Research › Search › Judgment

Orissa High Court · body

2009 DIGILAW 305 (ORI)

Pravakar Samanta v. Narendra Padhi

2009-04-07

R.N.BISWAL

body2009
JUDGMENT R.N. BISWAL, J. — The petitioner and Opp.party No.2 are opp.parties and Opp.party No.1 is the petitioner in a proceeding under Section 133 of Cr.P.C. in CRLMC No.30 of 2007 pending in the Court of learned Sub-Divisional Magistrate, Jajpur. 2. On 19.1.2007 Opp.party No.1, an advocate, filed the aforesaid CRLMC alleging inter-alia that he has his dwelling house as well as office over plot No.588/1093 appertaining to Khata No.132 of Mouza Naharpur. The present petitioner and opp.party No.2 are stacking Chips, Bajuri and asbestos etc. on the Govt. land adjoining to the aforesaid plot of Opp.party No.1 as well as on some portion of his land for business purpose caus¬ing dust of minerals to enter his premises creating an unhealthy atmosphere and public nuisance in the locality. Hence, the pro¬ceeding under Section 133 of Cr.P.C. for necessary direction to the petitioner and Opp.party No.2 to remove the aforesaid materi¬als said to have been stacked near the premises of Opp.party No.1. 3. Learned Sub-Divisional Magistrate, Jajpur on the same date i.e. on 19.1.2007 directed the Tahasildar and Inspector In-charge, Jajpur Police Station to enquire into the matter and submit their report. On 9.3.2007, considering the report submit¬ted by Addl. Tahasildar, Jajpur, the Sub-Divisional Magistrate, recorded his satisfaction regarding existence of apprehension of serious breach of peace and while initiating the proceeding under Section 133 of Cr.P.C. directed the petitioner and the Opp.party No.2 either to remove the materials said to have been stacked over the land adjoining the plot of Opp.party No.1 within 15 days or to appear and show cause as to way the said order should not be made absolute against them. 4. In response to the said notice, the petitioner and Opp.party No.1, filed their respective show cause on the date fixed i.e. on 30.3.2007, contending inter-alia that the proceed¬ing was not maintainable since C.S. No.66 of 2007 filed by the present petitioner seeking declaration of title confirmation of possession and in the alternative recovery of possession in re¬spect of Plot No. 588/1093, which was wrongly recorded in the name of Opp.party No.1 in the major settlement is pending dispos¬al in the Court of learned Civil Judge (Sr. Division), Jajpur. The petitioner and Opp.party No.2 in their show cause further contended that, the dispute being purely civil in nature and that too, between two individuals, the proceeding under Section 133 of Cr.P.C. was not maintainable. Division), Jajpur. The petitioner and Opp.party No.2 in their show cause further contended that, the dispute being purely civil in nature and that too, between two individuals, the proceeding under Section 133 of Cr.P.C. was not maintainable. They specifically stated in the show cause that they had been doing their business since last 25/30 years without causing any inconvenience to the general public including Opp.party No.1. It is their further case that the allegation made by Opp.party No.1 comes under the purview of Environment (Protection) Act, 1986 and therefore, initiation of the proceeding under Section 133 of Cr.P.C. is not maintainable. Accordingly, petitioner and Opp.party No.2 prayed to quash the proceeding. They also filed a separate petition challenging the main¬tainability of the proceeding. After hearing learned counsel for both sides regarding the maintainability of the proceeding, learned Sub-Divisional Magistrate, Jajpur vide order dated 11.5.2007 held that the proceeding was maintainable. 5. Being aggrieved with the said order, petitioner No.1 and Opp.party No.1 preferred a Revision before learned Addl. District and Sessions Judge, Jajpur in Criminal Revision No.15 of 2007. However, no order could be passed due to prolonged absence of the Presiding Officer. In the meantime, learned Sub-Divisional Magistrate, Jajpur passed another order on 2.7.2007 prohibiting petitioner and Opp.party No.2 from loading and unloading Chips, Bajuri etc. over the disputed land until further orders. So, the petitioner filed the present CRLMC under Section 482 of Cr.P.C. challenging the order dated 11.5.2007 and 2.7.2007 passed by the learned Sub-Divisional Magistrate, Jajpur and also prayed to quash the entire proceeding filed under Section 133 of Cr.P.C. 6. Learned counsel for the petitioner submitted that in view of the provision contained under Section 24 of the Environ¬ment (Protection) Act, 1986 (hereinafter referred as ‘the Act’) the proceeding under Section 133 of Cr.P.C. is not maintainable. Section 24 of the Act reads as follows : 24. Effect of other laws.- (1) Subject to the provisions of Sub-section (2), the provisions of this Act and the rules or orders made therein shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act. Section 24 of the Act reads as follows : 24. Effect of other laws.- (1) Subject to the provisions of Sub-section (2), the provisions of this Act and the rules or orders made therein shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act. (2) Where any act or omission constitutes an offence punish¬able under this Act and also under any other Act then the offend¬er found guilty of such offence shall be liable to be punished under the other Act and not under this Act.” This provision is not inconsistent with the provision con¬tained under Section 133 of Cr.P.C. They do work separately on their own field and do not overlap each other. Therefore, I am not in one with the submission of learned counsel for the peti¬tioner in this regard. 7. Learned counsel for the petitioner, next drew my atten¬tion to para 4 of the petition filed under Section 133 of Cr.P.C. before the Sub-Divisional Magistrate, Jajpur by the Opp.party No.1 and the conditional order dated 9.3.2007 passed by the learned Sub-Divisional Magistrate, Jajpur and stated that there is no whisper of any public nuisance in either of them. Para¬graph-4 of the petition U/s. 133 of Cr.P.C. reads as follows : “That if such type of overt act by the opposite party members (continue) the petitioner and his family members will suffer irreparable loss to their life and the opposite party members intentionally passing the latrine and urinal water from their Building to land of the petitioner.” This shows that due to stacking of Chips., Bajuri and asbes¬tos etc. including loading and unloading thereof and flowing of latrine and urinal water from the building of petitioner and Opp.party No.2 to the building of Opp.party No.1, he is facing much inconvenience and injury to his health and health of his family members. Order dated 9.3.2007 passed by the Sub-Divisional Magistrate, Jajpur reads as follows : “09.03.2007 - Perused the report of the Tahasildar, Jajpur submitted vide his letter No.1173 dated 1.3.2007 on petition filed by the petitioner Narendra Kumar Padhi s/o Late Bhagaban Padhi of village-Naharapur P.S./Dist. Jajpur, Heard the petition¬er. Whereas it appears from the report of the Tahasildar, Jajpur that the dwelling house of the petitioner is adjacent to the plot of o.ps. That the O.P. have constructed building over their plot for commercial purpose trading cement, Rod, Chips, Bajuri etc. Jajpur, Heard the petition¬er. Whereas it appears from the report of the Tahasildar, Jajpur that the dwelling house of the petitioner is adjacent to the plot of o.ps. That the O.P. have constructed building over their plot for commercial purpose trading cement, Rod, Chips, Bajuri etc. which is dust of mineral are always entering into dwelling house of the petitioner regularly and creating unhealthy situa¬tion & public nuisance. That the O.P. members also intentionally passing the latrine & urinal water from their building to land of the petitioner. That the petitioner raised his problem in proper forum, but no action for which there is breach of peace in the locality. I am satisfied that there is apprehension of serious breach of peace. I, therefore hereby order U/S. 133 Cr.P.C. that the O.P. members should remove such obstruction hoarding Chips., Bajuri & Asbestos over adjourning plots of the petitioner within 15 days from the date of issue of this proclamation and if they object to do so to appear in my Court on 30.3.07 at 10 A.M. and to show cause as to why the order should not be made absolute against them.” There is nothing in this order to show that to prevent public nuisance, the Sub-Divisional Magistrate, Jajpur initiated the proceeding under Section 133 of Cr.P.C. Furthermore, as quoted above, the order dated 9.3.2007 shows that the Sub-Divisional Magistrate was satisfied on the report of the Tahasil¬dar dated 1.3.2007, that there were grounds to initiate the proceeding under Section 133 of Cr.P.C. But the report of the Tahasildar dated 1.3.2007 shows that there was possibility of the Opp.party No.1 being affected by dust particulars because of stacking of Chips, Bajuri etc. by the petitioner and Opp.party No.2 over the plot adjoining the house of Opp.party No.1 This report is also silent with regard to public nuisance. 8. As required under Section 133 (1)(b) of Cr.P.C., when¬ever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate especially empowered by the State Government, on receiving a report of a police officer or other information, is satisfied that the conduct of any trade or occu¬pation or the keeping of any goods or merchandise is injurious to health or physical comfort of the community and that such trade or occupation should be prohibited, such Magistrate can make a conditional order requiring the person carrying on such trade or occupation etc. within a time to be fixed in the order, to remove such goods or merchandise. Section 133 of Cr.P.C. falls under Chapter-X of Cr.P.C., which deals with maintenance of public order and tranquillity. So the Executive Magistrate has power to initiate a proceeding under Section 133 of Cr.P.C. if there is public nuisance and it is not a device to settle private civil dispute. Since there is nothing in the report of the Addl. Taha¬sildar to show that public nuisance has been caused by the peti¬tioner and Opp.party No.2 in course of their trade, there is no reason how the Sub-Divisional Magistrate, Jajpur was convinced as found in his order dated 11.5.2007 about existing of such public nuisance. As it appears from the said order, perhaps the Sub-Divisional Magistrate thought that inconvenience caused to a particular person amounts to public nuisance, which is absolutely wrong. In the decision Ch. Prasana Kumar Patro v. Sub-divisional Magistrate, Bhanjanagar and others, 1983 (II) OLR 585, a Divi¬sional Bench of this Court held as follows : “In order to bring a trade or occupation within the opera¬tion of this section, it must be shown that the interference with public comfort, was considerable and a large section of the public was affected injuriously. The word ‘community’ in Clause (b) of Section 133(1) cannot be taken to mean residents of a particular house. It means something wider, that is, the public at large or the residents of an entire locality. The very fact that the provision occurs in a Chapter with “Public Nuisances” is indicative of this aspect.” In absence of public nuisance, the learned Sub-Divisional Magistrate ought not have initiated the proceeding under Section 133 of Cr.P.C., particularly when civil disputes are sub-judice between the parties in respect of the dispute land. As quoted earlier, the conditional order dated 9.3.2007 passed by the learned Sub-Divisional Magistrate shows that as he was satisfied that there was apprehension of serious breach of peace, he initiated the proceeding under Section 133 of Cr.P.C. Apprehension of breach of peace cannot give rise to a proceeding under Section 133 of Cr.P.C. So, the very initiation of proceed¬ing is also illegal on that ground. Accordingly, the CRLMC is allowed and the Criminal Misc. Case No. 30 of 2007 pending in the Court of learned Sub-Divisional Magistrate, Jajpur is hereby quashed. CRLMC allowed.