Muncipal Council Nagda Through ... vs The State Of Madhya Pradesh ...
2021 Latest Caselaw 8585 MP

    HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
BEFORE SINGLE BENCH : HON'BLE MR. JUSTICE ANIL VERMA, J.


                        MCRC No. 37252 of 2021

                         MUNCIPAL COUNCIL NAGDA
             THROUGH ITS AUTHORIZE OFFICER AJIT TIWARI
                                        Vs
                      THE STATE OF MADHYA PRADESH
                     THROUGH COLLECTOR AND OTHERS
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       Shri Manoj Manav, learned counsel for the petitioner .
       Smt. Bharti Lakkad, learned GA for the respondent/State.
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                                    ORDER

( Passed on 10/12/2021) Petitioner has filed present petition under section 482 of Cr.P.C being aggrieved by the order dated 31/03/2021 passed by Additional Sessions Judge, Nagda, District - Ujjain in Criminal Revision no. 20/2020, whereby the order dated 10/12/2020 passed by Sub- Divisional Magistrate, Nagda, District-Ujjain in case no. 13/2020 has been set aside.

2. Brief facts giving rise to present petition are that petitioner Municipal Council, which is allegedly constituted council had passed a resolution no 162 dated 05/02/2016 for construction of Welcome Gate at the entry point of the city. Technical sanction was obtained from the EE of Urban Administration and Development, Ujjain Division, Ujjain by letter no. 17/2015 and tender was accepted on 04/09/2018. Work order was issued by order no. 6810 on 14/09/2018. A complaint was filed by the complainant Abhay Chopra under sections 133 and 139 of Cr.P.C in the year 2019. A report was submitted before the Sub-Divisional Magistrate, Nagda, District-Ujjain ( in short " SMD") and on the basis of the report, the SDM dismissed the complaint. Thereafter, the complainant / respondent no. 3 Abhay Chopra filed Criminal Revision no. 20/2020 before the Additional Sessions Judge, Nagda, District - Ujjain ( in short "ASJ") and the ASJ allowed the revision and remanded the matter back to the SDM for fresh decision. Thereafter, on the basis of the committee report and physical verification of the site, learned SDM again dismissed the complaint. Thereafter, revision was again filed before the Additional Sessions Judge, Nagda, which was allowed and the order of the SDM was set aside and also canceled the construction permission.

3. Learned counsel for the petitioner submits that learned Revisional Court has allowed the revision, but the scope of interference is very limited, but considering the scope of interference , the Revisional Court has allowed the revision on factual aspects. Learned Sessions Judge has canceled the construction permission without considering the aspect that construction permission was given on the basis of the resolution passed by the Municipal Council, Nagda and on the basis of technical sanction granted by the Urban Administration Department. Under the garb of the order, learned Revisional Court has quashed the resolution passed by the Municipal Council, which is not permissible. The complainant filed complaint in anticipation of the nuisance, which is not maintainable. The complainant after obtaining opportunity did not produce any evidence. Learned Sessions Judge have no jurisdiction to interfere in the work of the Municipal Corporation. The complaint was filed with a motive to obtain undue advantage. The Revisonal Court has stated that the construction on footpath will effect the movement of public, butnot considered the aspect that the Welcome Gate is being constructed on the end of the Municipal Road. There is no footpath and Municipal road terminating into state Highway.

4. The Municipal Council, Nagda has already expended huge amount for ongoing construction, hence the present petition be allowed and the impugned order passed by learned Additional Sessions Judge, Nagda be quashed.

5. On the other hand, learned counsel for the respondent opposed the petition and prays for its rejection by supporting the impugned order passed by the Court below.

6. Heard learned counsel for the parties and pursued the record.

7. In the case, where action under section 133 of Cr.P.C for removal of the public nuisance is required, relevant provision of section 133 of Cr.P.C is required to be reproduced, which is as under :

'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 thhealth 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 ma de 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 left unoccupied for sanitary or recreative purposes."

8. In the case of Vasant Manga Mahajan And Ors. vs Baburao Bhikanna Naidu And Anr. r eported in 1995 Supp (4) SCC 54, Honble Supreme Court has held as under :

"4. A reading of Section 133 would clearly indicate that the Executive Magistrate has been empowered, on receiving a report of the police officer or other information and on taking such evidence as he thinks fit that any building, tent or structure is in such a condition that, due to failure to remove, disrepair, or without support 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 he is empowered to specify the time to remove, repair or provide support to such building, tent or structure or tree. Two options are open to the Executive Magistrate on considering whether structure, building etc. is in such a dilapidated condition which requires to be demolished immediately which brooks no delay to avert danger to the life and property of the neighbourhood or passer-by unless they could be suitably repaired or supported so as to avert danger to the public or have it removed, etc. The condition precedent to exercise the power under Section 133 is the imminent danger to the property and consequential nuisance to the public. The removal of the building is so urgently required as it is likely to fall and cause injury to persons living or carrying on business in the neighbourhood or passers-by. The nuisance is the concomitant act resulting in danger to the life or property due to likely collapse etc. The dangerous condition of the building is in praesenti but not in future. The section is limited to injuries likely to be caused to the passers-by or persons living or carrying on business in the neighbourhood. Each case has to be considered in the light of the facts and circumstances obtained in each case".

9. In the case of T.K.S.M. Kalyanasundaram v. Kalyani Ammal reported in 1975 Cr.LJ.1717,, the Madras High Court held as under :

"the alleged nuisance would have been in existence for a long period. The circumstances and the evidence in that case did not prove that an urgency existed warranting the taking of action under Section 133. No action can be taken under this section where the obstruction or nuisance has been in existence for a long period and the only remedy open to the aggrieved party was to move the civil court. It was also held that Section 133 is attracted only in cases of emergency and immediate danger to the health or physical comfort of the community. Accordingly on the facts in that case, it was held that there was no immediate danger or emergency for the removal of the structure offending in that case. It is also settled law that 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 encourse (sic encouraged) to taking recourse to the provisions of Section 133 of the Code"

10. In the case in hand, it is observed that the SDM has proceeded to form an opinion on the basis of the report submitted by the Committee after verification of the site, the complainant was given opportunity to adduce evidence in support of his complaint, but he did not adduce any evidence before the SDM, Nagda. He has filed a complaint on the basis of the news published in the newspaper. He did not disclose regarding public nuisance, as to when it was committed. As per the spot inspection report, no encroachment has been found over the road or footpath. Resolution no. 162 regarding construction of the Welcome Gate was passed on 09/02/2016 and after obtaining technical sanction, tender was accepted and the work order hads been issued and its construction work has been started. During investigation of the Committee, it has been found that no nuisance has been created due to the construction of the Welcome Gate. Instead of that, it is for beautification of the spot. Learned Revisional Court did not take this aspect of the matter into consideration. The impugned order passed by learned Additional Sessions Judge is not in the line with the principles laid down in the aforementioned judgments also.

11. On the basis of the above analysis, it is collected that the impugned order dated 31/03/2021 passed in Criminal Revision no.

20/2020 by learned Additional Sessions Judge, Nagda, District- Ujjain, is contrary to the law, therefore, the same is hereby set aside and the order dated 10/12/2020 passed in case no. 13/2020 by Sub-Divisional Magistrate, Nagda, District-Ujjain is restored.

12. In light of the aforesaid, present petition filed under section 482 of Cr.P.C is hereby allowed and disposed of accordingly.

Certified copy, as per Rules.

(ANIL VERMA) JUDGE Digitally signed by AMOL N MAHANAG Date: 2021.12.13 12:05:52 +05'30'