Rajasthan High Court

Smt Vijayrani And Ors vs State (2024:Rj-Jp:11609) on 6 March, 2024

Author: Sudesh Bansal

Bench: Sudesh Bansal

   [2024:RJ-JP:11609]

           HIGH COURT OF JUDICATURE FOR RAJASTHAN
                       BENCH AT JAIPUR

           S.B. Criminal Miscellaneous (Petition) No. 1739/2007

    1.      Smt. Vijayrani Wife of Late Shri Ajay Kumar, R/o 5/288,
            Sahayog Nagar, Bharatpur, District, Bharatpur.
    2.      Sanjeev Son of Late Shri Ajay Kumar, R/o 5/288,
            Sahayog Nagar, Bharatpur, District, Bharatpur.
    3.      Rajeev Son of Late Shri Ajay Kumar, R/o 5/288, Sahayog
            Nagar, Bharatpur, District, Bharatpur.
    4.      Amit Son of Late Shri Ajay Kumar, R/o 5/288, Sahayog
            Nagar, Bharatpur, District, Bharatpur.
    5.      Puneet Son of Late Shri Ajay Kumar, R/o 5/288, Sahayog
            Nagar, Bharatpur, District, Bharatpur.
                                                                      ----Petitioners
                                       Versus
    1.      State of Rajasthan through P.P.

    2.      Shyam Bihari Son of Shri Jageshwar Dayal, R/o Sahayog
            Nagar, Bharatpur.
    3.      Suresh Chand Sharma Son of Shri Leeladhar Sharma,
            R/o Sahayog Nagar, Bharatpur.
                                                                    ----Respondents

For Petitioner(s) : Mr. S.K. Gupta, Sr. Adv. with Ms. Surbhi Agrawal For Respondent(s) : Mr. Laxman Meena, PP Mr. Rinesh Gupta

HON'BLE MR. JUSTICE SUDESH BANSAL

Order

06/03/2024 Reportable

1. By means of this criminal misc. petition under Section 482

CrPC, a prayer has been made to quash the order dated

13.06.2007, passed by the Additional Sessions Judge No.2,

Bharatpur in criminal revision petition No.85/2006 and order dated

14.10.2002, passed by the Additional District Magistrate-cum-

Executive Magistrate, Bharatpur in case No.4/1997 titled Shyam

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Bihari Vs. Ajay Kumar, and to dismiss the complaint filed by non-

petitioners No.2 and 3 under Section 133 CrPC.

2. Heard counsel for both parties and perused the material

available on record.

3. It appears that non-petitioners filed a complaint under

Section 133 CrPC before the Additional District Magistrate,

Bharatpur (for short "ADM"), stating inter alia, that petitioners

herein have blocked a public lane having width of 6-8 feet by

raising construction of a room and affixing gate erecting two

pillars and thereby have caused nuisance to public at large. The

complaint was supported by affidavits of few neighbors namely

Sudha Rani, Daulat Ram, Kamal Kishore and Laxman, all residents

of Sahyog Nagar, Bharatpur. Learned District Magistrate, on

receiving the complaint, passed a conditional order dated

27.05.1997, requiring petitioners to remove pakka construction

from the public lane in exercise of its powers under Sub Section 1

of Section 133 of CrPC. On service of the conditional order upon

petitioners, they filed reply to the complaint categorically denying

the existence of any public lane in between houses of both parties.

Petitioners clearly contended that they purchased the land, House

No.05/288, situated at Sahyog Nagar, Bharatpur, from one

Vijayrani through registered sale deed dated 17.07.1972 and

towards western side of their houses, 20 feet wide way is available

whereupon main gate of their houses open. It was contended that

construction, which has been alleged by non-petitioners to be

raised on the public land, is basically situated on their own land.

Non-petitioners, having malevolent intentions against them and

[2024:RJ-JP:11609] (3 of 12) [CRLMP-1739/2007]

having an intention to get demolish their construction, that too

with the aid of District Magistrate have filed this false complaint

u/s.133 CrPC. Then learned District Magistrate proceeded to hold

an inquiry and granted opportunities to adduce evidence,

thereafter vide final order dated 14.10.2002, made the conditional

order dated 27.05.1997, absolute and directed petitioners to

remove the construction from the public lane, marked as ABCD in

the map appended with the complaint, within a period of 15 days,

albeit, construction shall get removed with the assistance of

police.

4. It appears that petitioners challenged the final order dated

14.10.2002 by way of filing criminal revision petition and pointed

out that the UIT, Bharatpur has regularized the purchased land of

petitioners i.e house No.5/288, Sahyog Nagar, Bharatpur. In the

registered lease deed of petitioners' plot, issued by the UIT,

Bharatpur, the disputed lane has not been shown as a public lane.

Similarly, existence of public lane is not proved by sale deeds of

adjoining plots. The Court of Additional Sessions Judge No.2,

Bharatpur while deciding the revision petition on merits vide order

dated 13.06.2007, observed that in the map appended with the

patta issued by the UIT, Bharatpur in respect of plot of petitioners,

though, existence of public lane is not shown, but same is referred

in the sale deed. Further, it was noted that petitioners did not

make cross examination of witnesses, who sworn their affidavits in

support of case of non-petitioners. The Revisional Court also

referred about pendency of a civil suit for permanent injunction,

but observed that this suit is not in respect of the disputed lane

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and finally affirmed the order of removal of construction passed by

the District Magistrate and dismissed the revision petition vide

order dated 13.06.2007. Hence, this petition.

5. Before embarking upon merits of both impugned orders, it

would be noteworthy to keep in mind that on filing of the instant

petition, status quo has been ordered to be maintained in respect

of disputed property since 29.05.2009, and thus the order passed

by the Executive Magistrate for removal of the construction of

petitioners has not been executed.

6. At the outset, it may be noted that Section 133 of the Code

of Criminal Procedure is envisaged under Chapter X of the Code

which deals with "Maintenance of Public Order and Tranquility".

Section 133 talks about the conditional order for removal of

Nuisance, for which powers have been entrusted to a District

Magistrate or a Sub-Divisional Magistrate or any other Executive

Magistrate whosoever is empowered by the State Government in

this behalf. The concerned authority may exercise powers under

this Section either on receipt of a police report or other

information and on the basis of evidence, if any, which invite the

case to fall within six categories enumerated under Sub-Section 1

of Section 133. On prima facie satisfaction, authority may pass

conditional order, which is required to be served upon the opposite

party and after service being effected, the opposite party or

person to whom order is addressed to obey or show cause, may

carry out the order [Section 135(a)] or if he does not, he has to

show cause against the order [Section 135(b)]. The present case

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falls in the category of Section 135(b) where petitioners put in

appearance before the District Magistrate and declined the

existence of any public lane, so also their construction to be an

obstruction on the public lane. In such an eventuality, it was

necessary for the District Magistrate to hold a preliminary inquiry

about existence of any public right in respect of the alleged public

lane by virtue of Section 137 CrPC. The provision of Section 137

CrPC is mandatory, before taking recourse to the procedure laid

down under Section 138 CrPC. Section 138 deals with providing

opportunity to parties to produce evidence. As per provisions of

Section 139 and 140 CrPC, the Magistrate is empowered to seek

assistance of any expert body or person for the purpose of an

inquiry under Section 137 or 138 CrPC. Section 142 stipulates to

issue an injunction, if a Magistrate making an order under Section

133 of the Code, considering that immediate measures should be

taken to prevent the eminent danger or injury of a serious kind to

the public. The Magistrate is further empowered by virtue of

Section 143 CrPC, to pass an order against any person not to

repeat or conduct a public nuisance.

7. The whole scheme of Section 133 CrPC meant to prevent

public nuisance is fundamentally for the purpose to take prompt

and speedy action by the Executive Magistrate to pass expedient

and appropriate orders in a case, where any public nuisance or

obstruction is proved to be made out against the right of public at

large. It means to attract the applicability and to invoke scope of

Section 133 of the Code, there must be an eminent danger to the

property or health and same must lead to consequential nuisance

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to the public at large. Indeed, the object and purpose of Section

133 of the Code is essentially to prevent public nuisance and that

too in emergent circumstances of that intensity that if the

Magistrate fails to take recourse immediately, same would result

irreparable damage to the public. Hence, it can be held that the

order, contemplated under Section 133 CrPC is basically for the

benefit of public at large and cannot be passed to safeguard any

civil and legal rights of an individual. Any private person may not

invoke powers of the Executive Magistrate as envisaged under

Section 133 CrPC to obtain any relief in connection with his

personal civil or legal rights.

8. The Hon'ble Supreme Court in cases of Vasant Manga

Nikumba Vs. Baburao Bhikanna Naidu (Deceased) By LRs.

[(1995) Suppl. 4 SCC 54] has observed and held that no action

can be taken under Section 133 CrPC where the obstruction or

nuisance has been in existence for a long period and in that

situation, the only remedy open to the aggrieved party was to

approach before the Civil Court for redressal of grievances.

Section 133 is attracted only in a case of emergency and

immediate danger to the health or physical comfort to the

community. The relevant paras of the judgment are reproduced as

under:-

"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

[2024:RJ-JP:11609] (7 of 12) [CRLMP-1739/2007]

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

5. In T.K.S.M. Kalyanasundaram v. Kalyani Ammal [(1975)2 MLJ 93 (Mad)], the Madras High Court held that 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."

9. The ratio decidendi as expounded by the Hon'ble Supreme

Court in case of Vasant Manga Mikumba (supra) was affirmed

and followed by the Apex Court again in case of State of MP Vs.

[2024:RJ-JP:11609] (8 of 12) [CRLMP-1739/2007]

Kedia Leather & Liquor [(2003) 7 SCC 389] wherein it was

held that to bring in application of Section 133 CrPC, there must

be an eminent danger to the property and consequential nuisance

to the public. The provision of Section 133 of the Code can be

culled in aid to remove public nuisance caused by affluent of

discharge and air discharge causing hardship to the general public.

It was observed that proceedings under Section 133 of the Code

are in nature of civil proceedings and not criminal proceedings,

which may also not be confused with powers and jurisdiction of

the Magistrate to be exercised under Section 144 CrPC.

10. Coming to the case at hand and considering the facts on the

touchstone of the under-laying object, where powers of District

Magistrate under Section 133 CrPC can be invoked, it is admitted

case of non-petitioners that pakka construction of room and two

pillars have been made by petitioners and the gate has been

affixed to block the alleged public lane. Non-petitioners have not

disclosed the period, date, month or year as to when the alleged

construction was made by petitioners. In addition, no cogent

evidence was produced by non petitioners before the District

Magistrate to prove existence of a public lane and that too any

such public lane was available at site for use by the public at

large. In the impugned order of Magistrate dated 14.10.2002,

reference is only about filing of affidavits by four persons namely

Sudha Rani, Daulat Ram, Kalam Kishore and one Laxman, who all

are resident of Sahyog Nagar, Bharatpur only. Petitioners have

clearly denied existence of any public lane more so not to be used

by the public at large. The impugned order of the Magistrate does

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not depict that what evidence or other material came on record

before him for recording, prima facie, satisfaction for existence of

public lane and about having any eminent danger to the public at

large by the construction of petitioners on such public lane. Even

the order is silent to record a finding of satisfaction to hold an

inquiry under Section 137 CrPC that the alleged lane, if was in

existence, is a public lane or not, and whether was being used by

the public at large. When petitioners retaliated the conditional

order, passed by the Executive Magistrate under Section 133(1) of

the Code and filed reply to the complaint, so also produced

documents including their registered lease deed issued by the UIT,

Bharatpur showing non existence of the alleged public lane at the

site, it was essential and mandatory for the Magistrate to hold an

enquiry, first about existence of a public lane for the benefit of

public at large, which has not been done in the present case. The

Magistrate proceeded to pass the final order for removal of

construction of petitioners merely on the ground that petitioners

did not cross-examine the executans of affidavits of four persons

produced by non-petitioners in support of their complaint. Three

four persons are not disinterested witnesses. No findings to have

any eminent danger to rights of public at large have been

recorded by the Magistrate. Therefore, this court comes to the

conclusion that the order impugned dated 14.10.2002 passed by

the Magistrate does not stand within ambit and scope of Section

133 CrPC and has been passed against the mandate of law

required to be followed for passing order u/s.133 CrPC.

[2024:RJ-JP:11609] (10 of 12) [CRLMP-1739/2007]

11. The Court of Additional Sessions Judge No.2, Bharatpur while

exercising its powers of Revision against the impugned order

dated 14.10.2002 completely ignored the essential ingredients,

required under law to pass an order within the scope of Section

133 CrPC and proceeded to adjudicate documents of parties

exercising its jurisdiction just like a Civil Court. In the present

case, when a dispute between two groups private parties have

erupted as to whether the disputed lane having width of 6-8 feet,

is a public path or a private land, same is obviously a disputed

question of fact which should not have been addressed by the

Revisional Court, usurping the jurisdiction of the Magistrate or the

jurisdiction of Civil Court more so when, it has been brought to

notice of the revisional court that a civil suit between parties is

pending as noted in the order itself. Such question cropped up,

after filing of reply by petitioners, to the complaint filed by non-

petitioners under Section 133 CrPC, could have been answered,

only after evaluating and scrutinizing the material evidence, for

which opportunity was required to be given to the both parties.

Hence the court of revision travelled beyond its jurisdiction. More

so, such disputed question of fact, pertaining to immovable

property, could not have been adjudicated in the summary

proceedings u/s.133 CrPC. Much less at least not by the Revisional

Court in exercise of its revisional jurisdiction in criminal revision.

Hence, this court is of the considered opinion that the impugned

order dated 13.06.2007 also suffers from manifest and grave

illegality and valuable on account of jurisdictional error as well and

leads to failure of justice.

[2024:RJ-JP:11609] (11 of 12) [CRLMP-1739/2007]

12. In somewhat similar set of facts and circumstances, the High

Court of Himachal Pradesh in case of Kashetar Pal Singh alias

Kripal Singh Vs. Harpal Singh [2016 0 Supreme (HP) 2371]

Cr.MMO No.109 of 2014 decided on 28.12.2016, declined to

adjudicate the dispute between the private parties, which was not

related to the public rights and not of general interest of public at

large, within the scope of Section 133 of the Code of criminal

procedure and the Court held as under:-

"Proceedings under Section 133 of CrPC are not intended to settle private dispute between to members of the public. It is settled law that if a dispute is of civil nature then the dispute cannot be entertained by the Magistrate under Section 133 CrPC. Provisions of the said Section can be used only for settlement of dispute in relation to a public right in the general interest of public at large."

13. This Court is of the considered opinion that on facts of the

case at hand, the dispute about encroachment over a gali of 6-8

feet wide allegedly to be in existence between houses of

petitioners and non-petitioners, is virtually a private dispute

between two members of public and proceedings under Section

133 of CrPC could not have been invoked to settle such private

dispute. This is an additional point that it is also questionable that

such gali was a public lane or not, that too for the benefit of public

at large? In facts of the present case, such dispute neither has

been adjudicated nor can be decided in the proceeding u/s.133

CrPC. Thus, the complaint filed by non-petitioners could not have

been entertained by the District Magistrate within the scope of