Harbans Lal, J. - (1.) The petitioner and one Gian Singh had installed a thrashing machine in their land for the purpose of thrashing wheat. Waryam Singh, respondent No. 2, and some others, submitted in application before the Sub Divisional Magistrate, Patti, for removal of the machine on the ground that the said machine caused nuisance, spread dust and caused inconvenience to the public. The Sub Divisional Magistrate sent for the report from the Station House Officer, Patti, who deputed Head Constable, City Patti, for necessary action. The present petitioner stated before the Head Constable that he had 200 bundles of wheat left for thrashing at his thrashing machine and that he would stop using the machine after that. That statement is alleged to have been signed by the petitioner. On that basis, the Head Constable sent a report that the working of the machine had been stopped. This report was forwarded by the Station House Officer to the Sub Divisional Magistrate on May 7, 1975. The same was not found to be satisfactory The Station House Officer was directed to make a report regarding facts. Another report is alleged to have been made the next day, that is, on May 8, 1975 according to which the working of the thrashing machine resulted in causing dust and nuisance and that the petitioner and Gian Singh should be directed to remove the thrashing machine to a far off place. A copy of that report is Annexure P. 1. On that report, the Sub Divisional Magistrate, Patti, without issuing any notice to the petitioner or to Gian Singh or following any other procedure, issued the following order an May 9, "I agree with your report. The owner of the thrasher machine is hereby ordered to remove his thrasher from the present site." The petitioner challenged that order by way of revision the Cour of the Additional Sessions Judge, Amritsar, who dismissed the same vide his order dated March 26, 1975. The learned Additional Sessions Judge came to the conclusion that the Sub Divisional Magistrate had passed the order against the petitioner under section 133 (1) (b), Criminal Procedure Code, 1973 (hereinafter to be referred to as the Code) and upheld the order on the ground that the petitioner had mace a statement before the Head Constable that he would be thrashing only remaining 200 bundles of wheat and thereafter, the thrashing machine would not be used. The Additional Sessions Judge also came to the conclusion that the working of the thrashing machine in a thickly populated area was injurious to the health and physical comforts of the inhabitants of the locality, without there being any evidence on the record if the thrashing machine was installed in a thickly populated area and if so, how the working of the thrashing machine proved to be injurious to the health and physical con fort of the people. The contention of the learned counsel for the petitioner that it was incumbent upon the Sub Divisional Magistrate to pass a conditional order as envisaged under section 133 of the Code was also repelled simply on the ground that the petitioner had given an undertaking to the Head Constable to stop working of the thrashing machine after thrashing the remaining 200 bundles of wheat, The present petition has been filed under section 482 of the Code for quashing the impugned order (Annexure P. 2) dated May 9, 1975, passed by the Sub Divisional Magistrate directing the petitioner to remove his thrashing machine and the impugned order (Annexure P. 3) passed by the learned Additional Sessions Judge.
(2.) The learned counsel for the petitioner has vehemently contended that the impugned order passed by the Sub Divisional Magistrate is patently illegal and without jurisdiction. Even if the Magistrate felt satisfied from the report of the Police Officer that any action on the part of the petitioner amounted to public nuisance an contemplated in sub-section' (1) (a) 3nd (f) of section 133 of the Code, it was incumbent upon him to make a conditional order requiring the petitioner to remove such obstruction or nuisance or to show cause and that after the service of the said conditional order on the petitioner, the procedure as contemplated under sections 137, 138 and 139 of the Code had to be complied with It has also been urged that as the Impugned order had been passed behind the back of the petitioner, the true facts had not been brought to the notice of the Sub Divisional Magistrate and the petitioner had been deprived of bringing the same on record. Detailed averments regarding the facts have been made in various grounds of the petition which need not be reproduced here but if those facts were on the record, it is quite probable that the Impugned order may not have been passed. In the present case, the question Involved is of a basic character and is of paramount importance. It is a basic and established principle of rule of law that no person should be condemned unheard and no order should be passed behind the back of any person which may affect his interest adversely. This basic principle of lair play and justice has been embodied in section 133 of the Code which has expressly laid down that the Sub- Divisional Magistrate or the District Magistrate, as the case may be, has to pass a conditional order even when he felt satisfied from the report of the Police Officer that some action on the put of the person concerned had caused nuisance or obstruction. In the present case, admittedly, no such conditional order was passed and the impugned Order passed by the Sub-Divisional Magistrate is in absolute terms. There can be no doubt that such an order could not be passed by the Sub-I Divisional Magistrate and was thus without jurisdiction. It is surprising as to how and under what circumstances the Sub- Divisional Magistrate passed such an arbitrary order without any regard to the provisions of law. It is also surprising that even the learned Additional Sessions Judge did not appreciate the contention of the learned counsel for the petitioner that the mandatory provision of law had not been complied with, but had been flouted.
(3.) The learned counsel for the petitioner contended that the mere fact that some statement had been made by the petitioner before the Head Constable that the petitioner would be thrashing only remaining 200 bundles of wheat did not mean that the thrashing machine would be removed for all times to come. According to the learned counsel, the use of the thrashing machine was required after the harvest of the crop only two times a year At the relevant time, the other wheat having been thrashed, only 200 bundles remained to be thrashed and, therefore, on that occasions, the thrashing machine was not required to be used after the remaining wheat , had been thrashed so far as that crop was concerned. Be that as it may, if the Police felt satisfied that the petitioner had undertaken to remove the thrashing machine, the passing of the impugned order was not necessary, but if the Sub-Divisional Magistrate felt the necessity of passing the impugned order, the same could be passed only after meticulously complying with the provisions of section 133 of the Code, which are salutary and intended to do justice between the parties.;