P L D 2019 Lahore 751 (PLP)

FAROOQ HAIDER, J.

Through this petition filed under Section 561-A Cr.P.C., orders dated 12.07.2019 and 19.07.2019 passed by learned Magistrate Section-30, Shakargarh and upheld by learned Additional Sessions Judge, Shakargarh/ revisional Court vide order dated 02.08.2019 have been challenged with the following prayer: -- "In view of above, it is therefore most respectfully prayed that the instant petition may very kindly be accepted and the impugned orders dated 12.07.2019, 19.07.2019 as well as order dated 02.08.2019 passed by learned respondent No.01 may very kindly be declared as illegal, unlawful and void ab-initio; and both the impugned orders passed by both the courts below may very kindly be ordered to be set-aside or recalled and the complaint filed by the respondent No.02 may very kindly be rejected or dismissed, in the interest of justice and equity. It is also prayed that till final disposal of the titled petition, the impugned orders passed by both the learned trial courts below vide orders dated 12.07.2019, 19.07.2019 and 02.08.2019 may also be suspended and the proceedings pending before the learned trial court be also stayed, in any manner whatsoever"

2. Brief facts for disposal of this petition are that on 26.06.2019 Waris Ali/respondent No.2 filed complaint under Section 133 Cr.P.C. before learned Area Magistrate while mentioning therein that Khushi Muhammad (present petitioner) has illegally filled some portion of "chapper ( )" of the village with clay ( ), erected "wat ( )" there, created an "obstruction" in the channel/water passage and thus blocked the passage of water, which was coming from village to "chapper ( )"; and prayed for removal of said "obstruction". After receipt of the complaint, learned Area Magistrate requisitioned the reports from concerned police and revenue authority; on receipt of aforementioned reports, learned Magistrate passed order dated 12.07.2019, relevant portion whereof is being reproduced: -- "Report of SHO and revenue officer perused. As per report of SHO the respondent has blocked the draining water of village by soil. It is also mentioned in the report that due to standing of draining water in the street there is chance of spreading of diseases. Keeping in view above stated facts, the respondent is directed to remove the obstacle till 19.07.2019 and let the drainage water flow at its natural course otherwise show cause as to why it should not be removed by the court and its expenses be recovered from you" On 19.07.2019, learned Magistrate in furtherance of order dated 12.07.2019 passed the following order: -- "Respondent himself not appeared to submit reply of show cause notice. He has also not removed the obstacle, so, SHO Police Station Shah Gharib is directed to remove the obstacle which is caused by Khushi Muhammad to restrict the flow of drainage water into his land nd submit report on or before 30.07.2019" Present petitioner filed revision petition against both aforementioned orders dated 12.07.2019 and 19.07.2019 before learned Additional Sessions Judge, Shakargarh/ Revisional Court, which was dismissed vide order dated 02.08.2019. Hence, this petition.

3. It has been argued by learned counsel for the petitioner that impugned orders dated 12.07.2019, 19.07.2019 and 02.08.2019 are against the law and facts of the case; no permission from learned Advocate General Punjab has been obtained by respondent No.2 for filing complaint under Section 133 Cr.P.C.; respondent No.2 was having no locus standi to file the complaint; Magistrate is not competent to entertain complaint under Section 133 Cr.P.C. and pass any order on the same, therefore impugned orders dated 12.07.2019, 19.07.2019 and 02.08.2019 are liable to be set aside.

4. On the other hand, learned Assistant Advocate General and Deputy Prosecutor General have opposed the contentions raised by learned counsel for the petitioner and supported the impugned orders.

5. Arguments heard. Record perused.

6. Subject of "public nuisance" is being dealt since beginning by civil law and criminal law separately; on the civil side, earlier, if suit was to be filed regarding public nuisance, then consent in writing of the Advocate General was to be obtained, however, through the Code of Civil Procedure (Punjab Amendment) Act, XIV of 2018, now it can be filed with the leave of the Court and in this regard, Section 91(1) Code of Civil Procedure, 1908 before and after aforementioned amendment is being reproduced for ready reference: - Before aforementioned Amendment "

91. Public nuisance.- (1) In the case of a public nuisance the Advocate General, or two or more persons having obtained the consent in writing of the Advocate General may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case. Now after aforementioned Amendment "

91. Public nuisance.- (1) In the case of a public nuisance the Advocate General, or two or more persons [with the leave of the Court], may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case. Perusal of aforementioned Sections 91(1) of Code of Civil Procedure, 1908 makes it crystal clear that previously "consent" of Advocate General and now "leave of the Court" is only necessary when civil suit is to be filed regarding public nuisance; in this regard, guidance has also been sought from the dictum laid down by the august Supreme Court of Pakistan in the case of "A. RAZZAK ADAMJEE and another v. Messrs DATARI CONSTRUCTION COMPANY (PRIVATE) LIMITED and another (2005 SCMR 142). Whereas, on criminal side, removal of "public nuisance" is being dealt by Chapter-X contained in Part-IV of Code of Criminal Procedure, 1898 (Sections 133 to 143). In order to understand the proposition in its true perspective it would be appropriate to reproduce relevant portions of Section 133 Cr.P.C.: -- "

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 any) as 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 .. that .. that .. that that 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 to be fixed in the order. to remove such obstruction or nuisance; or to to to .. to to .. to to .. or, if he objects so to do, to appear before himself or some other [Magistrate of the first class], at a time and place to be fixed by the order, and move to have the order set aside or modified in the manner hereinafter provided. (2) No order .. Explanation. A "public place" includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes" (emphasis added) Perusal of aforementioned provision of law clearly reveals that consent of Advocate General or leave of Court is not required for filing complaint under Section 133 Cr.P.C. or bringing machinery of criminal law into motion on the subject rather on police report or any other information and taking such evidence (if any) thought fit by the Magistrate, he can pass order for removal of obstruction or nuisance. Hence, contention raised by learned counsel for the petitioner that complaint under Section 133 Cr.P.C. filed before the learned Magistrate without consent/permission of Advocate General was not maintainable is without any substance and same is repelled with full force. As far as locus standi of respondent No.2 for filing criminal complaint is concerned, suffice to observe that being resident of said village and aggrieved by the alleged aforementioned obstruction caused by present petitioner, respondent No.2 was quite competent to file complaint under Section 133 Cr.P.C. before the learned Magistrate. It has also been noticed that on receipt of the complaint, learned Magistrate summoned reports from police and revenue authority, and thereafter passed conditional order (impugned order) on the basis of said report, therefore, same is absolutely within the four corners of law as required by Section 133 Cr.P.C. Perusal of impugned order dated 12.07.2019 further reveals that present petitioner was invited through said order to appear before the Court on 19.07.2019 and raise any objection on the same. It goes without saying that after issuance of the conditional order, present petitioner neither personally appeared before the Magistrate nor raised any objection on the same; he even did not move for setting aside or modifying the order. Perusal of record reveals that present petitioner has prima facie caused unlawful obstruction by filling some land of "Chapper" with clay and erecting wat ( )/Bund ( ), which resulted into blockage of passage of water from village to chapper, which act prima facie constitutes the `obstruction' as defined in Section 133 Cr.P.C. So both impugned orders i.e. dated 12.07.2019 followed by order dated 19.07.2019 passed by learned Magistrate are perfectly in accordance with law, therefore, those have been rightly upheld by the learned Additional Sessions Judge/Revisional Court vide impugned order dated 02.08.2019 mentioned above. Resultantly, instant petition is dismissed in limine. MWA/K-14/L Petition dismissed.