Decided on December 18,1991

STATE OF H.P. Respondents


D.P.SOOD, J. - (1.) THROUGH this petition under Article 227 of the Constitution of India as also under Section 397 of the Code of Criminal Procedure, 1973, the Petitioner has prayed that impugned order Annexure -A directing the Petitioner to remove the wall and other structure raised by him on the public highway known as Bilaspur -Sawarghat -Chandi -garh Road allegedly causing obstruction in the use of the said road and to show -cause as to why this order should not be enforced and made absolute, culminating into proceedings under Section 133 of the Code of Criminal Procedure and ultimate order dated 13th November, 1991 making orders ' vide Annexure -A as absolute by directing the Petitioner to remove the construction in question within 72 hours of the said order, being illegal be quashed.
(2.) ADMITTEDLY , the Petitioner is the owner of land bearing khasra No. 155/20 at village Nal sub - Tehsil Naina Devi, Tehsil Sadar District Bilaspur, Himachal Pradesh, regarding which land acquisition proceedings are still continuing as pending before the Land Acquisition Collector Shimla. There is also no controversy that Petitioner has constructed a shop by raising a stone wall and other structure which according to him is in his own land whereas, as per the Respondents, the said structure is on the highway causing obstruction to the traffic, the Petitioner alleges that he started the construction of hotel building etc. on the aforesaid land in the year 1970. This part of the allegation has neither been denied nor admitted by the Respondents. There is no dispute that the Respondents decided to widen the road referred to above and for that purpose land acquisition proceedings regarding the acquisition of a portion of the land contained in Khasra No. 155/20 had been initiated. For the purpose of deciding this Petition, other facts mentioned therein are not needed to be detailed. The grievance voiced by the Petitioner through his Counsel Shri B.B. Vaid is that Respondents did not adhere to the mandatory procedure pertaining to the recording of the evidence etc. before passing the ultimate order as is envisaged under Section 137 read with Section 138 of the Code of Criminal Procedure. His submission is that the Respondent merely on the basis of his inspection conducted by him made an order Annexure -A, dated October 24, 1991, as absolute. The Respondents on the other hand has contended that all that is required under the law is that an enquiry be held and spot be inspected and no oral evidence is required; that the spot inspection was carried out by the Respondent who observed that the above said structure has caused an obstruction and it has become hazardous for the to and fro traffic on the main highway. He further contended that the construction in question is still continuing by the Petitioner.
(3.) IT is well settled that Section 133, Code of Criminal Procedure applies only to existing and not to potential nuisance, i.e. to what may become nuisance in the future nor does this section applies when the nuisance has ceased Also the power under this section being summary, it should be sparingly used and its provisions should not be so worked as to become itself a nuisance to the community at large Chapter X of the Code of Criminal Procedure pertains to "Maintenance of Public Order and Tranquillity" and its Part -B commencement from Section 133 onwards deals with "Public Nuisances" Section 133, as observed above, gives the power to the Magistrate to make a conditional order. Section 134 deals with service or notification of said order. Section 135 envisages that a person to whom the order is addressed either should obey the order so passed or he should show -cause against it. The subsequent Section 136 lays down the consequence of his failing to do so. Sections 137, 138 lays down with the procedure where existence of public right is denied and where he appears to show -cause to the notice issued to him under Section 133, referred to above. Section 139 gives powers to the Magistrate to direct local inspection and examination of an expert.;

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