KOTHARY JAYANTILAL RAMJI v. STATE — 1989 DIGILAW 83 (GUJ)

P. M. CHAUHAN, J. ( 1 ) PETITIONER who in an occupant of the cabin constructed by him with the permission of the respondent No. 3 Bhuj Municipality has by this writ position prayed for a direction to the respondents to rebuild the cabin of the petitioner bearing Municipal Shop No. 3/1-16 situated near Vaniawad Naka at Bhuj as according to the petitioner the respondent No. 2 Assistant Collector and Sub-Divisional Magistrate Bhuj illegally and unauthorisedly removed the cabin in exercise of the powers under Sec. 133 Code of Criminal Procedure. The petitioner was granted the land admeasuring about 7 Ft. X 4 1/2 Ft. and on which the petitioner had constructed a plat-form and was running a Pan Shop but subsequently in the year 1980 with the permission of the respondent No. 3-Bhuj Municipality he constructed the cabin on that land having the bricks wall on one side and was carrying his business of Permit Biscuits etc. in it and the last rent was paid by the petitioner on 15/11/1988 for the period from April 1 198 8/03/1989 The petitioner was allowed to occupy the land certain conditions specified in the license (permits) (Annexures A and B) issued to him. From the documents produced by the petitioner it is apparent that he constructed the cabin with the permission of the respondent No. 3 and was carrying the business with the permission of the respondent No. 3. It transpires that the responddent No. 2 who is the Sub-Divisional Magistrate was informed by the Police that certain constructions in Bhuj city were obstructing the traffic and were causing nuisance and therefore he wrote a letter dated 3/11/1988 to the Chief Officer of the respondent No. 2 Municipality calling upon him to remove such constructions which caused obstruction before 5/11/1988 and appear before him on that day. It transpires that the respondent No. 3 Municipality or the Chief Officer did not take any action in pursuance of the directions by the respondent No. 2. The respondent No. 2 without taking any further action went to the cable of the petitioner along with the Police on 136 988 and demolished it without giving any notice to the petitioner. It transpires that the respondent No. 3 Municipality or the Chief Officer did not take any action in pursuance of the directions by the respondent No. 2. The respondent No. 2 without taking any further action went to the cable of the petitioner along with the Police on 136 988 and demolished it without giving any notice to the petitioner. It transpires that before the action was taken by the respondent No. 2 the petitioner had sensed it and therefore on that day he filed a Regular Civil Suit No. 452 of 1988 in the Court of Civil judge (S. D) praying for interim injection not to dispossess the petitioner illegally or forcibly or to demolish the cabin and the Court had directed to maintain status quo but before the said order could be passed the respondent No. 2 got the cabin demolished. The petitioner has by this writ petition challenged the action of the respondent No. 2 contending that the respondent No. 2 had no such authority to demolish such construction which was lawfully constructed and in occupation of the petitioner without following the procedure prescribed by law. ( 2 ) SHRI H. B. Antani learned Assistant Government Pleaded appearing for the respondents Nos. 1 and 2 states that the respondent No. 2 had taken action under the provisions office. 133 Code of Criminal Procedure but frankly conceded that except for writing the letter dated 3/11/1988 to the Chief Officer of the Municipality as stated above the respondent No. 2 had not served show cause notice to the petitioner or had not followed the procedure prescribe under Sec. 1333 Code of Criminal Procedure. Shri Antani however maintains that action is taken under the provisions of Sec. 133 Code of Criminal Procedure. Shri Antani however maintains that action is taken under the provisions of Sec. 133 Code of Criminal Procedure. ( 3 ) FOR taking action for the removal of the unlawful construction or nuisance under Sec. 133 and other relevant Sections of the Code of Criminal Procedure the District Magistrate or the Sub-Divisional Magistrate is required to follow the prescribed procedure In case the District Magistrate or Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government receive the report of a police officer or is given information in any other manner that any unlawful obstruction or nuisance should be removed from any public place or from any other way river or channel which is or may be used by the public such Magistrate has to make a conditional order requiring the persons causing such obstruction or nuisance to remove the obstruction or nuisance. In case such period objects he should be directed to appear before such Magistrate or some other Executive Magistrate subordinate to him at the time and place to be fixed by the order arid to show cause as to why the order should not be made absolute. This it the specific mandatory provision lacquered to be followed by Sub-Divisional Magistrate intending to pass an order to remove the obstruction. The Sub-Divisional Magistrate has there- after to follow the procedure prescribed under the provisions of Secs. 134 135 and 141 Criminal Procedure Code as the case may be. The order is required to be served to such persons in the manner provided for the service of summons. The person against whom such order is made has to perform within the time and in the manner prescribed in the order the act directed by such order or to appear in accordance with such order to show cause against the same. As provided in Sec. 136 Criminal Procedure Code if such person does not perform such act or appear and show cause he shall be liable to the penalty prescribed in that behalf in Sec. 188 of the Indian Penal Code and the order can be made absolute by the competent authority. If the public right is denied then the Magistrate has to inquire in the matter and follow the provisions of Sec. 137 Code of Criminal Procedure. If the public right is denied then the Magistrate has to inquire in the matter and follow the provisions of Sec. 137 Code of Criminal Procedure. If the person against whom the order under Sec. 133 is made appears and shows cause against the order the Magistrate has to take the-evidence in the matter as in the Summons Case arid in case the Magistrate is satisfied that the order is reasonable and proper he may make the order absolute without modification or with such modification as may be necessary As provided in Sec. 138 Code of Criminal Procedure in case the Magistrate is not satisfied no further proceeding should be taken in the case. If required that then Magistrate may direct local investigation as provided in Sec. 139 Code of Criminal Procedure and also may issue written in truth tions. In case the order is made absolute under Sec. 136 and 138 Criminal Procedure Code the Magistrate should give notice of the same the person against whom the order is made and he is also empowered to further require such person to perform the Act as directed by the order within a time to be fixed in the notice and inform such person that in case of disobedience, he will be liable to the penalty provided by sec. 188 of the Indian penal code. Under sub-sec (2) of sec. 141 code of criminal Procedure such magistrate has power to cause such act to be performed ( 4 ) SUB-SEC. (2) of sec. 141 code of criminal procedure provide as under:"if such act is not performed within the time fixed, the magistrate may cause it to be performed, and may recover the costs of performing it, either by the sale of any building, goods or other property removed by his order, or by the distress and sale of any other movable property of such person within or without such magistrates local jurisdiction and if such other property is without such juridiction, the order shall outhorise its attachment and sale when endorsed by the magistrate within whose local jurisdiction the property to be attached is found" ( 5 ) SUB-SEC. (3) of sec. 141 protects the act done in good faithand sec. 141 specifically prohibits the suit against such act done in good faith. The district magistrate if at all intended to take acrtion under the provisions of sec. (3) of sec. 141 protects the act done in good faithand sec. 141 specifically prohibits the suit against such act done in good faith. The district magistrate if at all intended to take acrtion under the provisions of sec. 133 read with sec. 136 or under sec. 133 read with sec. 137 or138 code of criminal procedure, he should follow the prscribed procedure as discussed above. Admittedly the respondent No. 2 did not follow the procedure and he behaved in highhanded manner ignoring all mandatory provisions of law. It petitioner was leased the land vested in the municipality and was in occupation of it for the last many years and not only that, but he was allowed the contruction by the respondednt No. 3 Municipality. Insuch a case, the respondent No. 2, therefore, should have ascertained the legal right of he petitioner to occupy the land and should have ascertained whether the petitioner was in authorised possession and such construction caused obstruction to the public. Even after being satisfied against the petitioner he should have foolowed the prescribed procedure and should not have demolished the cabin causing damage to the petitioner. The act of the respondent No. 2 being arbitrary, unauthourised and not proper cannot be substained in a democratic society governed by rule of law and protected by constitution of India. The petitioner is, therefore intitled to Constitutional remedy by writ under Art. 226 Constitution of India. Under normal circumstances where order is passed under Sec. 133,136, 138 or 141 Code of Criminal Procedure the order is revisalble under code of criminal procedure but in this matterexcept f\referrubg tgat irder us oassed ybder sec, 133 code of criminal procedure , the mandartory procedure is violated and arbitrary and unauthorised act is committed and therefore this court should exercise power under Arts. 226 and 227 Constitution of India. ( 6 ) MISS B. Y. Mankad for the respondent No. 3- Muncipality has adopted a neutral attitude in the matter. Obviously the Municipality could not have supported the act of the respondent No. 2 as the Validity had autorised the petitoner to occupy the land. ( 7 ) INSPITE of the fact that the act of demolition of the cabin of the petitioner as unauthorized arbitrary and not proper the question however arises as to what relief the petitioner should be given in this particular matter. ( 7 ) INSPITE of the fact that the act of demolition of the cabin of the petitioner as unauthorized arbitrary and not proper the question however arises as to what relief the petitioner should be given in this particular matter. Petitioner has prayed for direction to the respondents to rebuild the cabin of the petitioner at the cost of the respondents are to direct the respondents to pay compensation to the petitioner for the damages caused to the petitioner due to storage of his business due to the demolition of the cabin. The mandate to rebuild or to construct the cabin should not be issued by this Court as the period of lease is over on 31/03/1989 The petitioner has not produced any document to show that the lease period is continued after 31/03/1989 ( 8 ) MR. N. K. Thakkar learned Advocate for the petitioner states that when the cabin was demolished he was in lawful possession and after that on 13/11/1988 the Court had passed an order of status quo and therefore also he can be said to be in lawful possess:on of the property. On the day on which the cabin was demolished he was admittedly in lawful possession; but while considering the prayer for direction to rebuild the cabin this Court has to consider as to whether The can be said to be the lessee of the properly and could ave lawfully made construction at present. As the lease period in over it cannot be held that he has now the right to make lawful construction on the property. If the petitioner cannot make construction lawfully on the land for which lease period is over the direction should not be issued to the respondents Nos. 1 and 2 to construct the cabin for the petitioner. ( 9 ) IT is also not the case of the petitioner that the lease period is continued after 31/03/1989 The petitioner has not stated specifically as to what damage was caused to ham for the loss of his business. part from that no such damage can be assessed by this Court while exercising jurisdiction under Art. 226 of the Constitution of India. The petitioner that-fore should be left to civil remedy if at all available No belief for the direction to construct his cabin or for the damages therefore can be granted by this Court in this writ petition. part from that no such damage can be assessed by this Court while exercising jurisdiction under Art. 226 of the Constitution of India. The petitioner that-fore should be left to civil remedy if at all available No belief for the direction to construct his cabin or for the damages therefore can be granted by this Court in this writ petition. ( 10 ) WITH these observations the Rule is made absolute to that extent with cost against the respondents Nos. 1 and 2. (KMV) Rule discharged .