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Jamia Millia Islamia Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCrl. Misc. (M) 232/82
Judge
Reported in29(1986)DLT31
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 133 and 482
AppellantJamia Millia Islamia
RespondentState and ors.
Appellant Advocate D.C. Mathur,; Ranjit Kumar and; D.K. Mathur, Advs
Respondent Advocate R.N. Vats, Adv.
DispositionPetition dismissed
Excerpt:
.....court ruled that the opinion of the magistrate about the place in question as to whether it was a public place or not could not be interfered with by high court in exercise of its inherent jurisdiction so as to substitute its own opinion for that of the magistrate under section 133 written with section 482 of the criminal procedure code, 1973. - - it appears that during the pendency of the inquiry, the petitioner erected some iron poles in the path way in dispute with a view to obstruct the normal traffic of vehicles like motor cars, taxis etc. as well as the order dated may 11, 1982 be quashed. the learned counsel for the petitioner argued that the aforesaid orders clearly showed that an attempt to establish that the pathway in dispute was a public place had miserably failed and..........the petitioner emphatically argued that section 133 of the code had no application unless it was a public place from which the alleged unlawful obstruction or nuisance is to be removed, that in the present case it had not been alleged in the complaint of respondents no. 2 to 25 that the passage in question was a 'public' place and that, thereforee, on the allegations made in the complaint itself, respondents 2 to 25 have no case. hence, according to him, the entire proceedings before the learned sub divisional magistrate were illegal and liable to be quashed. in the alternative, contention of the learned counsel was that it appeared from the field map, copy of which had been placed on record, that the path-way in dispute was private property and that hence, the proceedings under section.....
Judgment:

G.R. Luthra, J.

1. The present petition, which is under Section 482 of the Code of Criminal Procedure, (hereinafter referred to as the `Code'), seeks to invoke the inherent jurisdiction for quashing the proceedings initiated under Section 133 of the Code and an order dated May 11, 1982.

2. The petitioner, Jamia Millia Islamia, is an educational institution and is a duly recognized university by he University Grants Commission Act. It was allotted an area of about 200 acres as an educational and research institute within the union territory of Delhi. That land is near Okhla headworks.

3. Respondents 2 to 25 are residents of a locality near to the petitioner university. That locality is called `Gafoor Nagar Colony'. They filed a petition under Section 133 of the Code before a Sub Divisional Magistrate, Delhi to the effect that there was a public pathway existing between Gafoor Nagar Colony and main Okhla Road, That that public pathway existing between Gafoor Nagar Colony and main Okhla Road, that that pubic path was being obstructed by the petitioner by way of digging trenches and raising walls which constituted nuisance and that, thereforee, the said nuisance be removed. Shri R. Chandra Mohan, Sub Divisional Magistrate, Delhi passed an order dated October 14, 1981 to the effect that Jamia Millia Islamia should not cause obstruction and nuisance to the persons using the public path way leading from Mohd. Ali Road to Batala House running around the colony Gafoor Nagar and lying between the extreme eastern and western boundary walls of Dr. Zakir Hussain Library and Dr. Zakir Hussain Memorial Museum by digging trenches or by raising alls. The petitioner was called upon to show cause, if any, against the said order by appearing on 23rd October 1981 at 10 a.m.

4. The petitioner appeared and filed a reply, to the complaint of respondents 2 to 25. It was contended that Gafoor Nagar was an unauthorized colony, that the same had been set up on the land of the former without any permission or consent of the former, that the alleged path was a private property of the former and that, thereforee, there was hardly any justification for taking any proceedings under Section 133 of the Code.

5. The learned Sub Divisional Magistrate started taking proceedings and also recorded some evidence. It appears that during the pendency of the inquiry, the petitioner erected some iron poles in the path way in dispute with a view to obstruct the normal traffic of vehicles like motor cars, taxis etc. to Ghafoor Nagar. Shri G.G. Saxena, who by that time had taken over as S.D.M. passed an order dated May 11, 1982 whereby the petitioner was directed to remove any obstruction put by it after passing of the conditional order dated October 14, 1081. By way of this petition, the petitioner desires that the proceedings pending before the learned S.D.M. as well as the order dated May 11, 1982 be quashed.

6. I have heard the learned counsel for the parties. The learned counsel for the petitioner emphatically argued that Section 133 of the Code had no application unless it was a public place from which the alleged unlawful obstruction or nuisance is to be removed, that in the present case it had not been alleged in the complaint of respondents No. 2 to 25 that the passage in question was a 'public' place and that, thereforee, on the allegations made in the complaint itself, respondents 2 to 25 have no case. Hence, according to him, the entire proceedings before the learned Sub Divisional Magistrate were illegal and liable to be quashed. In the alternative, contention of the learned counsel was that it appeared from the field map, copy of which had been placed on record, that the path-way in dispute was private property and that hence, the proceedings under Section 133 of the Code could not be taken. Reliance by the learned counsel was also place on certified copies of orders of Subordinate Judges, Delhi. The first copy is of an order dated 30th October 1979 of Shri T.D. Keshav, Sub Judge, 1st Class, Delhi, which shows that one Ghafoor Basti Haji Mohalla Welfare Society brought a suit against the present petitioner for issue of a perpetual injunction restraining the petitioner from closing any roads leading to Ghafoor Nagar, that during the pendency of that suit, an application for issue of temporary injunction to the same effect was filed and that the said application was dismissed. The other certified copy is of an order dated 25th November 1980 of Shri S.K. Tandon, Sub Judge, 1st Class, Delhi, dismissing in default a suit for issue of perpetual injunction filed by the aforesaid Ghafoor Basti Haji Mohalla Welfare Society. The learned counsel for the petitioner argued that the aforesaid orders clearly showed that an attempt to establish that the pathway in dispute was a public place had miserably failed and that, thereforee, the proceedings under Section 133 of the Code could not be maintained.

7. I do not agree with the learned counsel for the petitioner that respondents 2 to 25 did not make any allegation, in their complaint before the Sub Divisional Magistrate to the effect that the passage in question was a public place. They have asserted that they have been using that passage which means they were urging that the passage in question was a public place. In the prayer clause they have also mentioned that the obstruction from the public place should be removed. We have to take the substance of the assertions of the complainants and having regard to the same I am of the opinion that they are describing the passage in question as a public place so as to attract the provisions of Section 133 of the Code.

8. The evidence which is being relied upon by the petitioner, in the shape of field map and the copies of the judgments of the civil courts, has to be considered along with other evidence for arriving at its own conclusion. This matter involves questions of fact on which opinion is to be given by the learned Sub Divisional Magistrate and the High Court obviously is not to substitute itself in place of the said court. I do not find that any injustice is being done to the petitioner removal of which calls for exercise of inherent powers. The learned Sub Divisional Magistrate should be allowed to hold the inquiry and if there is any adverse decision, the petitioner can resort to an appropriate remedy provided by law.

9. Under these circumstances I dismiss the petition.


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