Section Text
1). MAHARASHTRA (1).:
(i) in the first paragraph, for the words, "District Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class" substitute "Presidency Magistrate specially empowered by the State Government in this behalf or a District Magistrate or a Sub-divisional Magistrate".
(ii) in the last paragraph, for the words "to appear before himself or some other Magistrate of the first or second class" substitute "to appear before himself or some other Executive Magistrate." (Bom Act XXIII of 1951, S.2and Schedule).
(2) After the reorganization of the State of Bombay in 1956, the amendments made in Section 133 by the above-mentioned Bombay Act arc extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bombay Act XCVII of 1953. MYSORE :
(i) in sub-section (1), for the words, "a Magistrate of the first class", substitute the words, "a Magistrate of the first class specially empowered by the State Government in this behalf; and (ii) Same as in Maharashtra (l)(ii) above. PUNJAB, HARYANA AND CHANDIGARH :
(i) in the opening paragraph of sub-section (1) and in sub-section (2), for the words "Magistrate", the words, "an Executive Magistrate" shall be substituted', and (ii) in the closing paragraph of sub-section (1) for the words "Magistrate of the first or second class", the words "Executive Magistrate" shall be substituted. (Punjab Act 25 of 1964; 31 of 1966). RAJASTHAN: Same as (1) of Maharashtra. UNION TERRITORIES (except Chandigarh) : Same as that of Punjab. WEST BENGAL :
(i) in the first paragraph, for the words "a Sub-divisional Magistrate or a Magistrate of the first class", substitute the words "a Sub-divisional Executive Magistrate or an Executive Magistrate of the first class" ;
(ii) in the last paragraph, for the words, "some other Magistrate", substitute the words," some other Executive Magistrate". (W. B. Act 8 of l970). Notes The Magistrate before whom the person being proceeded with was directed in the conditional order under Section 133(1) to appear and show cause, can pass final order. 1960 Cr LJ 452 : AIR 1960 All 244. Legality of order.-Where person against whom conditional order was made appeared before the Magistrate but was not questioned whether he denied existence of public right in dispute, order appointing Jury is illegal. 1960 BLJR 349: 1960 Cr LJ 1489: AIR 1960 Pat 539. For legality of order see Section 139-A, infra. 1960 Cr LJ 119 : AIR 1960 Tri 3. Condition for passing order.-The order under Section 133 is not made absolute under Section 140 unless the Magistrate has proceeded under Section 137 or 138 and thereafter under Section 19 after his finding on enquiry that there is no reliable eyidence in support of the party's denial of the public right claimed, and notice in terms of Section 140(1) is to be issued to the person concerned after the order has been made absolute. 1960 Cr LJ 334: AIR 1960 Cal 157. Mere causing inconvenience to the traffic by the obstruction is not enough for passing an order under Section 133. 1959 Cr LJ 1160 : AIR 1959 Cal 599. As soon as a neighbour apprehends danger, the conditions of Section 133 are fulfilled. 1958 Raj LW 310: 1959 Cr LJ 235 : AIR 1959 Raj 44. The party against whom a conditional order is made under Section 133 must choose one of the two courses; he should either show cause against the order or ask for the appointment of a Jury. He cannot have recourse to both the courses. 1960 BLJR 349 : 1960 Cr LJ 1489: AIR 1960 Pat 539. An encroachment of long standing may be ordered to be removed, even though at one time its removal was not thought urgent, change of circumstances may have regarded its removal urgent. Such an action can be taken under Section 133 even though the encroachment or nuisance had been in existance for a reasonably long time on the ground of genuine emergency. 1964 ALJ 629. A Magistrate before whom proceedings have been initiated under Section 133 and who has made a conditional order can direct the parties to appear before some other Magistrate of the first or second class but he cannot direct a party to appear before a Magistrate for the limited purpose of enquiry under Section 139-A. The Magistrate who gets seized of the case will be competent to dispose of the case finally either by setting aside the conditional order or by modifying it under Section 133. AIR 1963 All 27.
(1) Whenever a District Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class considers, on receiving a police report or other information and on taking such evidence (if any) as he thinks fit,- that any unlawful obstruction or nuisance should be removed from any way, river or channel which is or may be lawfully used by the public, or from any public place, or 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 keeping thereof regulated, or that the construction of any building, or the disposal of any substance, as likely to occasion conflagration or explosion, should be prevented or stopped, or 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 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 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.__ to remove such obstruction or nuisance ; or 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 to prevent or stop the erection of, or to remove, repair or support, such building, tent or structure ; or to remove or support such tree ; or to alter the disposal of such substance; or to fence such tank, well or excavation, as the case may be; or 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 Magistrate of the first or second class, at a time and place to be fixed by the order, and move to have the order set aside or modified in the manner hereinafter provided.
(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.]