Criminal Misc.No.40163-M of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc.No.40163-M of 2007 Date of decision 29 .10.2010. Darshan Singh ...... Petitioner. versus Gurmel Singh ........ Respondent. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. O.P.Hoshiarpuri, Advocate for the petitioner. Mr. Amrik Singh Kalra, Advocate for the respondent. K.C.PURI, J. This is a revision petition preferred by the petitioner for quashing the order dated 28.1.2004 passed by Sub Divisional Magistrate, Ferozepur (Annexure P-3) and the order passed by learned Additional Sessions Judge, Ferozepur dated 29.5.2007 (Annexure P-5) being illegal, without jurisdiction against the mandatory provisions of Section 133 to 138 of the Code of Criminal Procedure ( in short – Cr.P.C.) Briefly stated the facts of the case of the petitioner are that respondent has installed Gobar Gas Plant in front of his house, due to waste/overflow of gobar from the Gobar Gas Plant, it spreads outside and Criminal Misc.No.40163-M of 2007 2 on the passage too, which emits foul smell for whole day and night and there is every possible danger to the health of his family. The applicant has requested the respondent many times to remove the Gobar Gas Plant and waste material coming out of it, but of no effect. Therefore, he has prayed that the respondent be directed to remove the Gobar Gas Plant, which has been installed in front of his house. On filing this application before the Sub Divisional Magistrate, the statement of applicant, and the statements of other witnesses namely, Banta Singh son of Saun Singh, Garib Dass son of Gurdit Singh and Sudhir Kumar Halqa Patwari, appeared on his behalf, were also recorded. The trial Court after conclusion of evidence and after hearing the learned counsel for the parties and perusal of the evidence available on the record, allowed the application of the applicant. The respondent preferred revision before the learned Additional Sessions Judge, who after hearing the learned counsel for the parties and have gone through the records of the case, dismissed the case of the petitioner-respondent. Still feeling dis-satisfied with the aforesaid orders of the Courts below, the present criminal misc. petition has been preferred by the petitioner-respondent. The respondent herein has filed reply to the main petition also and controverted the allegations mentioned therein and also supported the orders passed by the Courts below, which have been impugned in this petition. Criminal Misc.No.40163-M of 2007 3 I have heard the learned counsel for the parties and have gone through the records of the case. Learned counsel for the petitioner has challenged both the impugned orders on the following grounds :- (i) that the provisions of Section 133 Cr.P.C. cannot be invoked to seek the redressal of one individual. (ii)It is further submitted that there is no finding by both the Courts below that there is a public nuisance. In the absence of such finding, the order under Section 133 Cr.P.C. could not be passed. The Gobar Gas Plant is situated within the private property of the petitioner. The finding of both the Courts below that wastage goes to the passage is against the record. The Handbook of Punjab Agriculture University Ludhiana has given the condition of Biogas Technology. The plant was installed after taking the appropriate permission of the competent authority. To support this contention learned counsel for the petitioner has relied upon authorities Ram Autar and others vs. State of Uttar Pradesh AIR 1962 Supreme Court 1794 ; Branch Manger Vijay Bank, Ahmedabad vs. State of Gujarat 1999 (2) RCR (Criminal) 573, Rajappan vs. Sub Divisional Magistrate 1999(1) R.C.R. (Criminal) 294 (Kerala High Court). Learned counsel for the petitioner has further submitted that according to the case of the petitioner, Gobar Gas Plant was started five years back from the date of filing the application by the respondent- Criminal Misc.No.40163-M of 2007 4 applicant before the Sub Divisional Magistrate. It has been alleged that direction under Section 133 Cr.P.C. cannot be ordered to remove the Gobar even in the public street. To support this contention, learned counsel for the petitioner has relied upon authority Darshan Singh and anr. vs. Malkiat Chand and ors 1990(1) RCR 462 and Karta Ram vs. Manglu Ram 1981 CLR 371. Learned counsel for the petitioner has further submitted that the impugned order was passed by the trial Court without complying with the provisions of Section 133 Cr.P.C. First of all, the Executive Magistrate/Sub Divisional Magistrate is required to pass a conditional order and to fix the time to comply with the order. In the present case, no such conditional order was passed but a final order has been passed which is bad in the eyes of law and has also relied upon following authorities in support of his contention :- (1)T.P.Rajeevan vs. Sub-Divisional Magistrate and another 1986 Criminal Law Journal 693 (Kerala High Court) (2)Executive Officer, Gram Panchayat T.Kothapalli and another vs. Dada Satyavath and and others, 1999 Crl. L. J. 1424 (Andhra Pradesh High Court), and (3) Mahankali Yellaiah vs. K.Ravindera Reddy 2001(4) page 101. Criminal Misc.No.40163-M of 2007 5 On the other hand, learned counsel for the respondent has supported both the judgments of the Courts below. It is submitted that the present petition amounts to second revision petition, which is not maintainable. The Gobar Gas Plant was earlier installed in the back side of the property of petitioner. However, 8-9 months prior to the filing of the present application under Section 133 Cr.P.C., the present petitioner has shifted the Gobar Gas Plant towards passage. The Gobar Gas Plant even according to the petitioner is installed about a distance of three feets from the passage. There is concurrent finding of both the Courts below that the wastage of Gobar Gas Plant is being spread on the public passage, which causes nuisance to the respondent as well as other inhabitants of the village, so it is not a private nuisance but a public nuisance. It has come on the record that waste material takes 15 days to dry up and the house of the respondent is just about 20 -25 feet away from the Gobar Gas Plant installed by the petitioner. So, a foul smell is there which can also cause various diseases. No prejudice has been caused to the petitioner by passing the composite order of removal. Mere fact that conditional order has not been passed, does not vitiate the proceedings inasmuch as the proceedings are pending for the last so many years. The petitioner is now running Gobar Gas Plant under the orders of the Court, which cause severe type of public nuisance to the respondent and the other inhabitants of the village. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case. Criminal Misc.No.40163-M of 2007 6 Section 133 of the Cr.P.C. deals with removal of public nuisance by the District Magistrate or Sub Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State government . Section 137 of the Cr.P.C. deals with the procedure where the existence of public right is denied. Section 138 of the Cr.P.C. deals with the issuance of a show cause notice for making the conditional order as absolute. In order to properly appreciate the facts of the case, the relevant Sections 133, 137 and 138 of the Cr.P.C. are reproduced as under :- 133. Conditional order for removal of nuisance. - Whenever a District Magistrate or s Sub Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the state govt. , 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 obstructions 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 Criminal Misc.No.40163-M of 2007 7 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 neighborhood 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, 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, Criminal Misc.No.40163-M of 2007 8 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 (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 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 recreative purposes. Section 137. Procedure where existence of public right is denied. - (1) Where an order is made under section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way river, channel or place, the Magistrate shall, on the appearance before him of the Criminal Misc.No.40163-M of 2007 9 person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under section 138, inquire into the matter. (2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Court ; and if he finds that there is no such evidence, he shall proceed as laid down in section 138. (3) A person who has, on being questioned by the Magistrate under sub-section (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial. 138. Procedure where he appears to show cause. - (1) If the person against whom an order section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons-case. (2) 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 Criminal Misc.No.40163-M of 2007 10 be made absolute without modification or, as the case may be, with such modification. (3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case.” From the perusal of these provisions of law, it is crystal clear that the District Magistrate or Sub Divisional Magistrate or any other Executive Magistrate on receiving the police report or other information and on taking such evidence if he thinks that there is unlawful obstruction or nuisance then he shall make a conditional order. It is not disputed that in the present case, no conditional order has been passed nor the procedure laid down in Sections 137 and 138 of the Cr.P.C., mentioned above, has been adopted. The learned counsel for the respondent has admitted this fact by raising argument that no prejudice has been caused to the petitioner by passing composite order. Whether any such composite order can be passed has been dealt in by various High Courts in authorities T.P.Rajeevan 's case (supra) by Kerala High Court, Executive Officer, Gram Panchayat Kothapalli and another's case (supra) by Andhra Pradesh High Court) and in Mahankali Yellaiah's case (supra) by Gujarat High Court and it has been held that such composite order does not sustain the test of legal scrutiny and the cases were sent back to the District Magistrate/Sub Divisional Magistrate to proceed in accordance with Section 133 of the Cr.P.C. onward. The case of the petitioner is that the Gobar Gas Plant was Criminal Misc.No.40163-M of 2007 11 installed five years prior to the filing of the application under Section 133 of the Cr.P.C. The case of the respondent set up during the course of arguments is that previously the Gobar Gas Plant was in the back side of the property of the petitioner but the same has been removed from the back side and has been affixed at the present place about 8/9 months back. Both the Courts below have not given any finding when the Gobar Gas Plant was installed or whether the same was shifted as argued by counsel for the respondent. In authorities Darshan Singh and another's case (supra) and Karta Ram's case (supra), this court held that proceedings under Section 133 Cr.P.C. can be invoked only in case recently unauthorized construction and not in respect of long standing construction. So, the trial Court has lost sight of this aspect of the case. The learned Sub Divisional Magistrate is require to give a definite finding whether Gobar Gas Plant has been affixed 8-9 months prior to the filing of the petition as per case of respondent or is more than five years old as per case of the petitioner. The learned Sub Divisional Magistrate is also required to give finding whether the nuisance is in respect of public property or private nuisance, keeping in view authorities Ram Avtar and others' case (supra) and Rajappan's case (supra). The argument advanced by the counsel for the respondent that the second revision petition is not maintainable is not helpful to the respondent. No doubt, the second revision is not maintainable but in view of authority Rakesh Kumar and others vs. State of Punjab and others Criminal Misc.No.40163-M of 2007 12 2009 (2) R.C.R.(Criminal) 565, the High Court by invoking the provisions of Section 482 Cr.P.C. can set aside the order of both the Courts below, where there is serious miscarriage of justice and abuse of the process of the court or when mandatory provisions of law have not been complied with. Admittedly, the procedure laid down in Section 133 of the Cr.P.C., for passing the conditional order and thereafter passing the final order has not been adopted. So, in these circumstances there is miscarriage of justice. This objection was raised before the Revisional Court, but it is strange enough that Revisional Court has not even discussed the same in its judgment. So, it can be safely inferred that Revisional Court has not applied its mind properly. In view of the above discussion, both the impugned orders stand set aside and the learned Sub Divisional Magistrate concerned is permitted to proceed afresh in the matter in accordance with law. In my view, both the parties should be given two more opportunities to produce their further evidence, in support of their respective case, if they so desire. Consequently, the petition stands accepted and both the impugned orders stand set aside and the matter is remitted back to the Sub Divisional Magistrate concerned for a fresh decision in accordance with law. However, it is made clear that nothing expressed hereinabove shall be construed as an expression of opinion on the merits of the case. The Sub Divisional Magistrate concerned shall proceed uninfluenced with the observations made above by adopting the correct procedure laid down under Section 133 of the Cr.P.C. onwards. Criminal Misc.No.40163-M of 2007 13 The learned Sub Divisional Magistrate concerned shall conclude the proceedings within six months from the date of appearance of the parties before him. The parties are directed to appear before the learned Sub Divisional Magistrate concerned on 15.11.2010. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE October 29 , 2010. sv Criminal Misc.No.40163-M of 2007 14 Criminal Misc.No.40163-M of 2007 15 Criminal Misc.No.40163-M of 2007 16