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2025 DAILYLAW 3530 (HP)

Ram Lal v. State of H. P.

2025-09-17

Rakesh Kainthla

body2025
JUDGMENT : Rakesh Kainthla, J. The petitioners have filed the present revision against the order dated 11.12.2024 passed by learned Sub Divisional Magistrate (SDM), Rohru, District Shimla, H.P., vide which the conditional order passed under Section 152 of Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’), was made absolute. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present revision are that residents of Upper Gangtoli made a complaint to the learned Sub Divisional Magistrate (SDM), Rohru, District Shimla, HP, asserting that the Department of JSV was laying a sewerage line in the area. Prem Dayal is also one of the beneficiaries. He executed an affidavit for the construction of a sewerage line on his property; however, he subsequently objected to the installation of a pipeline on his land. He was requested to allow the laying of the sewerage line, but he did not agree. Therefore, it was prayed that an appropriate action be taken against him. 3. Learned SDM, passed an order under Section 152 of BNSS, that the respondent was obstructing the laying of a sewerage line, he had constructed a building in the area in such a manner as would lead to permanent blockade of the line, which act amounted to public nuisance; hence, he was directed to appear before the Court on 23.09.2024. 4. The respondent No. 1 filed a reply, taking a preliminary objection regarding the lack of maintainability. He asserted that the khasra number where the line was to be laid was not mentioned. The provisions of the Town and Country Planning Act did not extend to the area where the land was located, and no sewerage pipe can be laid without the acquisition of the land. On merits, it was asserted that the villagers wanted to harm the respondents, and the respondents would have to leave their building to lay the sewerage pipe. Therefore, he prayed that the present petition be dismissed. 5. Learned SDM made the conditional order absolute on 13.09.2024 after holding that the public interest overrides the private interest, and directed the respondents to remove the nuisance created by them. 6. Therefore, he prayed that the present petition be dismissed. 5. Learned SDM made the conditional order absolute on 13.09.2024 after holding that the public interest overrides the private interest, and directed the respondents to remove the nuisance created by them. 6. Being aggrieved by the order passed by the learned SDM, the respondents have filed the present revision, asserting that the sewerage pipe was proposed to be laid between the land of Prem Dayal and Pyar Pati. The sewerage line was constructed through khasra No. 785, but it was dismantled. The sewerage line is proposed to be laid adjacent to the respondent’s kitchen, which would make it difficult for them to reside in the house. Learned SDM had no jurisdiction to permit the laying of the sewerage pipe without the acquisition of the land. The petitioners constructed the house after obtaining the sanction from the authorities. The alignment of the sewerage pipeline was changed to harm the petitioners; therefore, it was prayed that the present petition be allowed and the order passed by the learned SDM be set aside. 7. I have heard Mr. Arsh Chauhan, learned counsel for the petitioners and Mr. Prashan Sen, learned Deputy Advocate General for the respondent/ State. 8. Mr. Arsh Chauhan, learned counsel for the petitioners, submitted that the petitioners are the owners of the land. The learned SDM cannot deprive them of their land without acquisition. The jurisdiction under Section 152 BNSS cannot be exercised to force a person to part with his land. He has relied upon the judgment of this Court in Babu Ram and others vs. State of HP and others, 1988(2) Shim. LC 141, in support of his submission. 9. Mr. Prashant Sen, learned Deputy Advocate General, for the respondent/ State, submitted that the petitioners did not allow the laying of the sewerage pipeline despite executing an affidavit. This would cause difficulties to the people of the area; therefore, he prayed that the present petition be dismissed. 10. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 11. The present petition was considered by the learned SDM under Section 152 of Cr.P.C., which reads as under: - “152. Conditional order for removal of nuisance. 10. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 11. The present petition was considered by the learned SDM under Section 152 of Cr.P.C., which reads as under: - “152. Conditional order for removal of nuisance. (1) Whenever a District Magistrate or 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, consider - (a) ... (b) ….. (c) .... (d) .... (e) .... (f)...... 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, talk well or excavation, or owning or possessing such animal or tree, within time to be fixed in the order- (i) To remove such obstruction or nuisance; or (ii) …… (iii)... (iv)... (v) ... (vi)... 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.” 12. It is apparent from the bare perusal of this Section that when an information is received by the learned Magistrate from the police or somewhere else, he has to satisfy himself that the information relates to the situation contemplated in Section 152 of BNSS and pass a conditional order requiring the person obstructing to remove such obstruction or nuisance and if he objects to do so, to appear before him or any Magistrate subordinate to him. Section 154 provides that the person to whom an order is addressed can perform the act directed in the order, or he may appear and show cause against the order. Section 156 provides that where the existence of a public right is denied, an inquiry would be made. Section 157 provides that when the person shows cause, the Magistrate shall take evidence in the same manner as in the summons case. Section 156 provides that where the existence of a public right is denied, an inquiry would be made. Section 157 provides that when the person shows cause, the Magistrate shall take evidence in the same manner as in the summons case. Section 157 (2) provides that where the Magistrate is satisfied that the order either originally made or subject to such modification as he considers necessary is reasonable, the order shall be made absolute without modification or with such modification. 13. It is apparent from the scheme of these Sections that conditional order is the foundation on which the whole of the proceedings rests. If the person to whom the conditional order is directed accepts the order and complies with it, the proceedings terminate, but if he feels aggrieved and shows cause, the inquiry has to be conducted, and the order can be made absolute, modified or discharged only after the inquiry. Thus, the passing of a conditional order is necessary before it can be made absolute, modified or discharged. The purpose of passing the conditional order is to make the other party aware of the nature of the order that can be ultimately passed in the proceedings. Therefore, it puts the other party on notice of the ultimate order and forms part of natural justice. 14. In the present case, learned SDM passed a conditional order directing the respondents to appear before the Court on 23.09.2024; however, learned SDM failed to mention the steps to be taken by the respondent. It was laid down by the Allahabad High Court in Mangal and others v. State of U.P. and others, 1977 Cri. L. J. 1036, that where no formal/ conditional order was passed by learned SDM, the proceedings are bad. It was observed:- “4. In my opinion, there is force in this submission. It was laid down by the Allahabad High Court in Mangal and others v. State of U.P. and others, 1977 Cri. L. J. 1036, that where no formal/ conditional order was passed by learned SDM, the proceedings are bad. It was observed:- “4. In my opinion, there is force in this submission. According to S. 133 (1) whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in that 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 that any unlawful obstruction or nuisance should be removed from any public place or from anyway, river or channel which may be lawfully used by public etc., he may make conditional order requiring the persons causing such obstruction to remove the same within the time stated in the order or in case they object to the order, they should appear before him or some other executive Magistrate subordinate to him at a time and place stated in the order and to show cause as to why the order be not made absolute. So far as the first order passed by the Sub- Divisional Magistrate on 11-5-1976 is concerned. It was merely a direction that an order under Ss. 133 and 142 of the Code of Cr. The procedure be drawn upon. It is apparent that it was not the formal order under S.133, which had yet to be drafted and signed by him. Coming now to the actual notice issued to the applicant in pursuance of the aforesaid order made by the Magistrate, I find that it merely recites the reason for and the direction issued under S. 142 of the Code. It states that whereas an enquiry into a conditional order made under S. 133, Cr. P. C. is pending, and the information received by the Magistrate showed that an unlawful obstruction or nuisance had been made which was causing imminent danger of a serious type to the public, and such danger had to be prevented; accordingly, an order under S. 142, Cr. P. C. requiring the applicant to demolish the said construction was being made. On the face of it, this order does not partake the nature of an order which is to be made under S. 133, Cr. P. C. requiring the applicant to demolish the said construction was being made. On the face of it, this order does not partake the nature of an order which is to be made under S. 133, Cr. P. C, It is not in the nature of a conditional order requiring the applicant either to do something within the time specified therein or to show cause. It appears that the Magistrate passed the order requiring the Officer to draw up an order under S. 133, Cr. P. C. expected that the officer would draw up such an order for him and place the same for his signature. This, in my opinion, was not in accordance with the law. 5. Learned counsel for the opposite parties urged that in the notice issued to the applicant on the same date, it was mentioned that the applicant had encroached upon the public way by raising a wall. Accordingly, it cannot be denied that the learned Magistrate had formed an opinion that the obstruction by way of encroachment had been made on a public way and that it deserved to be removed. Requirement of S. 133, Cr. P. C., therefore, had been substantially complied with, and no interference in revision is called for. I am unable to accept this submission. In the first place, the notice copy of which has been filed as Annexure 3 cannot be equated with an order under S. 133 Cr. P. C. Aforementioned facts were recited merely to indicate the circumstances in which an order under S. 142, Cr. P. C. was being passed. In any case, even if the order dated 11th May 1976 is read along with the notice prepared on 11th May 1976, it would still not comply with the remaining requirements of S. 133 of the Code of Cr. Procedure, namely that the applicants should have been told that they could appear before the court on the date and place fixed by it and file such an objection to the conditional order as they liked. There is no escape from the position that, in this case, there is no proper order under S. 133, Cr. P. C. has been issued. 6. At this stage, I would like to point out that to facilitate the passing of orders under S. 133, guidance has been provided in the shape of Form No. 20, appended to Sch. There is no escape from the position that, in this case, there is no proper order under S. 133, Cr. P. C. has been issued. 6. At this stage, I would like to point out that to facilitate the passing of orders under S. 133, guidance has been provided in the shape of Form No. 20, appended to Sch. II of the Code of Cr. Procedure. The subordinate courts would do well to keep the form in mind while passing an order under S. 133 of the Code of Cr. Procedure. 15. The contents of the complaint show that the respondent had not permitted the sewerage pipeline to pass through his land. Learned SDM held that the act of the respondent had caused obstruction, annoyance and nuisance to the general public; however, it is not explained how an act of refusing to lay a sewerage line can ever constitute a nuisance within the meaning of Section 152 of the BNSS. It has been stated in Ratanlal and Dhirajlal Code of Criminal Procedure, 22nd Edition, Lexis Nexis, India, that this Section deals with six types of nuisances. It is observed at page 203: “The public nuisances which can be redressed under the section fall under six categories: — (1) the unlawful obstruction or nuisance to any public place or to any way, river or channel lawfully used by the public; (2) the conduct of any trade or occupation, or the keeping of any goods or merchandise, injurious to the health or physical comfort of the community; (3) the construction of any building, or the disposal of any substance, as is likely to occasion conflagration or explosion; (4) a building, tent or structure, or a tree as is likely to fall and cause injury to persons; (5) an unfenced tank, well or excavation, near a public way or place; and (6) a dangerous animal requiring destruction, confinement or disposal.” 16. In the present case, the nuisance did not fall within the categories explained by the learned authors. It was a dispute between the villagers and the respondent regarding the laying of a sewerage line. It was laid down in T.P. Rajeevan vs. Sub Divisional Magistrate and another, 1986 Cr. L. J. 693, that the provisions of Section 133 of CrPC (corresponding to Section 152 of BNSS) cannot be used to wreak private vengeance upon a party. It was observed:- “4. It was laid down in T.P. Rajeevan vs. Sub Divisional Magistrate and another, 1986 Cr. L. J. 693, that the provisions of Section 133 of CrPC (corresponding to Section 152 of BNSS) cannot be used to wreak private vengeance upon a party. It was observed:- “4. It follows that even at the time of issuing the preliminary order, the Magistrate must have his satisfaction regarding the existence of a particular stage of affairs enumerated in S. 133(1)(d). 5. Article 227 of the Constitution gives every High Court the power of superintendence over all the Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. In the exercise of such jurisdiction, the High Courts are given the power to make and issue general rule and prescribe forms regulating the practice and proceedings of such Courts and to prescribe forms. S. 476 of the Cr. P. C. provides that subject to the above-said power of the High Courts, the forms outlined in the Second Sch. with such variations as the circumstances of each case require, may be used for the respective purposes therein mentioned. So far as the present case is concerned, the form prescribed under Sch. II is applicable. According to the said form, after setting forth the grounds, the person against whom the conditional order is issued will have to be called upon to comply with the order or require him to appear and show cause as stated in S. 133(1). The compliance with this formality is an essential ingredient in observing the principle of natural justice. Only on compliance with that provision, the Magistrate gets jurisdiction to proceed further under Ss. 137 and 138. 6. The disputed provision is not intended to help private parties in wreaking vengeance between themselves or in settling their private disputes, for which they will have to approach the competent forum. The Sub Divisional Magistrate is discharging a public duty cast on him for the purpose of avoiding something which, though not coming within the definition of public nuisance as defined in the Indian Penal Code, is treated as a public nuisance for S. 133. For S. 133, it need not be a nuisance to the public at large. Possible injuries to an individual alone may be sufficient in given cases. For that provision, such a restricted definition of public nuisance is within the limits of law. For S. 133, it need not be a nuisance to the public at large. Possible injuries to an individual alone may be sufficient in given cases. For that provision, such a restricted definition of public nuisance is within the limits of law. Anyhow, there must be some material for the satisfaction of the Sub Divisional Magistrate for the purpose of issuing a conditional order under S. 133(1). 7. The Magistrate will have to be careful to avoid the contingency of litigants making use of the provision as a substitute for the enforcement of their private rights, for which they will have to approach the Civil Court or other competent forum. One of the objects of S. 133 must be understood to be the prevention of frivolous litigations. After the conditional order, the legislature has provided two enquiries in two stages. One is the preliminary enquiry provided under S. 137, and the other is the final enquiry contemplated under S. 138. 8. The preliminary stage, as I have stated earlier, is an ex parte stage. The second and third stages, namely, the preliminary and final enquiries, are contested stages. The evidence collected at the preliminary ex parte stage cannot be treated as evidence in the enquiry. That is intended only for the satisfaction of the Magistrate for the purpose of issuing the conditional order. It has to be noted that the preliminary order is without notice to the person against whom it is issued, and he may not be anywhere in the scene at that stage. At the same time, the person invoking jurisdiction will be on record, and he may be able to manipulate things. So also the ex parte evidence collected by the Sub Divisional Magistrate does not have a guarantee of correctness or truthfulness inasmuch as it is collected behind the back of the affected person. At that stage, the affected person does not have the chance to intervene for the purpose of ensuring the correctness of the information that reaches the Sub Divisional Magistrate. That is why it is provided that he will have to be given an opportunity to appear and show cause. 9. Section 137(1) provides that as soon as the person against whom the order was made appears, the Magistrate will have to question him as to whether he denies the existence of the state of affairs mentioned in the conditional order. 9. Section 137(1) provides that as soon as the person against whom the order was made appears, the Magistrate will have to question him as to whether he denies the existence of the state of affairs mentioned in the conditional order. If he denies it, before proceeding under S. 138, the Magistrate will have to conduct an enquiry under S. 137(2) to find whether there is any reliable evidence in support of such denial. If he finds that there is reliable evidence in support of such a denial, the Magistrate will have to stay the proceedings until the matter of the existence of the right has been decided by a competent Civil Court. If only he finds in the preliminary enquiry that there is no such evidence, he shall proceed as laid down in S. 138. 17. The respondent appeared before the learned SDM and denied that his act constituted a nuisance. Learned SDM was bound to conduct an enquiry and take the evidence. The order dated 11.12.2024 does not show that any enquiry was conducted. Learned SDM visited the spot along with the public official to understand the exact condition and held that the laying of the sewerage line between the properties of Ram Dayal, Piar Pati and Prem Dayal was the best way for laying the sewerage line. Therefore, he directed the respondent to allow the laying of the sewerage line. 18. It was laid down by the Madras High Court in Executive Officer Sri Rajagopalaswami Temple, Pudupalayam, Cuddalore vs. A. Satchidanandam: MANU/TN/0498/1982 that the Magistrate cannot pass an order based on the spot inspection and if he does so, the High Court can interfere with the order under section 482 of CrPC. It was observed: “4. The second irregularity is that the Magistrate has not questioned the petitioner herein (respondent before him) when, admittedly, the Executive Officer of the temple appeared before him. Further, no evidence was recorded as contemplated under S. 133, Crl. P.C. Again, he seems to have inspected the property locally without notice to the parties, and no notes of inspection are found in the records. All these are irregularities, and an order passed on such irregularities will have to be set aside. 5. It was contended on behalf of the respondent herein that this is a second revision I petition which does not lie and that it is not maintainable. All these are irregularities, and an order passed on such irregularities will have to be set aside. 5. It was contended on behalf of the respondent herein that this is a second revision I petition which does not lie and that it is not maintainable. But, then, this is a petition under S. 482 Crl. P.C. is invoking the inherent jurisdiction and powers of the Court. For all these reasons, the order passed by the lower Courts is vitiated and is liable to be set aside. Accordingly, all the proceedings except the petition filed by the respondent herein under S. 133, Crl. P.C. is set aside, and the matter is remanded back to the Executive Magistrate for initiation of proceedings, if necessary, according to S. 133, Crl. P.C. and disposal of the same strictly in accordance with law.” (Emphasis supplied) 19. Kerala High Court held in Mani Mathai v. Uthuppu 1985 STPL 2643 Kerala that the Magistrate cannot conduct the local inspection to collect the evidence to dispose of the matter pending before him. He can conduct the local inspection to appreciate the evidence led before him, and cannot pass an order based on the impression gathered during the local inspection. It was observed: “12. The only basis on which the Magistrate proceeded to decide the matter finally is the alleged authorisation or consent from the parties. It is true that there is a record to show that both sides agreed to a local inspection and to have the matter disposed of accordingly. But the consent of parties will not invest the Magistrate with a jurisdiction which he does not otherwise have. Even from the impugned order, it is seen that after local inspection, the petitioners before this Court expressed their objection to having the matter disposed of in the way in which the Magistrate proposed to have the decision. But the Magistrate was very much particular to enforce the consent of the parties. He has not only dispensed with the inquiry under Section 137 (l) relying on the alleged consent given by the parties, but even dispensed with an inquiry under Section 138 in order to pass a final order under Section 138 (2). The impression gathered by him on the basis of the local inspection was taken as a substitute for the inquiry under Sections 137 (1) and 138. This is evidently illegal. 13. The impression gathered by him on the basis of the local inspection was taken as a substitute for the inquiry under Sections 137 (1) and 138. This is evidently illegal. 13. The object of local inspection is not the collection of evidence for disposal of proceedings pending before courts. If that be the object, it is enough for the disposal of matters pending before courts that Presiding Officers conduct local inspection every day. The object of local inspection is very much limited. Usually, local inspection is resorted to only sparingly and in extreme cases. Even when the ideal inspection is conducted, the material collected on the basis of local inspection will not and cannot be used as evidence in the case. They could only be used for the purpose of appreciating the evidence tendered by the parties. But in this particular case, local inspection was conducted for the purpose of deciding the disputed question whether the pathway in question was a public pathway and whether it was obstructed or not. The action of the Magistrate is highly irregular in this report. In the decision in Ambi v. State of Kerala, it was held: The conditional order cannot be made absolute without the party (complainant) being called upon to substantiate the allegation, which necessitated the passing of the conditional order, by producing legal evidence. The Court is not expected to base the decision solely upon the information gathered from a personal inspection of the locality, which can. Merely aid the court in appreciating the evidence before it. That position has further been emphasised in the decision in Narayana Shetty and others v. Varkey Antony, wherein it was found: The Court is not expected to base the decision solely upon the information gathered from a personal inspection of the locality, which can merely aid the court in appreciating the evidence before it. The Section can be invoked only where there has been an invasion of public rights. It follows that the action of the Magistrate is wrong for more than one reason. In the first place, the impugned order was passed as if it were a final order, and before passing such an order, he had not decided whether there was reliable evidence in support of the denial of the existence of the public right or not. It follows that the action of the Magistrate is wrong for more than one reason. In the first place, the impugned order was passed as if it were a final order, and before passing such an order, he had not decided whether there was reliable evidence in support of the denial of the existence of the public right or not. Secondly, he decided the question without allowing the counter-petitioners before him to introduce evidence establishing the genuineness of the denial of the public right. The information gathered by him during the local inspection was wrongly used by him as a substitute for legal evidence. Whenever a local inspection is conducted, it will have to be with notice to the parties. The Officer conducting the local inspection will have to prepare a memorandum in which the details noted at the local inspection will have to be recorded. The parties are entitled to get copies of that memorandum to understand whether the facts were properly understood and collected by the officer. None of these formalities were complied with in this case. Therefore, the order under revision must necessarily go. It is also said that after issuing the final order, the Magistrate has also issued notice to the revision petitioners through the Sub-Inspector of Police. Koothattukulam directed them to comply with the order and warned them of consequences envisaged under the provisions of the Indian Penal Code. Anyhow, when the final order is set aside, the notice pursuant to that order also must go. 20. Allahabad High Court also held in Satya Prakash v. State of Uttar Pradesh 1983 STPL 1361, Allahabad, that the Magistrate should not become a witness by visiting the spot. He should record the evidence, and if necessary, he can visit the spot to appreciate the evidence led before him. It was observed: “12. Thus, in making a local inspection, a Magistrate should not do anything which would reduce him to the position of a witness. It is really meant for the purpose of appreciating the evidence in the case, and can be utilised for the purpose of drawing conclusions from the evidence, but it cannot be treated as evidence itself, nor can a judgment be founded on it. See Kotappa and others v. Serappa Sakalathi Rangappa and another, A.I.R. 1955 Mysore 131. It is really meant for the purpose of appreciating the evidence in the case, and can be utilised for the purpose of drawing conclusions from the evidence, but it cannot be treated as evidence itself, nor can a judgment be founded on it. See Kotappa and others v. Serappa Sakalathi Rangappa and another, A.I.R. 1955 Mysore 131. In short, the test to be applied is whether the evidence adduced by the parties has entered into the decision-making, or the judgment proceeds from non-consideration of the evidence and its real foundation is knowledge derived from local inspection. The judgment should indicate that the evidence on record was an element in its formulation, and it was only buttressed by the observations of the Presiding Officer during the site inspection. See Ugam Singh and another v. Kesrimal and others, A.I.R. 1971 S.C. 2540. In the instant case, the plaintiff filed an application under section 133 of the Criminal Procedure Code on 1.6.1978. The City Magistrate ordered a preliminary inquiry by way of local investigation to be made by the Tahsildar, Etawah, who submitted his report dated 25.7.1978, fully supporting the allegations made in the complaint. Thereafter, the contesting parties filed their written statements and evidence was adduced in the case. The complainant, besides examining himself, also examined an engineer who, being an expert witness, stated that the building in question was in a dangerous condition and was likely to fall. Arguments of the parties were heard, and on 5.8.1979, the learned City Magistrate made a local inspection after giving notice to both parties and passed the order dated 13.8.1979 directing demolition of the building. The said order elaborately discusses the evidence adduced by the parties, and it is quite clear from the sequence of events that the decision rendered by the City Magistrate is based on an appreciation of evidence and not on information that appears to be a better evaluation of evidence. It does not, therefore, vitiate the impugned order passed under section 133 Criminal Procedure Code, nor has the procedure followed by the city Magistrate in any manner prejudiced the present applicant, who was the contesting opposite party in the court below.” 21. It was laid down by this Court in Kashmir Singh v. State of H.P. 1992 (2) Shimla Law cases 163 that an SDM could not have passed any order based on the spot inspection conducted by him. It was laid down by this Court in Kashmir Singh v. State of H.P. 1992 (2) Shimla Law cases 163 that an SDM could not have passed any order based on the spot inspection conducted by him. It was observed: “4. It is well settled that section 133, Cr. P. C. applies only to existing and not to potential nuisance, i.e. to what may become a nuisance in the future nor does this section apply 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 the 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 consequences of his failing to do so. Sections 137 and 138 lay down the procedure where the existence of a 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. 5. In the instant case, the lower Court's record shows that the reply was filed by the petitioner to the show-cause notice, where he denied the existence of a public right. In the circumstances, sections 137 and 138 were attracted. Section 139 gives powers to the Magistrate to direct local inspection and examination of an expert. 5. In the instant case, the lower Court's record shows that the reply was filed by the petitioner to the show-cause notice, where he denied the existence of a public right. In the circumstances, sections 137 and 138 were attracted. Now closely reading the two sections pertaining to the procedure referred to in sections 137 and 3 38 respectively, when a person Is served with an order under section 137 appears, it becomes obligatory on the Magistrate to, first, ask him (defaulter) whether he denies the existence of a public right in question and in case he does so it becomes then obligatory on the said Magistrate to conduct an enquiry into the matter under section 137 before holding an enquiry referred to in under section 138, secondly, at this enquiry, the person (defaulter) is required to produce his evidence in support of his denial and in case such evidence is found to be reliable, the jurisdiction of the Magistrate is ousted and proceedings are then required to be stayed until the matter has been decided by a Civil Court. Lastly, if the person does not raise any question of public right or if (when raised) there is no reliable evidence in support of such right, then such Magistrate shall proceed to enquire under section 138 and pass final order- The above said mandatory provisions of law show that it is illegal to pass final order merely upon an enquiry under section 137 without thereafter proceeding under section 138. In other words, the procedure detailed under section 137 is imperative. In the instant case, admittedly, no such procedure under section 137 and thereafter an enquiry under section 138, which were mandatory, have been followed by the respondents. Thus, the ultimate order passed on November 13, 1991, is illegal and the same is liable to be quashed.” (Emphasis supplied) 22. Similarly, the Kerala High Court also held in Diamond Aggregates, A. Partnership Vs. State of Kerala 2007 STPL 12501 Kerala, that the SDM is not competent to pass an order simply based on the local inspection conducted by him. He has to follow the procedure laid down under Section 138 of Cr.P.C. and record the evidence. It was observed: “5. Similarly, the Kerala High Court also held in Diamond Aggregates, A. Partnership Vs. State of Kerala 2007 STPL 12501 Kerala, that the SDM is not competent to pass an order simply based on the local inspection conducted by him. He has to follow the procedure laid down under Section 138 of Cr.P.C. and record the evidence. It was observed: “5. The only other question which survives for consideration is as to whether the Annexure-3 order passed by the Sub Divisional Magistrate can be sustained. As noticed earlier, consequent on the revision petitioner who was the B party entering appearance and filing objection to the preliminary order, the Sub Divisional Magistrate could not thereafter straight away proceed to pass a final order under Section 138 Cr.P.C. by merely placing reliance on the final report of the Tahsildar and the impressions gathered by the Sub Divisional Magistrate himself during the local inspection conducted by him on 17.12.2005. An Executive Magistrate, who makes a conditional order absolute under Section 138(2) Cr.P.C., cannot do so without taking evidence of the party at whose instance he passed the conditional order, Velayudhan v. Kesavan Nair,1968 KerLT 889. If the person against whom the show cause summons has been served files his objection, the Executive Magistrate cannot straight away dispose of the case under Section 138 Cr.P.C. But he will have to take evidence and satisfy himself as to whether the conditional order passed by him is reasonable and proper. This is the legal position even in a case where the person concerned does not pursue their objections. It is for the complainant, who moved the Magistrate to lead evidence on his side. He cannot leave the Magistrate to base his order on the materials placed before him when the preliminary order was passed. Report of the Tahsildar, police papers or evidence adduced while passing the preliminary order under Section 133 Cr.P.C. are not substitutes for taking evidence under Section 137 Cr.P.C. Bhaskaran Nair v. Samuel,1974 KerLT 591. Taking of evidence is a condition precedent to the making of the conditional order absolute, Narayana Shetty and Ors. v. Varkey Antony,1971 MhLJ(Crl) 293. Similarly, the impressions gathered by the Sub Divisional Magistrate during the local inspection conducted by him cannot form the basis for passing a final order. Annexure-3 order also cannot, therefore, be sustained and is accordingly set aside. v. Varkey Antony,1971 MhLJ(Crl) 293. Similarly, the impressions gathered by the Sub Divisional Magistrate during the local inspection conducted by him cannot form the basis for passing a final order. Annexure-3 order also cannot, therefore, be sustained and is accordingly set aside. It shall be open to the Sub Divisional Magistrate to continue the proceedings in case a motion is made at the instance of the A party on whom the burden to substantiate their allegations lies. It goes without saying that even in the event of the Sub Divisional Magistrate dropping the proceedings initiated under Section 133 Cr.P.C., the revision petitioner will be entitled to continue the blasting operations only if the licence in his favour has been renewed and also in case he complies with the safeguards fixed by the Pollution Control Board and other statutory authorities.” (Emphasis supplied) 23. Learned SDM, directed the respondent to allow the laying of sewerage line through their boundary, and in case of failure, IPH and Electricity Department were authorised to disconnect all public facilities by withdrawing the respective NOC issued in favour of the respondents. Directions were also issued to Town and Country Planning to take necessary action against the respondents. Learned SDM clearly exceeded his jurisdiction in issuing such directions. Section 155 of BNSS reads that if a person against whom an order is made does not perform the act, he shall be liable to the penalty specified under Section 223 of BNSS. Section 160 of BNSS reads that when an order has been made absolute and the act is not performed, the Magistrate may cause it to be performed and may recover the cost of performing it by the sale of the property of the respondent. Thus, the only course available to the learned SDM was to cause the act to be done and sell the property to recover the amount. He could not have passed an order for the withdrawal of electricity and water facilities and demolition of the building. 24. Learned SDM held that the son of the respondent was a Field Kanungo in the office of the SDM, and it was his moral and legal duty to help people in such administrative exigencies. Learned SDM brushed aside the objection taken by the respondent that his land cannot be utilised without the payment of compensation as per the mandate of Article 300A of the Constitution of India. Learned SDM brushed aside the objection taken by the respondent that his land cannot be utilised without the payment of compensation as per the mandate of Article 300A of the Constitution of India. This Court came across a similar situation in Babu Ram vs. State of HP, 1988(2) Shim. Law Cases 141, wherein the learned SDM has used the preventive jurisdiction conferred upon him to forcibly erect an electricity pole in the respondent’s land. This Court held that the exercise of authority by the learned SDM to deprive a person of his property was impermissible. It was observed as under: - “31. We also feel it necessary to observe that the proceedings like the one in question are of a preventive nature. All the same, they impinge upon the liberty of an individual, which is of paramount importance and value and a fundamental right guaranteed under our Constitution. It is thus imperative that the Court seized of such proceedings to see that all the relevant provisions of law touching those proceedings are strictly complied with and the liberty of the citizen is not allowed to be jeopardised on frivolous and baseless allegations towards achieving a particular end as has been done in the case at hand. Thus a legal and pious duty is cast upon such officers while acting judicially in proceedings of this nature to cast away and forget their other executive roles which they might have to play as Executive Officers and not to resort to compulsive acts of this nature to achieve a particular end as administrative officers howsoever laudable, as appears to have been done in the case in hand, as that would amount to gross abuse of his judicial powers.” 25. It is unfortunate that despite the lapse of 27 years, the situation has not changed, and a citizen is being compelled to approach the Court to protect his property, which is being taken away from him by the exercise of police powers; hence, it is a fit case where the petitioners should be compensated for the cost of litigation thrust upon them. 26. Consequently, the present petition is allowed and the order dated 11.12.2024 passed by learned Sub Divisional Magistrate (SDM), Rohru, District Shimla, H.P., in Case No. 38 of 2024 is set aside and the complaint filed by the villagers is dismissed, with a cost of Rs.10,000/-. 26. Consequently, the present petition is allowed and the order dated 11.12.2024 passed by learned Sub Divisional Magistrate (SDM), Rohru, District Shimla, H.P., in Case No. 38 of 2024 is set aside and the complaint filed by the villagers is dismissed, with a cost of Rs.10,000/-. It is sincerely hoped that the State will take corrective measures to avoid the repetition of such incidents. 27. In view of the above, the present petition stands disposed of, so also the pending miscellaneous application(s), if any. 28. A copy of the judgment, along with records of the learned Trial Court, be sent back forthwith.