Shivraj Singh and anr. Vs. State of M.P. and ors. - Court Judgment

Excerpt:
- - 6. in revision, learned asj declined to interfere by observing that the order for removal of encroachment was well merited in view of the fact that the petitioners had not been able to even deny existence of public path on the land covered by them.orderr.c. mishra, j.1. heard on admission.2. this is a petition under section 482 of code of criminal procedure (for short 'the code'). the petitioners arc aggrieved by the order dated 28-8-2009 passed by first additional sessions judge, ashok nagar, in criminal revision no. 86/2009 affirming the order dated 6-8-2009 passed by sub divisional magistrate, ashok nagar in case no. 12/9/145 containing direction to remove encroachment made by them. in that case, the proceedings, under section 145 of the code, were initiated upon information submitted by sho of p.s. ashok nagar in the form of htagasa bearing no. 7/09, arraigning the petitioners as party no. 1 and the respondent nos. 2 and 3 as party no. 2. it contained averments to the effect that a dispute between the parties concerning the land, whereon the petitioners had raised construction, was likely to cause a breach of peace.3. accordingly, a preliminary order, under section 145(1) of the code, was passed by the sdm requiring the parties to put in written statements of their respective claims as to the subject matter of the dispute. however, none of them came forward to file any such statement.4. taking note of the fact that the matter related to encroachment on a public way resulting in obstruction thereto, learned sdm directed (a) the sho to ensure that construction work at the spot did not continue any further and (b) the tehsildar to submit report after making a local investigation.5. in response, the tehsildar submitted a report indicated that both the petitioners, whose houses were facing each other, had completely covered 15 ft. wide public way by erecting rcc roof thereon and had also closed the door, situated in the north of the house of respondent no. 2, opening towards the road. the sdm, while acting upon the report, directed removal of encroachment forthwith.6. in revision, learned asj declined to interfere by observing that the order for removal of encroachment was well merited in view of the fact that the petitioners had not been able to even deny existence of public path on the land covered by them.7. learned counsel for the petitioners has strenuously contended that revisional court completely overlooked the scope and ambit of the powers conferred on the sdm under section 145 of the code. he is of the view that the sdm had no jurisdiction to pass the order for removal of encroachment in the form of projection on the land in dispute to which even the provisions of section 223(1) of the m.p. municipalities act, 1961 (for brevity 'the act') were not applicable. to buttress the contention, reliance has been placed on the following decisions:(i) municipal council, kukshi v. ramdas haribhai mukati, 1982 jlj 659.(ii) municipal council khargone v. anuradhabai 1983 mpwn 334.8. in ramdas's case (supra), it was held that the expression 'in any public street' as occurring in section 223(1) of the act has to be construed in such a manner as to exclude a case of overhanging encroachment whereas in anuradhabai's case (supra), it was observed that gallery on upper storey could not be treated as obstruction on encroachment upon public street.9. however, the case on hand reflects a distinguishable factual scenario, as reported by tehsildar, the petitioners had covered the public way in its entirety by constructing rcc roof, thereon.10. there is yet another aspect of the matter. nothing in section 145 of the code precludes the sdm from taking action under section 133 of the code where existence of public nuisance is disclosed from the material brought on record. further, as explained by the apex court in municipal council, ratlam v. vardhichand : air 1980 sc 1622, although the power under section 133 of the code is discretionary yet, the judicial discretion has a mandatory import. relevant observations made by justice v.r. krishna iyer, in his inimitable style, may usefully be quoted as under:section 133, cr.pc is categoric, although reads discretionary judicial discretion when facts for its exercise are present, has a mandatory import. therefore, when the magistrate has, before him, information and evidence, which disclose the existence of a public nuisance and, on the materials placed, he considers that such unlawful obstruction or nuisance should be removed from any public place which may be lawfully used by the public, he shall act. thus, his judicial power shall, passing through the procedural barrel, fire upon the obstruction or nuisance, triggered by the jurisdictional facts.11. faced with such a situation, learned counsel for the petitioners, while making reference to the decision of the gauhati high court in sushil ranjan nath v. satyabrata dev 2001 stpl (le-crim) 1049 gau., has submitted that even for exercise of power of removal of any unlawful obstruction, the sdm was required to make two enquiries-- firstly, to determine whether or not there exists any public right in respect of the way etc. and secondly, whether or not there has been obstruction caused on the said way etc. regarding the use of it by the public and these enquiries could not be made simultaneously without complying with the requirements of sections 137 and 133 of the code. however, as pointed out already, none of the petitioners had filed any written statement whereas existence of unauthorized obstruction on a public road was duly established from the report of the tehsildar. the argument that the overhanging projections were not causing any practical inconvenience to the public at large is apparently misconceived. the encroachment in question certainly amounted to a public nuisance.12. the remedy to nuisance are of two kinds-- civil and criminal. further, the remedies under the civil law are of two kinds. one is under section 91 of the code of civil procedure. under it a suit lies and the plaintiffs need not prove that they have sustained any special damage. the second remedy is a suit by a private individual for a special damage suffered by him. there are three remedies under the criminal law. the first relates to the prosecution under chapter xiv of ipc. the second provides for summary proceedings under sections 133 - 144 of the code, and the third relates to remedies under special or local laws see: kachrulal bhagirath agrawal v. state of maharashtra : (2005) 9 scc 36.13. to sum up, even assuming that the order for removal of the encroachments was not strictly justifiable under section 145, it had the legal sanction, as contemplated in section 133 of the code, whereunder the sdm was duty bound to pass such an order, irrespective of the fact that existence of public nuisance was brought on record of the proceedings under section 145 of the code. further, the impugned order of removal was passed only after giving a reasonable opportunity of being heard to the petitioners.14. in this view of the matter, it is not a case of misuse of judicial mechanism or procedure. consequently, no interference under the inherent powers is called for.15. the petition, therefore, stands dismissed in limine. however, nothing contained herein shall affect the right of the petitioners to seek any other remedy in accordance with law.c.c. as per rules.

Judgment:
ORDER

R.C. Mishra, J.

1. Heard on admission.

2. This is a petition under Section 482 of Code of Criminal Procedure (for short 'the Code'). The petitioners arc aggrieved by the order dated 28-8-2009 passed by First Additional Sessions Judge, Ashok Nagar, in Criminal Revision No. 86/2009 affirming the order dated 6-8-2009 passed by Sub Divisional Magistrate, Ashok Nagar in Case No. 12/9/145 containing direction to remove encroachment made by them. In that case, the proceedings, under Section 145 of the Code, were initiated upon information submitted by SHO of P.S. Ashok Nagar in the form of htagasa bearing No. 7/09, arraigning the petitioners as party No. 1 and the respondent Nos. 2 and 3 as party No. 2. It contained averments to the effect that a dispute between the parties concerning the land, whereon the petitioners had raised construction, was likely to cause a breach of peace.

3. Accordingly, a preliminary order, under Section 145(1) of the Code, was passed by the SDM requiring the parties to put in written statements of their respective claims as to the subject matter of the dispute. However, none of them came forward to file any such statement.

4. Taking note of the fact that the matter related to encroachment on a public way resulting in obstruction thereto, learned SDM directed (a) the SHO to ensure that construction work at the spot did not continue any further and (b) the Tehsildar to submit report after making a local investigation.

5. In response, the Tehsildar submitted a report indicated that both the petitioners, whose houses were facing each other, had completely covered 15 ft. wide public way by erecting RCC roof thereon and had also closed the door, situated in the north of the house of respondent No. 2, opening towards the road. The SDM, while acting upon the report, directed removal of encroachment forthwith.

6. In revision, learned ASJ declined to interfere by observing that the order for removal of encroachment was well merited in view of the fact that the petitioners had not been able to even deny existence of public path on the land covered by them.

7. Learned Counsel for the petitioners has strenuously contended that Revisional Court completely overlooked the scope and ambit of the powers conferred on the SDM under Section 145 of the Code. He is of the view that the SDM had no jurisdiction to pass the order for removal of encroachment in the form of projection on the land in dispute to which even the provisions of Section 223(1) of the M.P. Municipalities Act, 1961 (for brevity 'the Act') were not applicable. To buttress the contention, reliance has been placed on the following decisions:

(i) Municipal Council, Kukshi v. Ramdas Haribhai Mukati, 1982 JLJ 659.

(ii) Municipal Council Khargone v. Anuradhabai 1983 MPWN 334.

8. In Ramdas's case (supra), it was held that the expression 'in any public street' as occurring in Section 223(1) of the Act has to be construed in such a manner as to exclude a case of overhanging encroachment whereas in Anuradhabai's case (supra), it was observed that gallery on upper storey could not be treated as obstruction on encroachment upon public street.

9. However, the case on hand reflects a distinguishable factual scenario, As reported by Tehsildar, the petitioners had covered the public way in its entirety by constructing RCC roof, thereon.

10. There is yet another aspect of the matter. Nothing in Section 145 of the Code precludes the SDM from taking action under Section 133 of the Code where existence of public nuisance is disclosed from the material brought on record. Further, as explained by the Apex Court in Municipal Council, Ratlam v. Vardhichand : AIR 1980 SC 1622, although the power under Section 133 of the Code is discretionary yet, the judicial discretion has a mandatory import. Relevant observations made by Justice V.R. Krishna Iyer, in his inimitable style, may usefully be quoted as under:

Section 133, Cr.PC is categoric, although reads discretionary judicial discretion when facts for its exercise are present, has a mandatory import. Therefore, when the Magistrate has, before him, information and evidence, which disclose the existence of a public nuisance and, on the materials placed, he considers that such unlawful obstruction or nuisance should be removed from any public place which may be lawfully used by the public, he shall act. Thus, his judicial power shall, passing through the procedural barrel, fire upon the obstruction or nuisance, triggered by the jurisdictional facts.

11. Faced with such a situation, learned Counsel for the petitioners, while making reference to the decision of the Gauhati High Court in Sushil Ranjan Nath v. Satyabrata Dev 2001 STPL (LE-Crim) 1049 Gau., has submitted that even for exercise of power of removal of any unlawful obstruction, the SDM was required to make two enquiries-- firstly, to determine whether or not there exists any public right in respect of the way etc. and secondly, whether or not there has been obstruction caused on the said way etc. regarding the use of it by the public and these enquiries could not be made simultaneously without complying with the requirements of Sections 137 and 133 of the Code. However, as pointed out already, none of the petitioners had filed any written statement whereas existence of unauthorized obstruction on a public road was duly established from the report of the Tehsildar. The argument that the overhanging projections were not causing any practical inconvenience to the public at large is apparently misconceived. The encroachment in question certainly amounted to a public nuisance.

12. The remedy to nuisance are of two kinds-- civil and criminal. Further, the remedies under the civil law are of two kinds. One is under Section 91 of the Code of Civil Procedure. Under it a suit lies and the plaintiffs need not prove that they have sustained any special damage. The second remedy is a suit by a private individual for a special damage suffered by him. There are three remedies under the criminal law. The first relates to the prosecution under Chapter XIV of IPC. The second provides for summary proceedings under Sections 133 - 144 of the Code, and the third relates to remedies under special or local laws See: Kachrulal Bhagirath Agrawal v. State of Maharashtra : (2005) 9 SCC 36.

13. To sum up, even assuming that the order for removal of the encroachments was not strictly justifiable under Section 145, it had the legal sanction, as contemplated in Section 133 of the Code, whereunder the SDM was duty bound to pass such an order, irrespective of the fact that existence of public nuisance was brought on record of the proceedings under Section 145 of the Code. Further, the impugned order of removal was passed only after giving a reasonable opportunity of being heard to the petitioners.

14. In this view of the matter, it is not a case of misuse of judicial mechanism or procedure. Consequently, no interference under the inherent powers is called for.

15. The petition, therefore, stands dismissed in limine. However, nothing contained herein shall affect the right of the petitioners to seek any other remedy in accordance with law.

C.C. as per rules.