Constructing a wall on public land constitutes nuisance; summary proceedings under Section 133 Cr.P.C. require no formal notice for local investigations.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

1. Heard the parties.

2. This Writ Petition has been filed invoking the jurisdiction of this Court under Article 226 of the Constitution of India with a prayer for quashing the conditional order dated 18.01.2023 and consequently the final order dated 11.05.2023 passed in Misc. Case No. 04 of 2023 which is a proceeding under Section 133 Cr.P.C. whereby and where under, the learned Sub Divisional Magistrate, Dhalbhum, Jamshedpur directed the petitioner to remove the constructed wall by 19.05.2023 under Section 138 (2) of Code of Criminal Procedure as well as direction/prohibitory order under Section 143 of Code of Criminal Procedure directing the petitioner not to repeat the said action of construction of wall. Prayer has also been made to quash the order dated 24.05.2024 passed by the learned Additional Sessions Judge-V, East Singhbhum at Jamshedpur in Criminal Revision No. 156 of 2023 whereby and where under, the learned Additional Sessions Judge-V, East Singhbhum at Jamshedpur dismissed the Criminal Revision No. 156 of 2023 and affirmed the said final order dated 11.05.2023 passed by the learned Sub Divisional Magistrate, Dhalbhum, Jamshedpur.

3. The brief fact of the case is that the respondent nos.4 to 6 of this writ petition filed a petition dated 18.11.2022 alleging that the writ petitioners have encroached a public land used as a road by constructing a boundary wall over the same causing disturbance and inconvenience to the residents of the locality. Consequent upon receiving the said application dated 18.11.2022, the Sub Divisional Magistrate, Dhalbhum, Jamshedpur directed Executive Magistrate, Dhalbhum, Jamshedpur to carry out the spot investigation and the Executive Magistrate submitted a report on 06.01.2023, intimating therein that the local persons informed that there was a public road in the locality from 2004 and illegal construction was earlier made over the same by the petitioner no.1 which was removed in 2018, but the same has again been encroached by the petitioner by construction of boundary wall. The movement of four-wheeler vehicles has been hampered. The writ petitioner no.1 has constructed 12 feet long and 3 feet height wall. Consequent upon the said report dated 06.01.2023, the Sub Divisional Magistrate, Dhalbhum, Jamshedpur passed a conditional order dated 18.01.2023 directing the petitioners to either remove the construction wall within seven days or to appear before the court of learned Sub Divisional Magistrate, Dhalbhum, Jamshedpur and to show cause as to why this order should not be enforced.

4. The writ petitioner no.1 contended before the Sub Divisional Magistrate, Dhalbhum, Jamshedpur that despite being in lawful possession of the private property of the writ petitioners since 1998, some residents of the basti (hutments) had been attacking, disturbing and attempting to vacate the petitioners since 2005 and the writ petitioners have been harassed in many ways and means. During the proceeding of said Misc. Case No. 04 of 2023, the Circle Officer, Jamshedpur was directed to conduct a local enquiry to the same and file a report in terms of Section 139 (a) of Code of Criminal Procedure. The Circle Officer, Jamshedpur submitted his report dated 22.03.2023 and intimated that the writ petitioners have constructed a 12 feet boundary wall and encroached upon the public land which was connecting road no. 1 and 2. It was also reported that the place of occurrence land encroached upon was a public land and it stood recorded in the name of Anabad Bihar Sarkar. The writ petitioners also challenged the proceeding initiated under Section 133 Code of C