Oral Judgment:

1. Rule. Rule is made returnable forthwith and with consent of the parties, the petition is heard finally at the stage of admission.

2. By the present petition filed under Article 226 of the Constitution of India, read with Section 482 of the Code of Criminal Procedure, the petitioner takes exception to the order dated 27.06.2018 passed by the Sub-Divisional Magistrate, Kallam, District Osmanabad, under Section 133 of the Cr.P.C., whereby the application filed by the petitioner seeking removal of obstruction to the shop’s way came to be rejected.

3. Heard learned counsel for the respective parties. Having regard to the submissions canvassed on behalf of both the parties, I have gone through the record.

4. It is a matter of record that Respondent No.3 Agricultural Produce Market Committee (APMC) is the owner of the land admeasuring 70 X 105 sq. ft. at Kallamb. The said land was allotted to the Respondent No.2 Kallam Taluka Shetkari Kharedi Vikri Sangh, for construction of a commercial complex. The construction of said complex was carried out as per the sanctioned plan. On 14.12.2017, the petitioner along with 17 other persons, submitted an application before the Sub-Divisional Magistrate, Kallamb, District Osmanabad alleging that, after completion of the construction in accordance with the approved plan, the shop’s in the commercial complex/shopping centre were leased out to traders. According to the petitioner, in the said shopping centre there is passage towards east–west between Shop Nos. 4 and 5, for access to the owners of Shop Nos. 9 to 25. the staircase was constructed to provide access to Shop Nos. 26 to 33 situated on the first floor. However, on 08.12.2017, some unknown persons, with mala fide intention, obstructed the said passage by placing an iron box with a shutter in the way, abutting the steps of Shop Nos. 4 and 5. Therefore, a prayer was made for removal of the said iron shutter and for keeping the said public way open.

5. Accordingly, the Sub-Divisional Magistrate issued notices to the concerned parties. After the respective parties filed their written submissions, the learned Sub-Divisional Magistrate, on 27.06.2018, passed the impugned order and rejected the application holding that, Shop No. 17 was allotted to the present Respondent No.5 and possession was given to him by Respondent No.3 APMC. However, on 22.07.2017, Respondent No.3 APMC submitted an application to Respondent No.4 seeking permission for removal of the staircase and to construction a shop block. Accordingly, on 19.08.2017, Respondent No.4 declined to grant such permission, but Respondent No.3 illegally constructed shop block after removing staircase. Therefore, shop was allegedly constructed by encroaching upon a portion of the shopping complex, and removal of said obstruction it does not fall within the ambit of Section 133 of the Cr.P.C.

6. The learned counsel appearing for the petitioner canvassed that the Sub-Divisional Magistrate, Kallamb, failed to appreciate the fact that respondent no. 5 created an obstruction in the way of the shop owners of shop nos. 9 to 25 in the east–west direction. Therefore, the Sub-Divisional Magistrate ought to have exercised the powers under Section 133 of the Code of Criminal Procedure and removed the said obstruction. However, without considering the material available on record, passed the impugned order, which is illegal and bad in law; hence, prayed to quash and set aside the same.

7. Per contra, the learned counsel appearing for Respondents supported the findings recorded by the learned Sub-Divisional Magistrate, Kalamb. The learned counsel appearing for the respondents canvassed that after construction of the shopping complex, total 16 shops were leased out for the a period of 11 years. One shop admeasuring 10 x 40 ft. along with open backside space, was leased in favour of Narayan Tulshiram Kale under the agreement dated 04.07.2006 for a period of 11 years. However, the said Narayan Kale expired, and thereafter, Smt. Parvati Rajesh Pawar, the daughter of Narayan Kale, came into possession of the said shop without notice to the respondents, and raised illegal construction on the backside space reserved for construction of lavatory. Therefore, the notice was served upon said Smt. Parvati Rajesh Pawar and calling upon her to remove said encroachment. It is further contended that Respondent No. 5 has not made any encroachment over the open public land nor obstructed the passage of customers or shop owners. The alleged encroachment does not fall within the ambit of a public place or public nuisance, but it may amount to a private encroachment. Hence, the learned Sub-Divisional Magistrate rightly refused to exercise the powers under Section 133 of the Code of Criminal Procedure and, therefore, prayed for dismissal of the petition.

8. In the case in hand, the petitioner has alleged that unauthorized construction was raised on the open space reserved for the construction of lavatory over the staircase, thereby and obstructing access to the shopkeepers of Shop Nos. 9 to 25 by placing an iron box in the passage, abutting the staircase near Shop Nos. 4 and 5. However, it appears that the shopping complex was constructed by Respondent No. 2 after obtaining sanctioned plan from the Respondent no.4 but no action has been taken by Respondent No. 4 in respect of any alleged illegal construction made contrary to the sanctioned plan. The alleged construction is not on any public road, canal, river or culvert. No doubt, it is the duty of respondent no.4 Municipal Council and respondent no.3 APMC, to remove any unauthorized construction or encroachment in the shopping complex but the present petitioner can also approach the civil court seeking appropriate relief against the encroacher or the person who has raised unauthorized construction. Therefore, Sec. 133 of Cr.P.C. does not empower the Magistrate to remove obstruction On the private property.

9. Section 133 of the code of Criminal Procedure reads as under:

                   "Section 133 – Conditional order for removal of nuisance:

                   1. Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers.-

                   (a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or

                   (b) that the conduct of any trade or occupation or the keeping of any goods or merchandise; is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated: or

                   (c) that the construction of any building, or the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or

                   (d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or

                   (e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or

                   (f) that any dangerous animal should be destroyed, confined or otherwise disposed of,

                   Such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, lank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order-

                   i. to remove such obstruction or nuisance; or

                   ii. to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or

                   iii. to prevent or stop the construction of such building, or to alter the disposal of such substance; or

                   iv. to remove, repair or support such building, tent or structure, or to remove or support such trees; or

                   v. to fence such tank, well or excavation; or

                   vi. to destroy, confine or dispose of such dangerous animal in the manner provided in the said order;

                   or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.

                   2. No order duly made by a Magistrate under this section shall be called in question in any civil Court."

                   Explanation – A “public place” includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes.

10. On a plain reading of Section 133 of the Criminal Procedure Code, it is evident that the provision is attracted only when there exists a public nuisance falling under any of the following categories:

              * obstruction or nuisance in any public place, way, river, or channel which is or may be lawfully used by the public;

              * conduct of any trade or occupation, or keeping of any goods or merchandise, which is injurious to the health or physical comfort of the community;

              * construction of any building, or disposal of any substance, likely to occasion conflagration or explosion;keeping of any animal in a manner dangerous to the public; and

              * any dangerous structure, tank, well, excavation, or tree which poses a threat to the public.

Only upon satisfaction that such public nuisance exists, the District Magistrate or Sub-Divisional Magistrate exercise the powers under Section 133 of the Cr.P.C.

11. Reliance can be placed on the decision of this Court in case of Chhatrapati Shivaji Cooperative Housing Society Ltd. Vs. The State of Maharashtra, 1968 Mh.LJ 909: 1968(70) BOMLR 588 wherein, question was raised before Court that Sub-Divisional Magistrate had no jurisdiction to act under provisions of Section 133 of Cr.P.C. and his order was therefore without jurisdiction. Application was made by Officer in charge of Kopri Colony to Sub-Divisional Magistrate in clear terms that channel was situated in private property of Petitioner and not being public place second contingency could not apply. Since land was private property of Petitioner public could not possibly have any right to use channel as such However, Society had diverted flow of this channel due to which some water accumulates in land of Society and same was dangerous to 32 cabins which have been erected by Colony It also affects some septic tanks by forcing mud into them, therefore, notice was issued to Petitioner by Sub-Divisional Magistrate alleges that action of Petitioner resulted in accumulation of water in surrounding area resulting in public nuisance and that same was injurious to public health. However, it was not intention of Petitioner to apply second para of sub-section again order and it could not be argued that water which accumulates was either goods or merchandise. Hence, order of Sub-Divisional Magistrate and also order of Sessions Judge was quashed and set aside.

12. In case in hand, it appears about existing of civil dispute between the petitioner and respondent no. 5 due to raising unauthorized construction of the shop in the open space of shopping complex and obstruction. The said shopping complex is a private property of Respondent No.3. Further, though the petitioner alleged about misuse of powers by the Chairman and Board of Directors of Respondent No.2 and preparation of false construction map, however, said issue does not fall within the jurisdiction of the Sub Divisional Magistrate u/s 143 or 133 of the Criminal Code. Therefore, Respondent No.1 Sub Divisional Magistrate refused to exercise the powers under section 133 of the Cr.P.C., which does not appear perverse, illegal, bad in law. Therefore, I do not find substance in contention of the petitioner. Therefore, present petition is liable to be dismissed. Accordingly, I proceed to pass the following order:

ORDER

1. Criminal Writ Petition No. 1235 of 2018 is dismissed.

2. However, the parties are at liberty to approach the appropriate Civil Court, if so desire.

3. Rule is accordingly discharged.