O R D E R

% 02.09.2024 CM APPL. 50292/2024 (Ex.)

1. Allowed, subject to all just exceptions.

2. The application stands disposed of.

W.P.(C) 12086/2024

3. The grievance raised in the instant writ petition is with respect to the property / building WZ-3, out of Khasra No. 13321162, Khata No. 128, Khatoni No. 81, (Building WZ-2181) Raja Park Chowk, New Delhi-110034 which is situated at the corner of the street. According to learned counsel appearing for the petitioner, the same is constructed encroaching over the public land i.e., Road No.43 having Right of Way of 150 feet.

4. The Court takes note of the provisions enshrined in Chapter XI (B) and (C) of Bharatiya Nagarik Suraksha Sanhita, 2023 [“Sanhita”] and finds that Sections 152 to 163 of the said Sanhita provide a mechanism as to how such a grievance can be redressed by the District Magistrate or by a Sub- Divisional Magistrate or any other Executive Magistrate especially empowered in this behalf by the State Government.

5. A perusal of Section 152 of Sanhita (erstwhile Section 133 of CrPC, 1973) would indicate that the underlying rationale behind the enactment of such provision is to prevent public nuisance. This Section empowers a magistrate to deal with specific public nuisance and it provides a summary remedy for their removal. The remedy is efficacious as the concerned Magistrate will have first-hand information about the ground reality. The scope and extent of Section 152 of Sanhita can be understood from the following discussion in the case of Ratlam v. Vardichan1, wherein, it was held as under:-

“9. So the guns of Section 133 go into action wherever there is public nuisance. The public power of the magistrate under the Code is a public duty to the members of the public who are victims of the nuisance, and so he shall exercise it when the jurisdictional facts are present as here. “All power is a trust — that we are accountable for its exercise — that, from the people, and for the people, all springs, and all must exist.” [Vivian Grey, Bk. VI Ch. 7, Benjamin Disraeli] Discretion becomes a duty when the beneficiary brings home the circumstances for its benign exercise.”

6. This Court, vide order dated 20.08.2024 in W.P.(C.) 11400/2024 titled as Sh. Nilabh Sharma v. Municipal Corporation of Delhi, wherein, the issue revolved around the causing of public nuisance due to placement of dustbins near the petitioner’s house, dismissed the petition while reserving the right in favour of the petitioner to avail the remedy under Section 152 of

1 AIR 1980 SC 1622 Sanhita. The relevant observations of the Court in the said case read as under:-

“9. In another case titled as Gobind Singh v. Shanti Sarup, which involved the magistrate directing the owner of the bakery to demolish his oven and chimney as it caused inconvenience to the public at large, the Supreme Court has held as under:-

“7. It is true that the learned Additional Sessions Judge did not agree with the findings of the Sub-Divisional Magistrate, but considering the evidence in the case, the reasons given by the Magistrate in support of his order and the fact that the High Court was unable to accept the recommendation made by the Additional Sessions Judge, we are of the opinion that in a matter of this nature where what is involved is not merely the right of a private individual but the health, safety and convenience of the public at large, the safer course would be to accept the view of the learned Magistrate, who saw for himself the hazard resulting from the working of the bakery.”

(emphasis supplied)

10. The Division Bench of the Punjab and Haryana High Court in the case of Vipan Kumar v. State of Punjab, while dealing with a case where the prayer involved removal of garbage reinforced the position that the subdivisional magistrate is invested with the powers under Section 133 of CrPC to remove nuisance. The relevant paragraphs of the said decision is reproduced herein for reference:-

“6. It is to be noticed that the Sub-Divisional