KOTHARY JAYANTILAL RAMJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Petitioner who in an occupant of the cabin constructed by him with the permission of the respondent No. 3 Bhuj Municipality has by this writ position prayed for a direction to the respondents to rebuild the cabin of the petitioner bearing Municipal Shop No. 3/1-16 situated near Vaniawad Naka at Bhuj as according to the petitioner the respondent No. 2 Assistant Collector and Sub-Divisional Magistrate Bhuj illegally and unauthorisedly removed the cabin in exercise of the powers under Sec. 133 Code of Criminal Procedure. The petitioner was granted the land admeasuring about 7 Ft. X 4 1/2 Ft. and on which the petitioner had constructed a plat-form and was running a Pan Shop but subsequently in the year 1980 with the permission of the respondent No. 3-Bhuj Municipality he constructed the cabin on that land having the bricks wall on one side and was carrying his business of Permit Biscuits etc. in it and the last rent was paid by the petitioner on 15/11/1988 for the period from April 1 198 8/03/1989 The petitioner was allowed to occupy the land certain conditions specified in the license (permits) (Annexures A & B) issued to him. From the documents produced by the petitioner it is apparent that he constructed the cabin with the permission of the respondent No. 3 and was carrying the business with the permission of the respondent No. 3. It transpires that the responddent No. 2 who is the Sub-Divisional Magistrate was informed by the Police that certain constructions in Bhuj city were obstructing the traffic and were causing nuisance and therefore he wrote a letter dated 3/11/1988 to the Chief Officer of the respondent No. 2 Municipality calling upon him to remove such constructions which caused obstruction before 5/11/1988 and appear before him on that day. It transpires that the respondent No. 3 Municipality or the Chief Officer did not take any action in pursuance of the directions by the respondent No. 2. The respondent No. 2 without taking any further action went to the cable of the petitioner along with the Police on 136 988 and demolished it without giving any notice to the petitioner. It transpires that before the action was taken by the respondent No. 2 the petitioner had sensed it and therefore on that day he filed a Regular Civil Suit No. 452 of 1988 in the Court of Civil judge (S.D) praying for interim injection not to dispossess the petitioner illegally or forcibly or to demolish the cabin and the Court had directed to maintain status quo but before the said order could be passed the respondent No. 2 got the cabin demolished. The petitioner has by this writ petition challenged the action of the respondent No. 2 contending that the respondent No. 2 had no such authority to demolish such construction which was lawfully constructed and in occupation of the petitioner without following the procedure prescribed by law.

(2.) Shri H. B. Antani learned Assistant Government Pleaded appearing for the respondents Nos. 1 & 2 states that the respondent No. 2 had taken action under the provisions office. 133 Code of Criminal Procedure but frankly conceded that except for writing the letter dated 3/11/1988 to the Chief Officer of the Municipality as stated above the respondent No. 2 had not served show cause notice to the petitioner or had not followed the procedure prescribe under Sec. 1333 Code of Criminal Procedure. Shri Antani however maintains that action is taken under the provisions of Sec. 133 Code of Criminal Procedure.

(3.) For taking action for the removal of the unlawful construction or nuisance under Sec. 133 and other relevant Sections of the Code of Criminal Procedure the District Magistrate or the Sub-Divisional Magistrate is required to follow the prescribed procedure In case the District Magistrate or Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government receive the report of a police officer or is given information in any other manner that any unlawful obstruction or nuisance should be removed from any public place or from any other way river or channel which is or may be used by the public such Magistrate has to make a conditional order requiring the persons causing such obstruction or nuisance to remove the obstruction or nuisance. In case such period objects he should be directed to appear before such Magistrate or some other Executive Magistrate subordinate to him at the time and place to be fixed by the order arid to show cause as to why the order should not be made absolute. This it the specific mandatory provision lacquered to be followed by Sub-Divisional Magistrate intending to pass an order to remove the obstruction. The Sub-Divisional Magistrate has there- after to follow the procedure prescribed under the provisions of Secs. 134 135 and 141 Criminal Procedure Code as the case may be. The order is required to be served to such persons in the manner provided for the service of summons. The person against whom such order is made has to perform within the time and in the manner prescribed in the order the act directed by such order or to appear in accordance with such order to show cause against the same. As provided in Sec. 136 Criminal Procedure Code if such person does not perform such act or appear and show cause he shall be liable to the penalty prescribed in that behalf in Sec. 188 of the Indian Penal Code and the order can be made absolute by the competent authority. If the public right is denied then the Magistrate has to inquire in the matter and follow the provisions of Sec. 137 Code of Criminal Procedure. If the person against whom the order under Sec. 133 is made appears and shows cause against the order the Magistrate has to take the-evidence in the matter as in the Summons Case arid in case the Magistrate is satisfied that the order is reasonable and proper he may make the order absolute without modification or with such modification as may be necessary As provided in Sec. 138 Code of Criminal Procedure in case the Magistrate is not satisfied no further proceeding should be taken in the case. If required that then Magistrate may direct local investigation as provided in Sec. 139 Code of Criminal Procedure and also may issue written in truth tions. In case the order is made absolute under Sec. 136 and 138 Criminal Procedure Code the Magistrate should give notice of the same the person against whom the order is made and he is also empowered to further require such person to perform the Act as directed by the order within a time to be fixed in the notice and inform such person that in case of disobedience, he will be liable to the penalty provided by sec. 188 of the Indian penal code. Under sub-sec (2) of sec. 141 code of criminal Procedure such magistrate has power to cause such act to be performed