O R D E R

% 10.09.2024

1. The petitioner in the instant writ petition seeks for directions to respondent No.1 to cover the open drain/nalla i.e. Palam link drain allegedly flowing through Mahavir Encalve; Mahavir Vihar, Pocket 1 & 2 Dwarka Sector 1.

2. During the pendency of the instant writ petition, various directions came to be passed and Status Report has also been filed by the respondent- Corporation. The respondents, while placing reliance on the directions passed by the National Green Tribunal submit that the prayer made in the instant writ petition cannot be acceded to on account of the said directions.

3. Having briefly considered the submissions made by learned counsel for the parties, the Court is of the considered opinion that if the petitioner has any grievance, the appropriate recourse is to agitate the same before the concerned Executive Magistrate, as envisaged in the Bharatiya Nagarik Suraksha Sanhita, 2023, [“Sanhita”]. The Court takes note of the provisions enshrined in Chapter XI (B) and (C) of the Sanhita and finds that Sections 152 to 163 therein 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.

4. 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 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 sub divisional 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 Magistrate, Mukerian who is present in Court has powers under Section 133 of the Code of Criminal Procedure (Cr.P.C. - for short) for removal of nuisance.

7. Hon'ble the Supreme Court in Municipal Council, Ratlam v. Vardhichand, (1980) 4 SCC 162 : AIR 1980 SC 1622 has held that the Magistrate's responsibility under Section 133 Cr.P.C. is to order removal of nuisance within a time to be fixed in the order. This it was said is a public duty implicit in the public power to be exercised on behalf of the public and pursuant to a public proceeding. It was said that Section 133 Cr.P.C., permits enforcement of civic rights under the Municipal Law where the neglect had led to a public nuisance. The Section permits affirmative action to abate the nuisance on a time bound basis by issuing specific directives. Failure to comply with the directions issued by a Magistrate wo