Madhya Pradesh High Court
Nimesh Shrivastava vs Municipal Corporation on 31 August, 2023
Author: Sheel Nagu
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
WRIT PETITION No. 15824 of 2018
BETWEEN:-
NIMESH SHRIVASTAVA S/O
D.K.SHRIVASTAVA, AGED ABOUT 38
YEARS, OCCUPATION: ADVOCATE, R/O 706
AGRAWAL COLONY, GHARA ROAD,
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI MANOJ SHARMA - SENIOR ADVOCATE WITH SHRI
SIDDHARTH PATEL - ADVOCATE)
AND
1. MUNICIPAL CORPORATION THROUGH
COMMISSIONER NEAR CORPORATION
CHOWK, JABALPUR (MADHYA PRADESH)
2. COMMISSIONER, MUNICIPAL
CORPORATION NEAR CORPORATION
CHOWK, JABALPUR (MADHYA PRADESH)
3. COLLECTOR, COLLECTORATE
JABALPUR (MADHYA PRADESH)
4. SUB DIVISIONAL MAGISTRATE KOTWALI
JABALPUR (MADHYA PRADESH)
5. SHRI KHERMAI LAXMI NARAYAN SEVA
SAMITI KHERMAI LAXMI NARAYAN
MANDIR AGRAWAL COLONY JABALPUR
THROUGH SECRETARY (MADHYA
PRADESH)
2
(RESPONDENT NO.1 & 2 BY SHRI RITWIK PARASHAR -
ADVOCATE)
(STATE BY SHRI PIYUSH JAIN - GOVERNMENT ADVOCATE)
(RESPONDENT NO.5 BY SHRI SHEERSH AGRAWAL-
ADVOCATE)
...RESPONDENTS
-----------------------------------------------------------------------------------------------
Reserved on : 20.06.2023
Pronounced on : 31.08.2023
----------------------------------------------------------------------------------------
This petition having been heard and reserved for orders, coming
on for pronouncement this day, Hon'ble Shri Justice Sheel Nagu
pronounced the following:
ORDER
This petition under Article 226 of the Constitution has been filed by
the occupant of Plot No.23 of Agrawal Colony, Jabalpur primarily
complaining that despite Competent Authority-S.D.O., Kotwali, Jabalpur
by order dated 28.04.2018 (Annexure P/12) having found existence of
encroachment leading to nuisance in public place, the said authority
instead of exercising its powers in accordance with provisions from
Section 133 to 143 of Cr.P.C. abdicated its duty by dismissing the
complaint of petitioner by categorizing the nuisance to be a case of breach
of easementary rights of petitioner thereby holding that no public nuisance
exists.
2. Learned counsel for rival parties were heard on the question of
admission so also final disposal.
3. The petitioner's grievance arises due to certain encroachment at and
around the temple established by respondent No.5 adjacent to the house of
petitioner in the same colony. Various representations in this regard were
preferred by petitioner to various authorities including Municipal
Corporation, M.P.P.K.V.V.C.L., Jabalpur and Revenue Authorities. Since
nothing substantial happened, petitioner preferred a complaint u/S.133 of
Cr.P.C. complaining about public nuisance caused by respondent No.5 of
blocking public way by making unlawful encroachment over the public
area. The S.D.O. Kotwali, Jabalpur registered a case u/S.133 of Cr.P.C. on
20.03.2017 and vide Annexure P/6 passed an injunction restraining
respondent No.5 from making any further unlawful construction, after
prima facie holding that act of respondent No.5 comes within the category
of public nuisance.
3.1 Since case u/S.133 of Cr.P.C. suffered prolonged pendency
petitioner was compelled to file WP. No.13734/2017, which was disposed
of on 13.09.2017 vide Annexure P/7 directing thus:-
"Mr. Manoj Sharma, learned counsel for the petitioner.
Mrs. Janvi Pandit, learned Panel Lawyer for the
respondents/State.
Heard.
The petitioner has filed the present petition for direction
to the respondents to remove illegal construction raised by the
respondent No.5.
Learned counsel for the petitioner submits that the
petitioner has approached all the concerned authorities
however inspite of directions issued by those authorities, no
action has been taken against the respondent No.5.
In view of aforesaid submissions made by learned
counsel for the petitioner, the writ petition is disposed of with a
direction that in case the petitioner submits a detailed
representation to the Collector within a period of 3 days' from
the date of receipt of certified copy of the order passed today,
the Collector shall look into the grievance made by the
petitioner and decide the said representation which may be
submitted by the petitioner expeditiously preferably within a
period of 15 days' from the date of receipt of such a
representation of the petitioner. It is made clear that this Court
has not expressed any opinion on the merits of the case.
Certified copy as per rules."
3.2 Accordingly, petitioner made a representation (Annexure P/8) to the
Collector alongwith copy of order of High Court. The Collector directed
S.D.O. Kotwali, Jabalpur, who was ceased of the matter to conduct and
conclude the proceeding initiated u/S.133 of Cr.P.C.
3.3 Consequently, vide Annexure P/10 S.D.O. informed the Collector
that respondent No.5-Samiti had been asked to submit relevant documents
to justify the alleged unlawful construction made by them.
3.4 Thereafter, petitioner vide Annexure P/11 once more requested
S.D.O. to promptly take action in the proceeding initiated u/S.133 of
Cr.P.C.
3.5 Consequent thereupon impugned order dated 28.04.2018 (Annexure
P/12) had been passed whereby S.D.O. records following findings and
directions:-
(i) The Municipal Corporation Officer, Shri Dinesh Pratap
Singh in his report found that temple constructed by respondent
No.5 behind house of petitioner had caused additional
construction of one foot resulting in effluent waste water of
toilet flowing in the public passage. The report further revealed
that occupants of the area informed that said construction made
by respondent No.5 around the temple caused obstruction and
restriction to access to public way. The report also found that
construction made behind house of petitioner by respondent
No.5 is unlawful and has been recently made.
(ii) The report of Superintending Engineer of M.P.P.K.V.V.C.L.,
Shri Sunil Trivedi revealed that electric poll, which was
standing in front of temple has been covered by a temporary
shed and thus is out of bounds and inaccessible. This report also
revealed that a new L.E.D. light has been installed by
respondent No.5 near the shed.
(iii) The C.S.P. Kotwali, Jabalpur by report dated 17.11.2017
informed S.D.O. that there is only one passage of access to the
house of petitioner adjacent to which there is boundary wall of
temple constructed by respondent No.5 wherein an electric poll
is installed which has been covered by temporary shed with
L.E.D. light installed separately.
(iv) The S.D.O. on 06.09.2017 called upon respondent No.5
to furnish documents/evidence in support of occupation.
However, respondent No.5 failed to respond to said notice of
S.D.O.
(v) The spot inspection was carried out by S.D.O. finding that
the temple constructed by respondent No.5 is adjacent to the
house of petitioner. The spot inspection revealed that there is a
way in front of temple over which a Chabutara has been
constructed over which a tin shed is erected.
(vi) Based on the aforesaid complaint made by petitioner, report
of various authorities which disclosed presence of
encroachment over public way and failure of respondent No.5
to respond to notice of S.D.O., S.D.O. heard the arguments of
counsel for both sides and passed following order:-
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vkosnd }kjk edku ij tkus ds jkLrs ij vukosnd }kjk
vfrdze.k ds laca/k esa izdj.k ntZ fd;k x;k gS] tks fd
vkosnd dk lq[kkf/kdkj ls lacaf/kr gSA ;fn vkosnd dk
lq[kkf/kdkj izHkkfor gks jgk gS rks og O;ogkj U;k;ky; esa
izdj.k izLrqr dj ldrk gSA vukosnd VªLV }kjk fcuk
vuqefr ds dksbZ fuekZ.k fd;k gS rc uxj fuxe Hkou 'kk[kk
esa vkosnd vkosnu izLrqr dj mDr voS/k fuekZ.k dks gVokus
dh dk;Zokgh dj ldrk gSA n.M izfdz;k lafgrk dh /kkjk 131
yksd iz'kkafr Hkax gksus ls lacaf/kr gS mDr izdj.k esa yksd
iz'kkafr Hkax gksuk izekf.kr ugha ik;k tk jgk gSA^
vr% izdj.k lekIr gksA mHk;i{k lwfpr gksA izdj.k uLrhc)
nk]-n- gksA^
4. From aforesaid sequence of events, which took place between the
filing of complaint by petitioner invoking jurisdiction of S.D.O. u/S.133 of
Cr.P.C. and the final order passed by S.D.O., which is impugned herein, it
is surprising to note that despite reports of functionaries of Municipal
Corporation, M.P.P.K.V.V.C.L., Revenue Authorities and Police
Department revealing a clear case of obstruction caused by respondent
No.5 to public passage thereby causing public nuisance, S.D.O. dismissed
the case registered u/S.133 of Cr.P.C. by categorizing the public nuisance
as breach of easementary rights of petitioner and also held at the end that
no case is made out of breach of public order.
4.1 It appears that S.D.O. failed to understand the elementary distinction
between breach of public order and public nuisance. Though both these
concepts are contained in Chapter X of Cr.P.C., but a cause of "breach of
public order" is governed by provisions in Section 129 to 132 of Cr.P.C.
whereas "public nuisance" is dealt with by Section 133 to 143 of Cr.P.C.
Thus, provisions in Chapter X of Cr.P.C. inter alia contain preventive and
also remedial measures in respect of cases where public nuisance is
reported and found to be established. Once the Executive Magistrate
receives a complaint of occurrence of public nuisance and forms prima
facie opinion that public nuisance exists a case u/S.133 of Cr.P.C. is to be
registered whereafter to prevent further occurrence of nuisance, injunction
can be issued pending final adjudication of complaint.
4.2 In the present case, S.D.O. by order dated 20.03.2017 (Annexure
P/6) had passed an injunction order after coming to prima facie view that
public nuisance as reported existed. Thereafter, S.D.O. is obliged to
requisition response from alleged nuisance creator within certain period of
time, which in the present case was done by issuance of notice on
06.09.2017. The S.D.O. is further authorized to conduct an enquiry by
carrying out spot inspection and summoning report of State functionaries,
which was done in the present case and all the reports furnished by police
department, Municipal Corporation, M.P.P.K.V.V.C.L. and Revenue
authorities pointed towards existence of public nuisance. In such a
situation the only course available to S.D.O. was to take into account the
response by respondent No.5. In the present case, no such response was
filed by respondent No.5 and; therefore, S.D.O. was statutorily obliged to
make the interim order dated 20.03.2017 absolute u/S.141 of Cr.P.C. In
case of disobedience of order made absolute, the nuisance creator would be
liable to face consequences of penalty u/S.188 of IPC including action of
removing the encroachment and attachment and sale of property of
nuisance creator and recovery of cost.
4.3 In the given facts and circumstances where material/evidence, which
was documentary in nature in shape of reports of different functionaries of
the State indicated clearly towards existence of public nuisance created by
respondent No.5, S.D.O. appears to have abdicated its statutory duty by
rejecting complaint of petitioner registered u/S.133 of Cr.P.C.
5. Learned counsel for respondents on the other hand have objected to
the maintainability of this petition by contending that against an order
u/S.133 of Cr.P.C. a criminal revision u/S.397 of Cr.P.C. lies and; therefore,
invocation of writ jurisdiction by petitioner is uncalled for.
5.1 The Municipal Corporation has also filed its reply objecting to the
petition by bringing on record recently prepared inspection reports of the
area concerned. The Municipal Corporation has also filed certain notices
issued to respondent No.5 that the unlawful construction made by
respondent No.5 would be removed u/S.307 of the Municipal Corporation
Act, 1956.
5.2 Be that as it may, the remedy under Municipal Corporation Act is a
separate remedy which the concerned authority is free to avail and take
action in accordance with law. However, the issue in the present petition is
about S.D.O. failing to perform its statutory duty under the provisions of
Section 133 to 143 of Cr.P.C.
5.3 This Court is conscious of its limited jurisdiction under Article 226
of Constitution where disputed questions of fact cannot be gone into.
However, since material and evidence before S.D.O. Kotwali, Jabalpur was
sufficient for making injunction passed u/S.142 of Cr.P.C., absolute
u/S.141 of Cr.P.C., for the reasons best known to S.D.O., said authority
failed to make the injunction absolute and instead took a U-turn by
dismissing the complaint of petitioner. A plain and simple case of public
nuisance, which was established as per evidence and material on record
was dismissed by holding the same to be a case of breach of easementary
rights of petitioner and absence of breach of public order.
6. In view of above, it is obvious and palpable that S.D.O. abdicated
his statutory duty u/S.133 to 143 of Cr.P.C. and; therefore, this Court in its
limited but plenary jurisdiction under Article 226 of the Constitution is
compelled to interfere in the present matter.
7. Accordingly, present petition is allowed in the following terms:-
(i) Impugned order dated 28.04.2018 (Annexure P/12) passed
by S.D.O. is set aside.
(ii) The S.D.O. is directed to pass fresh orders in terms of
evidence and material in shape of reports of various State
functionaries as mentioned in the order dated 28.04.2018 and
thereafter pass appropriate orders in accordance with law within
a period of two months of date of receipt of copy of this order.
(iii) Since petitioner has been subjected to a prolonged and
unnecessary and avoidable piece of limitation, petitioner is
entitled to cost of this petition which is quantified as
Rs.25,000/- out of which Rs.15,000/- shall be paid to petitioner
and remaining Rs.10,000/- shall be paid to M.P. High Court
Employees Association, Jabalpur (SB A/c
No.519302010000235, Union Bank of India, High Court,
Jabalpur for having wasted precious time of the Court which
could have been utilized in more pressing matters. The cost be
deposited within a period of 30 days failing which matter be
listed as PUD qua cost.
(iv) Since S.D.O. Kotwali, Jabalpur has abdicated his statutory
duty, cost of this litigation is saddled on the said officer alone to
be recovered from him without being demitted to public
exchequer.
(v) Till S.D.O. Kotwali, Jabalpur passes a fresh order in terms
of this judgment, the order of injunction passed on 20.03.2017
(Annexure P/6) by S.D.O. Kotwali, Jabalpur shall hold the
field.
8. With the aforesaid directions, present petition stands allowed.
(SHEEL NAGU) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
mohsin
Digitally signed by MOHAMMED
MOHSIN QURESHI
Date: 2023.09.01 11:07:46 +05'30'
