SDM. Power under
section 133 of Cr.P.C. is lying with District Magistrate or Sub-
Divisional Magistrate or any other Executive Magistrate specially
empowered in this behalf by the State Government. He on
receiving the report of a police officer or other information and
on taking such evidence (if any) as he thinks fit can pass
appropriate order under section 133 of Cr.P.C. In the present
case, it appears that SDM instead of following section 133 of
Cr.P.C. in letter and spirit called report from Executive
Magistrate which is again authority under section 133 who
carried panch-rojkam in absence of independent person believed
panch-rojkam and report of Executive Magistrate, passed drastic
order of closing business. No reasons which could be said to be
legal reason has been assigned by SDM to pass order. It appears
that private respondents were carrying on business of motor
garage with permission and certificate from Palitana Nagar
Palika. However, the order of SDM is silent on this aspect. Even
SDM did not take care to call report from Palitana Nagar Palika
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which determining cause of nuisance. Like wise, no report from
police is called by the SDM while believing that there is unlawful
obstruction. It is classic case where SDM become Judge of his
own cause. This is essentially arbitrary order. By general word,
SDM believed that nuisance is caused, perhaps without
understanding cause nuisance. Learned Sessions Judge while
overturning the order passed by SDM believed that at first
instance, SDM was required to pass conditional order under
section 133 of Cr.P.C. and then has to proceed further and to
passed order under section 138 of Cr.P.C. Observations and
findings of learned Sessions Judge in para 10 is material which
reads as under :-
"10. In view of the aforesaid settled principles of law this
Court has to now examine the illegality and validity of the
order passed by the Sub - Divisional Magistrate, Palitana.
On going through the R & P of the case it transpires that the
opponent no.1 had served the notice upon the revisionists
and the Sub - Divisional Magistrate, Palitana and on receipt
of the said notice the cognizance was taken by the Sub -
Divisional Magistrate, Palitana and he directed the Executive
Magistrate, to submit his report with respect to the notice
which was received and subsequently the Executive
Magistrate asked the Circle Inspector to draw a panchnama
so that the picture becomes clear and so the panchnama
was drawn and the reply of the opponent no.1 was recorded
and after hearing the parties the Sub - Divisional
Magistrate, Palitana was pleased to order the revisionists to
shut down their businesses. It will be profitable to refer a
judgment delivered by the Hon'ble High Court of Gujarat in
the case of Maneklal Karsandas Davda vs. State of Gujarat
reported in 1998 (2) GLR 1004 wherein it has been observed
that, 鄭 t the first instance, looking to the scheme of Sec.133
of the Code of Criminal Procedure, District Magistrate, Sub -
Division Magistrate of Executive Magistrate on receiving
police report or other information on being satisfied of the
conditoins set out under Sec.133 (1) of the Code may make a
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conditional order requiring the person causing such
obstruction or nuisance within time fixed in the order to
remove such obstruction or nuisance. Sub - sec. (1) of Sec.
138 provides that if a person against whom an order under
Sec.133 of the Code is made, appears and shows cause
against the order, the Magistrate shall take evidence in the
matter as in a summons case. If the Magistrate is satisfied
that the order either as originally made or subject to such
modification as he considers necessary is reasonable and
proper, the order shall be made absolute without
modification or as the case may be, with such modification.
In the present case, it does not appear that the learned
magistrate passed the conditional order as required by sub -
sec. (1) of Sec. 133 of the Code of Criminkal Procedure. This
is evidence from the fact that there is no order making
conditional order absolute. The impugned order only speaks
that the application of Harshadbhai and others is granted
and therefore, the opponents are directed to forthwith
remove two air - conditioners.This cannot be said to be an
order under Sec. 138 of the Code of Criminal Procedure. On
this ground alone, the impugned order deserves to be struck
down.Now, on perusal of the entire record of the present
case also it transpires that the Sub - Divisional Magistrate,
Palitana has not passed the conditional order as envisaged
under sub - section (1) of Section - 133 of the Code of
Criminal Procedure and this is clearly established because
there is no order making the conditional order absolute. On
perusal of the order passed by the Sub - Divisional
Magistrate, Palitana it transpires that he also has directly
allowed the appeal and further directed to shut down the
motor garage as well as the unit of blacksmith functioning in
the land bearing survey no. 18 of Palitana as the same is
adversely affecting the residents of the nearby vicinity and it
is also further directed that the Police Inspector, Palitana
has to ensure the closure of the said businesses within ten
days from the passing of the order. Hence, it can be said
that no any conditional order was passed by the Sub -
Divisional Magistrate, Palitana because no order has been
made absolute, and therefore, it can be said that the
impugned order has not been passed as per the provisions
Section - 133 of the Code of Criminal Procedure, and
therefore, the following order is passed in the interest of
justice :
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:: ORDER ::
1. The present Revision Application is hereby allowed.
2. The order passed in the Case Regi. No. 1/2017 by the
Sub - Divisional Magistrate, Palitana on dated 28.07.2017 is
hereby set aside.
3. R&P, if any, be sent back to the Court of the Sub -
Divisional Magistrate, Palitana alongwith the copy of this
order."
7. In supervisory jurisdiction under Article 227 of the
Constitution of India, this Court is unable to interfere with
aforesaid findings of learned Sessions Court.
8. With profit, I may refer to the judgment of Hon'ble Apex
Court in case of Garment Crafts Vs. Prakash Chand Goel
reported in (2022) 4 SCC 181, wherein, the Hon'ble Apex Court
has discussed the nature of scope of the supervisory jurisdiction
under Article 227 of the Constitution of India. Relevant
discussion in para 15 and 16 reads thus:-
"15. Having heard the counsel for the parties, we are
clearly of the view that the impugned order is contrary to
law and cannot be sustained for several reasons, but
primarily for deviation from the limited jurisdiction
exercised by the High Court under Article 227 of the
Constitution of India. The High Court exercising supervisory
jurisdiction does not act as a court of first appeal to
reappreciate, reweigh the evidence or facts upon which the
determination under challenge is based. Supervisory
jurisdiction is not to correct every error of fact or even a
legal flaw when the final finding is justified or can be
supported. The High Court is not to substitute its own
decision on facts and conclusion, for that of the inferior
court or tribunal [Celina Coelho Pereira (Ms) and Others v.
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Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC
217]. The jurisdiction exercised is in the nature of
correctional1 jurisdiction to set right grave dereliction of
duty or flagrant abuse, violation of fundamental principles
of law or justice. The power under Article 227 is exercised
sparingly in appropriate cases, like when there is no
evidence at all to justify, or the finding is so perverse that
no reasonable person can possibly come to such a
conclusion that the court or tribunal has come to. It is
axiomatic that such discretionary relief must be exercised
to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227,
this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001)
8 SCC 97 has observed:-
"6. The scope and ambit of exercise of power and
jurisdiction by a High Court under Article 227 of the
Constitution of India is examined and explained in a
number of decisions of this Court. The exercise of
power under this article involves a duty on the High
Court to keep inferior courts and tribunals within the
bounds of their authority and to see that they do the
duty expected or required of them in a legal manner.
The High Court is not vested with any unlimited
prerogative to correct all kinds of hardship or wrong
decisions made within the limits of the jurisdiction of
the subordinate courts or tribunals. Exercise of this
power and interfering with the orders of the courts or
tribunals is restricted to cases of serious dereliction of
duty and flagrant violation of fundamental principles
of law or justice, where if the High Court does not
interfere, a grave injustice remains uncorrected. It is
also well settled that the High Court while acting
under this article cannot exercise its power as an
appellate court or substitute its own judgment in place
of that of the subordinate court to correct an error,
which is not apparent on the face of the record. The
High Court can set aside or ignore the findings of facts
of an inferior court or tribunal, if there is no evidence at
all to justify or the finding is so perverse, that no
reasonable person can possibly come to such a
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conclusion, which the court or tribunal has come to."
9. Judgments relied upon by petitioners mainly consider
power of SDM. There is no quarrel with the ratio decidendi.
However, in the facts of the present case as noted above,
judgments on which reliance is placed does not render any
assistance to the petitioners.
10. In wake of above reasons, the present petition is found
merit-less. The present petition is dismissed. Notice is
discharged.
(J. C. DOSHI,J)
SATISH
