2017 PLP 256 (YLRN)

SALAHUDDIN PANHWAR, J.

Through instant Criminal Miscellaneous Application, applicant has assailed the order dated, 25.09.2014, whereby on Criminal Miscellaneous Application No.19/2014, learned Civil Judge and Judicial Magistrate, Khipro directed for eviction of the subject matter plot which was in occupation of taxi drivers as they were using the same as taxi stand.

2. Precisely, relevant facts for disposal of instant application are that residents of Khipro town moved application against taxi stand, taking plea that such taxi stand is causing nuisance in that area, and they are facing great hardship with regard to their easement rights.

3. Learned Magistrate called report from Assistant Commissioner as well as T.M.O. Khipro and such report reflects that they have not permitted respondents to use the area in question as taxi stand and that such property is owned by Governments for house of Mukhtiarkar and Tapedari Dera. Thereafter, direction was issued for removal of such taxi stand.

4. Learned counsel, for applicant inter alia contends that impugned order is in violation of sections 133(3), 134 and 135, Cr.P.C. no show-cause notice was issued; no proper procedure was followed; they are in occupation of that area/property owned by Governments since years; the Government authorities also invited tenders for taxi stand therefore, impugned order is not speaking and is in violation of mandatory provisions of law; learned Magistrate also issued verbal direction before passing such conditional order. In support of his contentions, learned counsel has placed reliance on the cases reported as PLD 1981 AJ&K 7, PLD 1966 (W.P.) Peshawar 9, 1989 PCr.LJ 2286, 1998 PCr.LJ 1457 and 1995 PCr.LJ 385.

5. Learned counsel for private respondents contended that in fact they are suffering great inconvenience to safeguard their easement rights, because of taxi stand as such taxi stand has created nuisance in the area which is in between close vicinity and residential houses; such property/area owned by Government authorities cannot be used in such type of business.

6. Pursuance to direction, Mukhtiarkar is present. He has filed statement along with comments, contending, therein that an illegal taxi stand was established on plot belonging to revenue department without any legal authority on the area of bungalow of Mukhtiarkar Khipro and Tapedari Dera; further it is contended that total area is 28611 sq. feet upon 3000 sq. feet bungalow of Mukhtiarkar is erected whereas 3000 sq. feet is reserved for Tapedari Dera and remaining plot is opened and can be used for amenity purpose like as children park in Khipro town. Mukhtiarkar present contends that whole area is not occupied by any person whereas learned counsel for applicant contends that some of the portion of that land is occupied, by private persons by constructing their houses whereas revenue authorities have no objection on such construction with mala fide motive.

7. It is further contended by learned APG that there is bus terminal and all buses vans can halt there, and in city buses, and vans are not allowed to halt more than 10 minutes, therefore, official authorities are inclined to accommodate the taxi drivers by adjusting them at bus terminal which is not on far distance from Khipro town.

8. On perusal of impugned order and record reflects that property in question is owned by revenue authorities and albeit there is claim of taxi-drivers who are plying their taxis and have taken plea on humanitarian ground that they are poor persons and since years they are running business on that area, therefore, they may not be dispossessed. It is worth to add here that owners of taxi cars have not come forward to contest this case.

9. It is necessary to make it clear here that the claim of inhabitants regarding existence of taxi stand a nuisance does fall within categories 1 and 2 so provided for exercise of jurisdiction by a Magistrate under section 133 of the Code. The same, being relevant, are referred herein below:

133. Conditional order for removal of nuisance.--(1) whenever a (Magistrate of the first class) considers, on receiving a police report or other information and on, taking such evidence (if an) us he thinks fit; That any unlawful obstruction or nuisance should be removed from any way, river or channel which is, or may be lawfully used by the public, or from any public place; or 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 From reading of the above, it is clear that such jurisdiction can well be exercised on an application even as this would fall within phrase or other information, used in section 133 of the Code. Since complain/ grievance, in application, was regarding 'unlawful obstruction', physical, discomfort of inhabitants from conduct of trade i.e. Taxi stand. Here it may be necessary to keep in mind that even lawful business or trade cannot be allowed to continue at the cost of 'physical discomfort of the public'. Thus, I can safely conclude that cognizance was rightly and properly taken onto the matter by the Magistrate concern.

10. I am not inclined to agree with the plea of the learned counsel for the applicant that show-cause notice was necessary to be given before passing the conditional order. The plain reading of the section 133 of the Code, nowhere, requires issuance of show-cause notice before passing a conditional order. The conditional order itself is a show-cause notice in its nature as is evident from jurisdiction, given by the Section 133 of the Code itself on satisfaction of Magistrate about fulfillment of any of the six, given categories. The same is: 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, tank, well or excavation or owning or possessing such animal or tree, within a time be fixed in the order;

11. Thus, an order requiring removal or regulating obstruction or nuisance etc. within a specified time, is not a final order but it is to be regarded as conditional one within four corners of section 133 of the Code. What is not disputed is the fact that this taxi stand is not legally sanctioned by the Government and has been a cause of physical discomfort of the inhabitants as the plot is within residential area. The bus terminal is available out of the town where official respondents are ready to accommodate the Taxi drivers with further undertaking that no van bus owner would be allowed to halt their bus or van permanently in city and same treatment would be given to all bus owners, van owners and taxi owners in accordance with law, therefore, prima facie applicant has no locus standi to occupy that area which is owned by revenue authorities.

12. With regard to case law, suffice to say that same is not applicable, as in such case law petitioners were running their business within their premises but on account of nuisance, proceedings were initiated but here taxi car owners occupied the area owned by revenue, hence were dispossessed.

13. In view of above, instant Criminal Miscellaneous Application being devoid of merits is hereby dismissed. However, S.D.M. and Mukhtiarkar with Director Settlement shall conduct demarcation. In case there is any encroachment, they shall remove such encroachment within two month with compliance report. The encroachment shall be removed without any discrimination as learned counsel for applicant pleaded that encroachment by some private persons is being ignored by official respondents. The concerned Magistrate is hereby directed to pay surprise visit(s) and ensure that no buses, vans and taxies are allowed to halt in the city more than 10 months. However, they can enter in the city for a temporary period and in case of any violation, concerned Magistrate as well concerned authorities would be entitled to take action in accordance with law. HBT/F-3/Sindh Application dismissed.