BABULAL SHIVLAL UPADHYE Vs. YADAV ATMARAM JOSHI

JUDGEMENT

(1.) A suit for declaration that an absolute order passed under section 138, Criminal Procedure Code, ordering demolition of a house property on the ground of it being a public nuisance was null and void and for permanent injunction restraining the defendants from enforcing an order under section 141, has been dismissed on a preliminary ground that Civil Courts jurisdiction was barred and without going into merits and hence, this second Appeal.

(2.) THE courts below have placed reliance upon section 133 sub-section (2), Criminal Procedure Code, which lays down that no order under section 133 (1) is questionable in any Civil Court. Now, section 133 deals only with conditional order of removal of public nuisance within specified time or in case of objection to do so to appear before a Magistrate and show cause why the conditional order should not be made absolute. Scheme envisaged in Chapter X - Part B of Criminal Procedure Code which deals with the subject of "maintenance of Public Order and Tranquility - Public Nuisance" is that the Magistrates are empowered to summarily deal with cases of urgency or of imminent danger to the public interest, which cannot brook delays. The conditional order can be passed under section 133 (1) on receiving the report of the Police Officer or any other information and on taking such evidence, if any, as the Magistrate may think fit. The order is to be served on the concerned party or if service is not possible, it is to be notified by proclamation as per section 134. Section 135 enjoins an obligation to obey the order within time frame indicated therein. Consequences of failure are envisaged under section 136. They are (i) prosecution under section 188, I. P. C and (ii) making the order absolute. In case the party shows cause against the conditional order, the Magistrate has, under section 137, to take evidence in the matter as in a summons case and to either drop the further proceedings or to make the order absolute depending upon his judgment and satisfaction about the reasonableness and propriety of the order. If the order is made absolute, the Magistrate shall give notice of the said order to the party and require him to comply with the same within specified time and inform him that disobedience shall be liable to penalty under section 188, I. P. C. as required under section 140 (1 ). If the act ordered to be performed is not performed within time, the Magistrate is empowered to cause it to be performed and also to recover the costs in case he thinks fit as per section 140 (2 ). No suit lies in respect of anything done in good faith under this section.

(3.) IT is of great significance to notice that specific bar of the type specified in section 133 (2) or of any other type against questioning in the Civil Court, an absolute order made under section 137 does not exist. Chapter X-B, Cr. P. C. is not the exclusive remedy in respect of public nuisance. Many questions pertaining to valuable and complicated civil rights of parties can arise which may not be appropriately determinable in these summary proceedings, object of which is only to advert imminent danger to public. Remedies are clearly available in respect of public nuisance also in Civil Law and at best remedies under Civil and Criminal Laws could be said to be concurrent as a result pursuit of one does not necessarily bar the other. Magistrate is supposed to be on guard against tendency to use summary jurisdiction as a substitute for setting private civil disputes by-passing the Civil Courts. Civil Courts have jurisdiction to try suit of civil nature excepting those of which cognizance is barred - express or implied. Such a bar is not to be readily inferred and the provisions creating bar have to be strictly construed.