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2006(1) JLJ 191
S.S. Dwivedi, J.
Kunoo v. Sewalal and another
Miscellaneous Criminal Case No. 3206 of 2002; against the order of III Additional Sessions Judge Chhatarpur:
passed in Cri. Revn. No. 21 of 2002;
Decided on : 19.12.2005
The non-applicant No.1, Sewalal filed a reponat PS Rajnagar, that the present petitioner Kunoo obstructed the common way by constructing a wall on Survey Nos. 1258 and 1260 situated at village Talgaon and thereby obstructing the common way of the agriculturists of the village which constitutes public nuisance. On this report. the police, Rajnagar filed a complaint under section 133 of the CrPC before the SDM, Rajnagar. After giving opportunity to both the parties, the learned SDM, Rajnagar, vide impugned order dated 25.01.2002 ordered for the removal of the concerning wall constructed by the present petitioner within a week. Feeling agglieved by the aforesaid order. the petitioner came up in revision under section 397, CrPC which has been decided by the Third Additional Sessions Judge. Chhatarpur in Criminal Revision No. 21/02 vide order dated 17.05.2002 and dismissed the revision petition. Again feeling aggrieved by the aforesaid order passed by the Court below, the petitioner came up before this Court under section 482, CrPC for the quashment of the entire proceedings registered under section 133 of CrPC. [Para 2
Held: On perusal of the aforesaid provisions of section 133 CrPC it is apparent that for orders passed by SDM or District Magistrate with regard to the obstruction on the public way the requirement is that it should be on the public place or on the public way.
As stated hereinabove, admittedly the land Survey Nos. 1258 and 1260 belongs to the ownership of the present petitioner, therefore, this land cannot be said to be the public place or pubic way for the common use. If for the convenience of the villagers, the Government wants to use this land as a public way in that case the State Government has right to acquire the land for the public purpose as per the provisions of Land Acquisition Act but the wall constructed by the petitioner cannot be removed under the powers conferred under section 133 of the Cr PC. 1994(2) Vidhi Bhasvar 171 relied on. [Paras 8 & 9
naM çfØ;k lafgrk] 1973& &/kkjk 133& &ck/kk gVkbZ tkuk& &ck/kk gVkbZ tkuk& &ck/kk yksd ekxZ ;k Hkwfe ij gksuk pkfg,& &lkekU ekxZ ij ck/kk Mkyus okyk] futh Hkwfe ij fuekZ.k& &gVkk ugha tk ldrkA
vukosnd Ø-1 lsokyky us iqfyl Fkkuk jktuxj esa fjiksVZ Qkby dh fd çLrqr ;kph dquw us xzke rkyxk¡o fLFkr losZ{k.k Ø- 1258 vkSj 1260 ij nhokj fufeZr djds lkekU; ekxZ esa ck/kk mRiUu dh gS vkSj mlds }kjk xk¡o ds Ñ"kdksa ds lkekU; ekxZ esa ck/kk Mkyh gS ftlls yksd U;wlsUl dk vijk/k xfBr gksrk gSA bl fjiksVZ ij iqfyl] jktuxj us mi[kaM eftLVªsV] jktuxj ds le{k naM çfØ;k lafgrk dh /kkjk 133 ds v/khu ifjokn Qkby fd;kA nksuksa i{kksa dks volj nsus ds i‘pkr fo}ku mi[kaM eftLVªsV] jktuxj us vkf{kIr vkns‘k fnukad 25-01-2002 }kjk çLrqr ;kph }kjk fufeZr lacaf/kr nhokj ,d lIrkg ds Hkhrj gVk, tkus dk vkns‘k fn;kA iwoksZDr vkns‘k ls O;fFkr gksdj ;kph us naM çfØ;k lafgrk dh /kkjk 397 ds v/khu iqujh{k.k ds fy, vkosnu fd;k ftls r`rh; vij ls‘ku U;k;/kh‘k] Nrjiqj }kjk nkafMd iqujh{k.k Ø- 21@02 esa vkns‘k fnukad 17-05-2002 }kjk fofuf‘pr fd;k x;k vkSj iqujh{k.k vthZ [kkfjt dj nh xbZA iqu% fupys U;k;ky; }kjk ikfjr iwoksZDr vkns‘k ls O;fFkr gksdj ;kph naM çfØ;k lafgrk dh /kkjk 133 ds v/khu jftLVªhÑr laiw.kZ dk;Zokgh ds vfHk[kaMu ds fy, naM lafgrk dh /kkjk 482 ds v/khu bl U;k;ky; ds le{k vk;k gSA ¼iSjk 2½
vfHkfu/kkZfjr % naM çfØ;k lafgrk dh /kkjk 133 ds iwoksZDr mica/kksa ds ifj‘khyu ls çdV gS fd yksd ekxZ ij ck/kk ds laca/k esa mi[kaM eftLVªsV ;k ftyk eftLVªsV }kjk ikfjr vkns‘kksa ds fy, visf{kr gS fd og yksd LFkku ij ;k yksd ekxZ ij gksuk pkfg,A
,rfLeuiwoZ ;Fkk mfYyf[kr] LohÑr :i ls Hkwfe losZ{k.k Ø- 1258 vkSj 1260 çLrqr ;kph ds LokfeRo dh gS vr% ;g Hkwfe lkekU; mi;ksx ds fy, yksd LFkku ;k yksd ekxZ ugha dgh tk ldrhA ;fn xzkeokfl;ksa dh lqfo/kk ds fy, ljdkj bl Hkwfe dk mi;ksx yksd ekxZ ds :i esa djuk pkgrh gS rc] ml n‘kk esa] jkT; ljdkj dks Hkwfe vtZu vf/kfu;e ds mica/kksa ds vuqlkj yksd ç;kstu ds fy, Hkwfe vftZr djus dk vf/kdkj gS( ijarq ;kph }kjk fufeZr nhokj naM çfØ;k lafgrk dh /kkjk 133 ds v/khu çnÙk ‘kfDr;ksa ds v/khu ugha gVkbZ tk ldrhA 1994 ¼2½ fof/k HkkLoj 171 voyafcrA ¼iSjk 8 ,oa 9½
1. This is a petition under 482 Cr PC filed by the petitioner feeling aggrieved by the order dated 17.05.2002 passed by Third Additional Sessions Judge Chhatarpur, whereby the order dated 25.01.02 passed by SDM Rajnagar in Case No. 4/02 has been confirmed.
2. The brief facts of the case are that the non-applicant No.1, Sewalal filed a report at PS Rajnagar that the present petitioner Kunoo obstructed the common way by constructing a wall on Survey Nos. 1258 and 1260 situation at village Talgaon and thereby obstructing the common way of the agriculturists of the village which constitutes public nuisance. On this report, the police, Rajanagar, filed a complaint under section 133 of the CrPC before the SDM, Rajnagar. After giving opportunity to both the parties, the learned SDM, Rajnagar, vide impugned order dated 25.01.2002, ordered for the removal of the concerning wall constructed by the present petitioner within a week. Feeling aggrieved by the aforesaid order, the petitioner came up in revision under section 397, CrPC which has been decided by the Third Additional Sessions Judge, Chhatarpur, in Criminal Revision No. 21/02 vide order dated 17.05.2002 and dismissed the revision petition. Again feeling aggrieved by the aforesaid order passed by the Court below, the petitioner came up before this Court under section 482, Cr PC for the quashment of the entire proceedings registered under section 133 of CrPC
3. The learned counsel for the State supported the impugned order passed by the Courts below and prayed for the dismissal of the petition.
4. It is submitted by the learned counsel for the petitioner that admittedly the disputed land Survey Nos. 1258 and 1260 belongs to the petitioner Kunoo and he has a right to use his land as per his desire. He constructed the concerned wall on his land. If the other villagers or non-applicant N o. 1 has any right of way on this land then they should approach the civil Court for mandatory injunction or approach to the Revenue Court under the powers of section 31 of M.P. Land Revenue Code. If the State has any grievance to provide the right of way on this land then also the Government has a right to acquire this land as per the provisions of the Land Acquisition Act. But no question arises to disturb the possession of the petitioner's land under the provisions of section 133 of the CrPC therefore, prayed for the quashment of the orders passed by the learned Courts below.
5. It is submitted by the learned counsel for the non-applicant No. 1 that the learned Courts below rightly held that the petitioner had obstructed the way of the villagers which constitutes the public nuisance and the learned SDM has rightly orqered for the removal of the public nuisance under the powers conferred under section 133 Cr PC, therefore, prayed that no ground is made out to interfere with the orders passed by the Courts below.
6. On perusal of the pleadings of the parties and the evidence on record, it is not in dispute that the Survey Nos. 1258 and 1260 situated at village Talgaon belong to the petitioner. The villagers as well as the non-applicant No. 1 claims the right of way on this land. It is also admitted that the applicant constructed the wall on his own land, therefore, apparently unless and until the obstruction created by the petitioner on the public way, the powers under section 133 Cr PC cannot be invoked.
7. It is useful to quote here the provisions of section 133 Cr PC which is as under:
"S. 133 -- (1) Whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government on receiving the report of a public officer or other information and on taking such evidence (if any) as he thinks fit considers:
(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, liver or channel which is or may be lawfully used by the public; or
(b) that the conduct of any trade or occupation or
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