The court affirms that Section 133 Cr.P.C. cannot be invoked without established urgency for public nuisance, emphasizing adherence to procedural requirements.

ORDER :

SANJEEV NARULA, J.

1. The present petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 482 of the Code of Criminal Procedure, 1973, [“Cr.P.C.”]) read with Article 227 of the Constitution of India, assails order dated 7^th April, 2010, [“the impugned order”] passed by the ASJ (NW-II), Rohini Courts. Through the impugned order, the ASJ dismissed the revision petition No. 326/2009 preferred by the Petitioner against the order dated 21^st May, 2009 of the Sub-Divisional Magistrate (SDM), Saraswati Vihar, Kanjhawala, Delhi, in Case No. 2162/2004, whereby proceedings initiated under Section 133 of the Cr.P.C., on the complaint of the Petitioner, were dropped.

2. Briefly the facts of the case are as follows:

2.1. The Petitioner lodged a complaint alleging that Respondents No.2 to 4 had constructed a septic tank on public land at Khasra Nos. 1180, 1181,  1182, 1194/2 and 1196/2, situated within the extended Lal Dora Abadi of Village Karala, thereby causing public nuisance.

2.2. Acting on the complaint, the SHO, P.S. Kanjhawala, forwarded a kalandra dated 22^nd August, 2004 to the SDM, Saraswati Vihar. By order dated 20^th February, 2007, the then SDM noted that no conditional order under Section 133 Cr.P.C. had been passed earlier, and accordingly directed the Halqa Patwari to furnish a detailed report on the alleged encroachment. The matter was listed for 9^th April, 2007, though no order sheet for that date is on record.

2.3. The Halqa Patwari submitted his report on 20^th June, 2007 indicating that a bathroom and septic tank had been constructed within the passage on Khasra No. 1182.

2.4 On 2^nd August, 2007, the successor SDM recorded that a conditional order under Section 133 of Cr.P.C. had to be issued on the basis of the said report.

2.5. However, on 9^th August, 2007, instead of issuing the conditional order as envisaged, the successor SDM proceeded to pass an absolute order under Section 133 of Cr.P.C., directing removal of the structure in Khasra No.1182 within seven days.

2.6. Against the said order, Respondents No. 2 to 4 preferred a revision petition before the ASJ, Rohini Courts, Delhi (Rev. Petition 15/2008). The said petition was decided by judgement dated 12^th January, 2009, holding that the order dated 9^th August, 2007 was contrary to law, having been passed in absolute terms, without following the mandatory procedure under Section 138 Cr.P.C. Consequently, the said order was set aside and the matter was remanded back for reconsideration and passing of a conditional order to the concerned SDM. The relevant portion of the judgement dated 12^th January, 2009, reads as follows:

“However, in the present case, the perusal of the order of SDM reveals that vide order dated 20.2.07, the Ld. SDM (S.V.) had passed an order that the perusal of the case file, revealed that no conditional order u/s 133 Cr.P.C. was passed by the then SDM directing the respondent to remove the alleged unlawful obstruction made by them on public path/road and the case was continuing for the last two years on the strength of notices and orders on the proceeding sheets and therefore vide said order the said SDM directed the Halqa Patwari to submit a detailed report regarding the alleged encroachment on the public path/road adjacent to plot/khasra no.1181-82/1194, 1183-1195 in the revenue estate of village Karala, Delhi and the Halqa Patwari was directed to submit his report before 15.3.2007 and the case was listed for 9.4.2007 for further proceedings.

However, a perusal of the case file reveals that there is no order sheet dated 9.4.2007 on t