1 S. No. 18 Regular Cause List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CRM(M) No.406/2023 CrlM No.979/2023 AB. REHMAN WAGAY …Petitioner(s) Through: Mr. Syed Sajad Geelani, Advocate. Vs. KHAZIR MOHAMMAD WANIK AND ORS. ...Respondent(s) Through: Mr. P. S. Ahmad, Advocate. CORAM: HON’BLE MR JUSTICE JAVED IQBAL WANI, JUDGE ORDER 29.08.2025 (ORAL) 1. The petitioner herein has invoked inherent power of this Court enshrined under Section 482 CrPC (now Section 528 BNSS) for quashing order dated 31.07.2023 passed by the Court of Principal Sessions Judge Anantnag in revision titled as “Khazir Mohd Wani and Anr. Vs. Ab. Rehman Wagay and Ors.,” 2. Facts emerging from the record would reveal that the petitioner herein filed an application under Section 133 of the Code of Criminal Procedure before Tehsildar (Executive Magistrate 1st Class) Shangus, respondent 3 herein alleging therein the said application that 04 walnut trees standing over the land of respondent 2 herein covered under Survey No. 1480 in estate Nowgam are spreading over his residential house wherein ICDS Centre Ladibal Nowgam is functioning and the branches of said trees are causing imminent danger to the staff and children of said ICDS Centre besides, the life and property of the petitioner whereupon the respondent 3 herein, entrusted the said application for conducting an on-spot inspection to respondent 4 herein, vide order dated 18.01.2023 and 24.01.2023, whereafter in the report submitted thereof, it came to be stated that 2 branches of 04 walnut trees falling under Survey No. 1480 are actually spreading over the residential house of the petitioner and has caused damage to the fence and the said residential house of the petitioner herein and that in case of inclement weather condition, there is every apprehension of threat to the life of the petitioner herein. An earlier report of the Chief Horticulture Officer Anantnag dated 10.11.2022 have had also reported about the position of the said walnut trees, stating that the said trees are semi-dried and partially affected with stem borer and other kinds of pesticides and diseases. Besides report from the Child Project Officer Shangus sought by the respondent 3 furnished on 01.02.2023 as well, provided that the walnut trees in question have blocked the road of Anganwadi Centre and had requested for cutting down of the said trees. 3. The respondent 3 herein upon receipt of the said reports as passed interim order directing the respondent 2 herein to cut down/pruning of walnut trees in question, the branches of which are spreading over the residential house of the petitioner, within two weeks' time and subsequently the said order came to be confirmed by respondent 3 on 28.03.2023 after inviting and considering the objections from the respondents as also affording an opportunity of hearing therein the said application. 4. Aggrieved of the aforesaid order of respondent 3, respondents 1 and 2 herein preferred a revision petition before the Court of Principal Sessions Judge Anantnag, (for short ‘the revisional court’) contending therein the said revision petition that the parties are, in fact, litigating in a civil suit, qua the said walnut trees and that otherwise also the nuisance alleged by the petitioner herein does not qualify to be a public nuisance attracting the provisions of Section 133 CrPC. 5. The revisional court while accepting the said revision in terms of impugned order set aside the order passed by respondent 3, while holding that respondent 3 herein was not authorized to take cognizance of the issue under Section 133 CrPC, being a private nuisance between the parties and not a public nuisance. 3 6. The petitioner herein while challenging the impugned order of the revisional court, has maintained the instant petition on multiple grounds urged in the petition. Heard counsel for the parties and perused the record. 7. Section 133 CrPC provides for removal of nuisance and the power vested unto the Magistrate under the said Section can be exercised either on receipt of a police report or other information under following circumstances enumerated therein the said Section; a) The unlawful obstruction or nuisance to any public place or to any way, river or channel used by the public. b) The conduct of any trade or occupation, or keeping of any goods or merchandise, is injurious to the health or physical comfort of the community. c) The construction of any building, or the disposal of any substance, as is likely to occasion configuration or explosion. d) The building, tent or structure or a tree as is likely to fall or cause injury to person. e) An unfenced tank well or excavation near public way or place and f) A dangerous animal requiring destruction confinement or disposal. 8. Reverting back to the case in hand, petitioner herein indisputably alleged before the respondent 3 herein that the branches of the walnut trees in question belonging to the respondent 2 herein are spreading over his property consisting the residential house and land underneath and appurtenant thereto wherein an Anganwadi Centre is also established and run being used by the staff and students of the said Anganwadi Centre and that the same have caused damage to his boundary wall of the residential house and are also an imminent threat to the staff and student of the Anganwadi Centre. 9. It is also not in dispute that the respondent 3 herein though initially passed an ex-parte interim order on 15.02.2023, requiring the respondents herein to cut down the said branches of the said trees, 4 however, after receiving reports in connection therewith the said trees and the nuisance alleged by the petitioner herein and after hearing the parties in terms of order dated 05.04.2023 confirmed the said interim order while holding that such trees need to be cut down as the same pose a threat to the life and property of the appellant/petitioner herein. 10. It is also not in dispute that the said order came to be questioned by the respondents herein before the revisional court, fundamentally on the premise that the dispute inter-se the parties qua the said trees is subject matter of a civil suit pending before the court of Principal Sessions Judge, Anantnag, and that otherwise also the nuisance alleged by the petitioner herein does not fall within the ambit and scope of Section 133 CrPC. 11. Record reveals that based upon the said contentions of the respondents, the revisional court reversed the order of the respondent 3 herein on the premise that the nuisance is not falling within the ambit and scope of Section 133 CrPC and, in essence consists of a private nuisance which is not amenable to the jurisdiction of the Magistrate under Section 133 CrPC and that the Magistrate, having exercised jurisdiction, has erred in law. A deeper and closer examination of the impugned order in particular and the record available on the file in general manifestly tends to show that the revisional court has not only overlooked the provisions of Section 133 clause (d) but has also not considered rather ignored the report of the Child Development Project Officer inasmuch as the plea of the petitioner herein that an Anganwadi Centre is operating in his said residential house being used by the staff and students having not been denied by respondents herein either in their objection before the Magistrate or else in the revision petition before the revisional court and instead proceeded to set aside the orders of the Magistrate not only on account of non-existence of public nuisance pleaded by the respondents herein, but also on account of pendency of the civil suit inter se the parties in regard thereto. 12. 12. It is also significant to mention here that it is the consistent view of the courts that the pendency of a civil suit or even operation of an 5 injunction inasmuch as the fact that the dispute is of civil nature would not bar the initiation of the proceedings under Section 133 CrPC by the Magistrate and that proceedings under Section 133 CrPC even in presence of a civil suit, can continue as there is no bar provided under law in this regard. This view has been expressed by the Allahabad and Rajasthan High Courts respectively in case titled as “Qamar Jahan and Ors., Vs. State of U.P”, reported in 1997 Criminal Law Journal 3810 and in case titled “Ram Lal Vs. State of Rajasthan” reported in 1994 (1)Crimes 402. 13. For what has been observed, considered and analyzed hereinabove, the matter needs to be remanded back for reconsideration before the revisional court, in that, the said court seemingly has not adverted appropriately to the same. 14. Accordingly, the instant petition is allowed and impugned order dated 31.07.2023 passed by the Court of Principal Sessions Judge Anantnag, is set-aside with a direction to the said Court to revisit and reconsider the revision petition and to pass fresh orders thereon in accordance with law. The matter be considered and decided preferably within a period of four weeks from the date a copy of this order is produced by petitioner before the said court. 15. Parties to appear before the Principal Sessions Judge, Anantnag on 15.09.2025. 16. Disposed of along with all connected applications. (JAVED IQBAL WANI) JUDGE SRINAGAR 29.08.2025 Ishaq Whether the order is speaking ? Yes Whether approved for reporting? Yes