S.133 CrPC | Magistrate's Duty To Remove Encroachments From Public Properties 'Mandatory' In Nature; Orissa High Court Issues Guidelines

The Orissa High Court has issued a slew of guidelines to Executive Magistrates for the removal of encroachments from public properties. It has further clarified that any dereliction in complying with the guidelines would entail disciplinary action against such Magistrates.

Construing the duty of Magistrates under Section 133 of the Code of Criminal Procedure to be 'mandatory' in nature, the Division Bench of Chief Justice Chakradhari Sharan Singh and Justice Sangam Kumar Sahoo observed:

“In our opinion, once it is brought to the notice of the Magistrate, or if he, otherwise, comes to know about existence of obstruction/public nuisance, etc., as enumerated in Section 133 of the Code, he (Magistrate) is legally duty bound to swing into action at once inasmuch as his duties, in this regard, are directly concerned with public nuisance/unlawful obstruction, which may be injurious to health or physical comfort of public.”

The Court was hearing a writ petition in the nature of PIL filed by Advocate Trinath Panda seeking direction to the respondent authorities for the removal of encroachments and eviction of unlawful encroachers from some lands registered in favour of Saheed Laxman Nayak Medical College and Hospital, Koraput.

After perusing the petition, it came to the knowledge of the Court that despite representations being given to the relevant authorities for the removal of such unlawful encroachments, no action has been taken. Further, the Bench observed that such cases seeking removal of encroachments are being regularly filed in the Court through writ petitions.

The Court further remarked that though such grievances can be ventilated through statutory authorities as prescribed under Section 133, CrPC, due to the inaction on the part of such authorities, the Court is flooded with PILs seeking remedies.

“Because numerous cases in the shape of PIL are being filed in this Court seeking direction for removal of encroachments from public places or removal of obstruction or nuisance from public places and also for removal of substances, injurious to health, maintenance of hygiene, etc., coupled with admitted inaction, in the majority of the cases, on the part of the officials, we have formed a prima facie impression, in our mind, that it is largely because the authorities have failed to exercise the powers conferred upon them under Section 133 of the Code and other mandatory statutory provisions and thereby omitting to perform their corresponding duties imposed upon them under Section 133 of the Code, rendering the said provisions irrelevant, redundant and otiose,” it observed.

The Court held that the Magistrate has the statutory duty to proceed to make a conditional order, as contemplated under Section 133(i) of the Code if the report of a police officer or other information requires the exercise of the powers.

It also observed that “other information”, occurring in Section 133 of the Code, would obviously mean information given to the Magistrate by any person, or taken cognizance of by the Magistrate suo motu, as regards the existence of public nuisance/unlawful obstruction causing annoyance or injuries to health or physical comfort of a community or other factors as enumerated in Section 133 of the Code.

It was clearly spelt out that once a Magistrate receives any such information as aforesaid, he is duty bound to swing into action as prescribed under Section 133 of the Code and it is not up to his 'discretion' to take action.

Therefore, keeping the above legal position in mind, the Bench issued the following general directions:

1. Once a District Magistrate or Sub-Divisional Magistrate or any other Executive Magistrate, specially empowered in this regard by the State Government, receives an information, on the basis of a report of a police officer or otherwise, that condition precedent for exercise of power under sub-Section (i) of Section 133 of the Code are present, the Magistrate shall at once make a conditional order for removal of obstruction or nuisance from public place and it will be the bounden duty of the person—who may be a natural person or a juristic person, such as, a Municipal Body or a Gram Panchayat—to either comply with the order or appear in the proceeding and, upon appearance of the proceedee, the Magistrate shall be duty bound to ask the proceedee if he (the proceedee) wishes to deny the existence of facts leading to the conditional order and if the proceedee denies existence of any unlawful obstruction or nuisance on any public place or from any way, river or channel, which is or may be lawfully used by the public, and gives reliable evidence in support of such denial, the Magistrate shall stay further proceedings until a competent Court decides; but if the proceedee fails to give any reliable evidence in respect of denial of the existence of the facts leading to making of conditional order, the Magistrate shall order the proceedee to comply with the conditional order and, if the conditional order is not complied with and obeyed, penal consequences, as embodied in Section 188 of the Penal Code, shall follow.
2. It will be the duty of the Chief Executive Officer or any other Officer, specially authorized by him/Head of the local body, by whatever name he may be called, to inform or cause to be informed the District Magistrate, Sub-Divisional Magistrate or any other Magistrate, specially empowered in this behalf by the State Government, as regards existence of obstruction/nuisance and other factors, enumerated under Section 133(1) of the Code. The Officer-in-charge of the concerned police station shall also have similar duty to inform the Magistrate concerned under Section 133 of the Code. In the event, any public nuisance or unlawful obstruction of the nature, as provided under Section 133(1) of the Code, is found to be existing without any information to the concerned Magistrate, the Officer-in-charge of the concerned police station and the Chief Executive Officer or any other Officer, authorized on his behalf of the local body, shall be jointly responsible for inaction and will be liable for disciplinary action accordingly.
3. The Magistrate, upon receiving information, in the manner as aforesaid, shall proceed at once in accordance with Section 133(1) of the Code and pass appropriate order as required of him under the said provision. Any inaction or dereliction of duty by the Magistrate in this regard shall make him liable for disciplinary action.
4. A conditional order, if not objected to, or an order, which has been made absolute, shall have to be obeyed by all concerned and any disobedience of the order shall attract penal provisions of Section 188 of the Indian Penal Code.
5. The Tahasildar, within the meaning of Section 3(c) of the Odisha Prevention of Land Encroachment Act, 1972, shall also be duty-bound to act in accordance with the provisions of the Act once any case of unauthorized occupation of Government property is brought to his notice.

Before parting with the order, the Court warned that any disregard to the above guidelines shall result in inviting action for contempt of Court.

“This order must be followed with utmost scruples and without any demur. Any person, who is found to be not complying with the present order, shall be liable for disciplinary/criminal action apart from contempt of this Court.”

Case Title: Trinath Panda v. Commissioner-cum-Secretary, Health & Family Welfare Department, Government of Odisha & Ors.

Case No: W.P.(C) No. 3385 of 2024

Date of Judgment: February 21, 2024

Counsel for the Petitioner: Mr. Ghanashyam Dash, Advocate

Counsel for the Respondent: Mr. Lalatendu Samantray, Additional Government Advocate

Citation: 2024 LiveLaw (Ori) 17

Click Here To Read/Download Order