Page No. 1/13 2026:GAU-AS:12774 THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) WRIT PETITION (C) NO. 779/2025 1. Dr. Manohar Kalita, S/o- Late Biswa Chandra Kalita, R/o- Flat No. F-3, J.D. Apartment, Kachari Garigaon, Jalukbari, 781014. 2. Utpal Lahkar, S/o- Tarini Lahkar, R/o- Flat No. B-5, J.D. Apartment, Kachari Garigaon, Jalukbari, 781014. 3. Mallika Kalita, D/o- Late Chandi Charan Kalita, R/o- Flat No. D-3, J.D. Apartment, Kachari Garigaon, Jalukbari, 781014. 4. Balin Das, S/o- Tapendra Lal Das, R/o- Flat No. A-4, J.D. Apartment, Kachari Garigaon, Jalukbari, 781014. 5. Rita Pathak, D/o- Dhaneswar Das, R/o- Flat No. D-2, J.D. Apartment, Kachari Garigaon, Jalukbari, 781014. 6. Manoj Kumar Das, S/o- Dhiren Das, R/o- Flat No. B- 3, J.D. Apartment, Kachari Garigaon, Jalukbari, 781014. 7. Himangshu Ranjan Kakati, S/o- Puspa Ram Kakati, R/o- Flat No. F-7, J.D. Apartment, Kachari Garigaon, Jalukbari, 781014. All the above named petitioners are resident of Village – J.D. Apartment, Kachari Garigaon under Mouza – GAHC010023682025 Page No. 2/13 Jalukbari, P.O.- Garigaon P.S.- Jalukbari, District- Kamrup [Metro], Assam. ………………Petitioners -Versus- 1. The State of Assam represented by the Commissioner and Secretary to the Government of Assam, Revenue and Disaster Management Department, Guwahati-6. 2. The Commissioner and Secretary to the Government of Assam, Revenue and Disaster Management Department, Dispur, Guwahati-06. 3. The Circle Officer, Guwahati Revenue Circle, Ulubari, Guwahati. 4. The Guwahati Metropolitan Development Authority represented by its Secretary, Bhangagarh, Guwahati- 5. 5. The Guwahati Municipal Corporation represented by its Municipal Secretary, Latasil, Uzan Bazar, Guwahati-3. 6. The Officer-in-Charge, Jalukbari Police Station, Maligaon Chariali, Guwahati. 7. Tulu Prabha Das @ Tulu Das, Wife of Late Mamot Chandra Das. 8. Atul Chandra Das, Son of Late Mamot Chandra Das. 9. Dipak Chandra Das, Son of Late Mamot Chandra Das. 10. Moloya Das, Daughter of Late Mamot Chandra Das. 11. Geeta Das, Daughter of Late Mamot Chandra Das. Page No. 3/13 All residents of Village – Garigaon, near Assam Forest School, Jalukbari, Guwahati-781013. ……………….Respondents BEFORE HON’BLE MR. JUSTICE MANISH CHOUDHURY Advocates : Petitioner : Mr. S.K. Talukdar, Advocate Respondent nos. 1 & 2 : Ms. N. Bordoloi, Standing Counsel, Revenue & Disaster Management Department, Government of Assam Respondent nos. 3 & 6 : Mr. N. Goswami, Junior Government Advocate, Assam Respondent nos. 4 & 5 : Mr. S. Bora, Standing Counsel, GMDA & GMC Respondent nos. 7 – 11 : Mr. P.C. Dey, Advocate Date on which judgment is reserved : NA Date of pronouncement of judgment : 25.08.2026 Whether the pronouncement is of the Operative part of the judgment? : No Whether the full judgment has been Pronounced ? : Yes Page No. 4/13 JUDGMENT & ORDER Invoking the extra-ordinary and discretionary jurisdiction under Article 226 of the Constitution of India, the petitioners have filed this writ petition seeking inter alia a direction to the respondent nos. 3 – 6 to execute an Order dated 16.12.2020 passed by the Additional District Magistrate [ADM], Kamrup Metropolitan District, Guwahati, Assam in Misc. Case no. 50m/2018. The petitioners have also sought for a direction to the respondent nos. 3 – 6 to remove the obstruction in the form of an Iron Gate erected on a public road, as indicated in the Order dated 16.12.2020. 2. The petitioners, seven in nos., have joined together to file this writ petition stating that they have a common cause of action. As per the facts projected, the petitioners purchased flats individually in an apartment complex, known as ‘J.D. Apartment Complex’, which is constructed on a plot of land measuring 14.63 Ares, covered by Dag no. 599 & 605 of K.P. Patta no. 45, situate at Village – Kachari Garigaon, Mouza – Jalukbari, Kamrup Metropolitan District, Assam [‘the subject- plot’, for short]. According to the petitioners, the subject-plot is bounded as follows :- North – Road; South – Khageswari Das; East – Mr. Sarbeswar Das; and West – Tulu Prabha Das [the respondent no. 7. 3. It is stated that a public road goes in front of the apartment complex, J.D. Apartment. The public road falls within Dag no. 687 and has a width of 4.80 meter – 7.30 meter. It is stated that one Smti. Usha Rani Das submitted an application for correction of land records stating inter alia that a parcel of land measuring 11 Lessas under Dag no. 598 of K.P. Patta no. 149 at Village – Kachari Garigaon was being used as road by the residents of the locality. In an Order passed on 01.12.2012 by the ADM, Kamrup Metropolitan District, it was reported that though there were six Pattadars in respect of the parcel of land measuring 11 Lessas Page No. 5/13 under Dag no. 598, the applicant [Smti. Usha Rani Das] had shown that the said parcel of land was being used as road and therefore, the said parcel of land should be reserved as road by making it a Government land. On the basis of a Report submitted by the jurisdictional Circle Officer and the Lat Mandal, the ADM, Kamrup Metropolitan District ordered to reserve the parcel of land measuring 11 Lessas under Dag no. 598 of K.P. Patta no. 149 at Village – Kachari Garigaon as Government land for the benefit of the public. The land records, etc., were ordered to be modified accordingly. The Order dated 01.12.2012 has been questioned by the learned counsel for the respondent nos. 7 – 11 by submitting that it is a susceptible order in that no periodic patta land can be converted into Government land in such a manner. As the Order dated 01.12.2012 is not challenged independently, it is not required to examine susceptibility or otherwise of the Order dated 01.12.2012 in this writ petition. 4. According to the petitioners, one Smti. Tulu Prabha Das [the respondent no. 7] who was not impleaded as party-respondent at the time of filing the writ petition, and her family members constructed a septic tank allegedly on the public road in front of the apartment complex. Finding that the septic tank besides causing obstruction to the public, had also brought threat to public hygiene and safety, the petitioners lodged a complaint before the respondent no. 6. According to the petitioner, though the respondent no. 6 visited the site, no action was taken thereafter. The petitioners have stated that considering the safety of the apartment owners, the builder shifted the gate of the apartment complex to avoid the septic tank, allegedly constructed in an unauthorised manner. The petitioners have further stated that taking advantage of the shifting of the gate, the respondent no. 7 and her family members at once constructed pillars and installed an Iron Gate in the middle of the public road, by taking advantage of the pandal erected at the time of a religious shradha ceremony due to demise one of their relatives on Page No. 6/13 06.05.2018. The respondent no. 7 and her family members had constructed permanent pillars/structure and installed an Iron Gate in the midst of the public road, covered by Dag no. 687. Alleging such acts of installation of Iron Gate on the part of the respondent no. 7 and her family members as unauthorised, the petitioners and few others had filed an application under Section 133, Code of Criminal Procedure, 1973 [‘the Code’ and/or ‘CrPC’, for short] seeking removal of unlawful obstruction, structure and nuisance from the public road. The said application was registered and numbered as Misc. Case no. 50m/2018. The Order dated 16.12.2020 under reference, was passed under Section 133, CrPC in the course of the proceedings of Misc. Case no. 50m/2018. 5. I have heard Mr. S.K. Talukdar, learned counsel for the petitioners; Ms. N. Bordoloi, learned Standing Counsel, Revenue & Disaster Management Department, Government of Assam for the respondent nos. 1 & 2; Mr. N. Goswami, learned Junior Government Advocate, Assam for the respondent nos. 3 & 6; Mr. S. Bora, learned Standing Counsel, Guwahati Metropolitan Development Authority [GMDA] & Guwahati Municipal Corporation [GMC] for the respondent nos. 4 & 5; and Mr. P.C. Dey, learned counsel for the respondent nos. 7 – 11. 6. Mr. Talukdar, learned counsel appearing for the petitioners has submitted that there have been inactions on the part of the authorities in the GMC and the GMDA to act on the basis of the Order dated 16.12.2020. He has submitted that an obligation is cast on the GMC under Section 349 of the Guwahati Municipal Corporation Act, 1971 [‘the GMC Act’] and on the GMDA under Section 61 of the Guwahati Metropolitan Development Authority Act, 1985 [‘the GMDA Act’]. He has contended that it falls within their duties to remove any construction made on Government land without any permission. Admittedly, the construction of the Iron Gate, erected by the respondent no. 7 and her family members, is on a Government land, which is used as a public road Page No. 7/13 by the residents of the locality, as well as by the petitioners and other apartment owners of J.D. Apartment Complex. Therefore, such directions, as sought for in this writ petition, are called for. 7. The learned counsel appearing for the respondents have submitted that the Order dated 16.12.2020 was passed by the ADM, Kamrup Metropolitan District and the said authority is not made a party- respondent in the present writ petition. It is further submitted that though in Misc. Case no. 50m/2018, the party-respondent no. 7 to the party-respondent no. 11 were 2nd party, the petitioners deliberately did not make them party-respondents in the present writ petition at the time of filing the writ petition. They have submitted notwithstanding the above deficiencies, the Order dated 16.12.2020 is admittedly an Order under Section 133, CrPC and therefore, it is only a conditional order, meaning thereby, it did not attain any finality under Section 138, CrPC. The petitioners instead of pursuing the remedy provided by the CrPC to bring the Order under Section 133, CrPC to any finality under Section 138, CrPC had approached this Court by the present writ petition, with abnormal delay of about five years, seeking the above reliefs. Therefore, the writ petition is liable to be dismissed. 8. I have considered the submissions of the learned counsel for the parties and have gone through the materials brought on record, more particularly, the contents of the Order dated 16.12.2020. 9. Admittedly, the Order dated 16.12.2020 was passed by the ADM, Kamrup Metropolitan District exercising power under Section 133, CrPC. The said fact is evident from the Order itself, which is annexed as Annexure-5 to the writ petition. 10. The case, Misc. Case no. 50m/2018 was registered at the instance of an application filed by the 1st party consisting of twelve applicants including Page No. 8/13 the present seven writ petitioners. After filing of the application by the 1st party, a Report was submitted by the Officer In-Charge, Jalukbari Police Station on 14.06.2018. The 2nd party was put to notice. Thereafter, upon perusal of a Report submitted by the respondent no. 3 on 23.10.2019, the ADM, Kamrup Metropolitan District formed a view that the Iron Gate was erected on a Government land, covered by Dag no. 687, which was in front of the apartment complex, where the members of the 1st party reside. The septic tank was, however, found constructed on Patta land owned by the 2nd party. Based on the findings made in the Report, the ADM, Kamrup Metropolitan District had observed that the Iron Gate was erected on the Government land, covered by Dag no. 687, has been creating disturbances to the public residing in the apartment complex, J.D. Apartment Complex in their peaceful movement. Thus, the 2nd party members were directed to shift the Iron Gate to another suitable place, where it would not create any disturbance to the members of the 1st party. The ADM, Kamrup Metropolitan District had further observed that as the septic tank was constructed on Patta land, covered by Dag no. 589 under Patta no. 61, owned by the 2nd party, the removal or shifting of the septic tank did not arise. The respondent no. 6 was directed to serve the Order upon the parties and to report compliance, and also, to see that peace between the parties was maintained during the pendency of the proceedings. With the aforesaid observations and directions, the proceedings of Misc. Case no. 50m/2018 was disposed of. 11. At this juncture, it is relevant to refer to the provisions of Chapter X-B with the nominal heading, ‘Public nuisances’ of the Code of Criminal Precedure, 1973, which contained provisions from Section 133 to Section 143, CrPC. 12. Section 133, CrPC provided for ‘Conditional order for removal of nuisance’. Sub-section [1] of Section 133, CrPC had inter alia provided that whenever a District Magistrate or a Sub-divisional Magistrate or any Page No. 9/13 other Executive Magistrate specially empowered in that behalf by the State Government, on receiving a report of a Police Officer or other information and on taking such evidence [if any] as he would think fit, consider inter alia 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; such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, within a time to be fixed in the order, to remove such obstruction or nuisance; 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 thereinafter provided, why the order should not be made absolute. 13. Section 134, CrPC had provided for service or notification of the order passed under Section 133, CrPC and Section 135, CrPC had provided that the person against whom conditional order under Section 133, CrPC had been made shall – [a] perform, within the time and in the manner specified in the order, the act directed thereby; or [b] appear in accordance with such order and show cause against the same. It was provided in Section 136, CrPC that if such person did not perform such act or appear and show cause, he shall be liable to the penalty prescribed in that behalf in Section 188 of the Indian Penal Code and the order shall made absolute. 14. The provisions of Section 137 and Section 138 of the Code are extracted hereinbelow for ready reference :- 137. Procedure where existence of public right is denied.- [1] Where an order is made under Section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was Page No. 10/13 made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under Section 138, inquire into the matter. [2] If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Court; and, if he finds that there is no such evidence, he shall proceed as laid down in Section 138. [3] A person who has, on being questioned by the Magistrate under sub-section [1], failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial. 138. Procedure where he appears to show cause.- [1] If the person against whom an order under Section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons-case. [2] If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be, with such modification. [3] If the Magistrate is not so satisfied, no further proceedings shall be taken in the case. 15. From combined reading of Section 137 and Section 138 of the Code, it is discernible that where a conditional order is made under Section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on Page No. 11/13 the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under Section 138, inquire into the matter. If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent court; and, if he finds that there is no such evidence, he shall proceed as laid down in Section 138. A person who has, on being questioned by the Magistrate fails to deny the existence of any public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial. 15.1. If the person against whom an order under Section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons-case, as prescribed by sub-section [1] of Section 138. If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be, with such modification. If the Magistrate is not so satisfied, no further proceedings shall be taken in the case. 15.2. Similarly, if the person does not perform the act specified in the conditional order, or fails to appear, or show cause, the conditional order can be made absolute under Section 136 of the Code. 16. Thus, from the provisions of Chapter X-B, it is evidently clear that an order passed under Section 138, CrPC is only a conditional order and it can only be made absolute either under Section 136 or under Section 138, after following the procedure laid down in Section 134 to Section Page No. 12/13 137 of the Code. But from the Order dated 16.12.2020, it is evident that the ADM, Kamrup Metropolitan District while passing the Order under Section 133, CrPC, had disposed of the case, Misc. Case no. 50m/2018, entirely without making the order absolute. The petitioners have failed to show that the conditional Order dated 16.12.2020 passed in Misc. Case no. 50m/2018 had been made absolute by any subsequent order passed either under Section 136 or under Section 138, as the case may be. Thus, the Order dated 16.12.2020 remained a conditional Order. As per Section 138, CrPC, there can be two possibilities at the time of passing the final order under Section 138, CrPC : firstly, the conditional order could have been made absolute, without modification or, as the case may be, with modification; and secondly, the Magistrate can direct that no further proceeding would be continued, consequently, the proceeding could have been dropped. 17. In view of the fact that the Order dated 16.12.2020 was merely a conditional Order and it had not made absolute subsequently, this Court does not find any merit in the contention of the petitioners that the respondent authorities in the GMC and GMDA are duty bound under Section 349, GMC Act, 1971 and under Section 61 of the GMDA Act, 1985 respectively to proceed further to remove the alleged unauthorised construction, as mentioned in the conditional Order dated 16.12.2020 passed by the ADM, Kamrup Metropolitan District on the basis of the conditional Order dated 16.12.2020. This Court also finds force in the submission of the learned counsel for the respondents that after passing of the conditional Order by the ADM, Kamrup Metropolitan District on 16.12.2020, the petitioners had waited for a period of more than four years to prefer the writ petition without pursuing the remedy which was available to the petitioners under the Code and such inaction on the part of the petitioners is clearly suggestive of laches on the part of the petitioners. Page No. 13/13 18. The petitioners were having efficacious and alternative remedy to pursue the conditional Order dated 16.12.2020, whereby the application registered and numbered as Misc. Case no. 50m/2018 itself was noticeably disposed of, within the provisions of the Code to make the conditional order absolute, or to challenge decision of not making the order absolute, and after having not availed such remedy, the petitioners have approached this Court seeking such directions, mentioned above, by invoking the extra-ordinary and discretionary jurisdiction under Article 226 of the Constitution which, in essence, would amount to execution of the conditional Order dated 16.12.2020. If this Court converts itself to the executing court to execute such a conditional order passed under Section 133, CrPC and entertain such writ petition under Article 226 of the Constitution of India for execution of such conditional order, the High Court would be relegated to the position of an executing court, which, in the considered view of this Court, is not called for. 19. In view of the discussions made above and for the reasons assigned therein, this Court finds no merit in this writ petition and it is therefore, liable to be dismissed. It is accordingly, dismissed. 20. It is, however, clarified that the alleged act is a cause of public nuisance, this Order shall not stand in the way for an aggrieved party to take recourse to appropriate remedy as is permissible under the law. JUDGE Comparing Assistant Ananta Konwar 2026.09.03 16:17:43 +05'30'