Orissa High Court
Jayakrishna Panigrahi And Ors. vs Hrusikesh Panda on 30 October, 1991
Equivalent citations: 1992 CriLJ 1056, 1992 I OLR 26
Author: G Pattnaik
Bench: G Patnaik, D Patnaik
G.B. Pattnaik, J.
1. This case has been referred to a Division Bench by a learned Single Judge of this Court as there was divergency of views with regard to interpretation of Section 133 of the Code of Criminal Procedure.
2. In the case of Khetrabasi Patnaik v. State 32 (1966) CLT 991, learned Single Judge came to the conclusion that where an old cocoanut tree leans towards the court-yard of the complainant and there is apprehension of danger to the human life, a Magistrate would have jurisdiction to entertain an application under Section 133 of the Code of Criminal Procedure as the nuisance would amount to a public nuisance. In Gayasundari Devi v. Jagannath Nayak and Anr. 55(1983) CLT 110, a learned Single Judge of this Court came to hold that Section 133 of the Code of Criminal Procedure would apply only when a public nuisance is caused and would not apply where the apprehension is confined to damage to a particular individual. In Lalmohan Patnaik v. Harihar Tripathy 36 (1970) CLT 148, another learned Single Judge was of the opinion that Section 133 Cr.P.C. is intended to protect the public as a whole against any inconvenience and the same is not intended to settle any private dispute between different members of the public. In Gayasundari's case as well as Lalmohan Patnaik's case, referred to supra. Khetrabasi Patnaik's case has not been noticed. In the case in hand our learned brother Justice V. Gopalaswamy, as he then was, accepted the view taken by this Court in Khetrabasi Patnaik's case but on account of divergency of views between the learned Single Judges of this Court as stated earlier thought it appropriate to refer the matter to a larger Bench. The question that arises for consideration is whether the provisions of Section 133 Cr.P.C. can be invoked for removal of "public nuisance" or it can be for removal of "nuisance" enumerated, in different clauses of Sub-section (1) of Section 133 Cr.P.C.
3. The petitioners are the second party members. The Sub-Divisional Magistrate, Cuttack called upon the petitioners to show cause as to why one of their palmtrees which is close to the house with asbestos roof of the first party, opposite party in the Misc. Case, will not be cut as danger is apprehended to the inmates of the house on account of the overhanging and learning of the said palm tree belonging to the petitioners. In stead of showing cause, the petitioners challenged the maintainability of the proceedings before the learned Sessions Judge, inter alia on the ground that danger apprehended to the members of the first party does not constitute public nuisance and, therefore, an application under Section 133 Cr.P.C. is not maintainable. The learned Sessions Judge came to the conclusion that on the facts and circumstances of the case an application under Section 133 Cr.PC is maintainable but as there had been failure of compliance of mandatory requirements under Section 141(2) Cr.P.C. the learned Sessions Judge quashed the order of the Magistrate dated 4-1-1981 and remitted the proceeding to the S D. M., Cuttack with the direction that he should comply with the requirements of law as contained in Section 141 or any other provision as is applicable to the facts and circumstances of the case. Being aggrieved by the said order, the petitioners have approached this Court, inter alia on the ground that a proceeding under Section 133 Cr.P.C. is not at all maintainable.
Admittedly, the opposite party made an application before the Magistrate alleging that the palm tree belonging to the petitioners leans dangerously over the asbestos roof on account of which the inmates of the house apprehended danger to their life and property as wall as to the life of others visiting to their house and, therefore, appropriate action under Section 133 Cr.P.C. may be taken. The Magistrate issued notice to show cause and considering the report of the local police and as the petitioners did not file any show cause directed the removal of the over-hanging tree. That order was assailed before the learned Sessions Judge by the petitioners and after the order of the learned Sessions Judge, the petitioners have moved this Court.
5. Mr. Sahu the learned counsel appearing for the petitioners raised the sole contention that on the allegations made as no danger is apprehended to the members of the public at large, the provisions of Section 133 Cr.P.C. cannot be invoked. In suport of this contention reliance has been placed on the heading of the Chapter X-B which deals with "public nuisance" and the decisions of this Court in Vol. XXV111 (1962) CLT 214(Prafulla Kumar Sahu and another v. Umasundari Devi) XXXVI (1970) CLT 143 Lalmohan Patnaik v. Harihar Tripathy) and 55 (1933) CLT 110 (Gayasundari Devi an J another v. Jagannath Nayak and another). It is contended by Mr. Sahu that where nuisance is caused to a private house owner, for removal of the said nuisance provisions of Section 133 Cr.P.C. are not attracted. Mr. Sahu also places reliance on the decisions of the Madhya Pradesh High Court in the case of Sardar Amarik Singh v. Sardar Baldeo Singh and Anr. (1984) (2) Crl. L. J. 83 and on the decision of the Allahabad High Court in the case of Raghubar Dutt (Dead) through his L. Rs v. Suresh Chandra and Ors. 1987 (3) CRIMES, 301.
6. Mr. R. K. Mohapatra, the learned counsel appearing for the opposite party on the other hand, contends that the heading of a Chapter cannot limit the plain and literal meaning of the statute itself particularly when the heading of Section 133 Cr.P.C. does not put a restrictive meaning and, on the other hand, indicates for passing of conditional order for removal of nuisance. He further contends that Clauses (c), (d) and (f) of Sub-section (1) of Section 133 Cr.P.C. do not make any reference to either "public" or "public place" and' therefore, there is no fetter on the power of the Magistrate to pass conditional order under Clauses (c), (d) and (f) even if the nuisance in question causes apprehension or danger to the life of an individual, adjacent owner or his family members. Mr. Mohapatra places reliance on the decision of this Court in Khetrabasi Patnaik's case referred to supra as well as on the decision reported in 1974 Cr. L. J. 522(Goa). He also relies upon the decision of the Rajsthan High Court in AIR 1S59. Raj. 44 (Achalchand v, Suraj Raj) as well as the decision of the Kerala High Court in 1962 (2) Cr. L. J. 666 (State of Kerala v. Chacko). The rival submissions require a careful examination on the points involved as well as the various decisions referred to above.
7. For better appreciation of the point in issue it would be appropriate to extract the provisions of Section 133 Cr.P.C. together, with the heading of the Chapter itself :
"B. Public nuisances
Conditional order for removal or nuisance.
133, (1) Whenever a District Magistrate or 3 Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government; on receiving the report of a police officer or other informal on and on taking such evidence (if any) as he thinks fit considers-
(a) 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 ; or
(b) 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
(c) that the construction of any building, or the disposal of any substance, as likely to occasion conflagration or explosion, should be prevented or stopped ; or
(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living, or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary ; or
(e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public ; or
(f) that any dangerous animal should be destroyed, confined or otherwise disposed of,
such Magistrate may take 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, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order -
(i) to remove such obstruction or nuisance ; or
(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed ; or
(iii) to prevent or stop th3 construction of such building or to alter the disposal of such substance ; or
(iv) to remove, repair or support such building, tent or structure, or to remove or support such trees ; or
(v) to fence such tank, well or excavation ; or
(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order;
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 hereinafter provided, why the order should not be made absolute.
(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court.
Explanation : A "public place" includes also property belonging to the State camping grounds and grounds left unoccupied for sanitary or recreative purposes."
It is apparent that though the heading of Chapter X-B mentions "public nuisance", but the heading of the Section 133 mentions only conditional order for removal of nuisance. The expression "nuisance" has not been defined in the Code of Criminal Procedure but Section 2(y) of the Code of Criminal Procedure states that the words and expressions used in the Code and not defined but defined in the Indian Penal Code will have the meanings respectively assigned to them in that Code. Chapter XIV of the Indian Penal Code deals with offences affecting the public health, safety, convenience, decency and morals and Section 268 in the said Chapter speaks of "public nuisance". Under Section 268 IPC a person is guilty of a public nuisance who does any act or is gulity of an illegal omission which cause any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. Thus under the Indian Penal Code an act or illegal omission of a person causing danger or annoyance to the people in general who dwell or occupy property in th3 vicinity would be a public nuisance. The aforesaid definition should be borne in mind while interpreting Section 163(1)(d) of the Code of Criminal Procedure.
8. Coming to the Rules of interpretation of statute, it is a cardinal principles of construction that a title or heading of a Chapter cannot restrict the plain meaning of the terms of an enactment. The intention and meaning of the statute is to be sought in the words used and if they are plain and unambiguous the words must be applied as the stand even if there is a suspicion that the result may not represent the real intention of the legislature. In Grey v. Pearson (26 LJ Ch 472), Lord Wenslydale) said : "In construing statutes and all written instruments the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistence but no further."
If the words of the statute are in themselves precise and unambiguous, then no more can be necessary then to expound those words in their natural and ordinary sense.. Where the words used are plain then the literal meaning must be given effect to and it is only when the words are capable of two constructions, one of which is likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achievement of the said policy, then the question of giving effect to the policy or object of the Act can legitimately arise. Courts have held that it is elementary that the primary duty of a Court is to give effect to the intention of the legislature as expressed in the words used by it and no outside consideration can be called in aid to find that intention. See AIR 1952 SC 369 Aswini Kumar v. Arvind Bose and AIR 1953 SC 53, Poppatlal Shah v. State of Madras).
If the words of the section of an Act admit of a reasonable doubt, the title or heading of the Chapter or group of sections may be looked to for interpreting the section. But although such heading may be looked for interpreting a section, the words of which admit of an, reasonable doubt, it cannot be taken to restrict the plain terms of the section. In Hammarsmith and City Railway Co. v. Brand (LR 4 HL 171), it was held that the heading of a Chapter may be referred to in order to determine the sense of any doubtful expression in a section ranged under it. But it cannot control unambiguous expressions. In Maxwe I Interpretation of Statutes it has been stated :
"The headings prefixed to sections or sets of sections in mordern statutes are regarded as preambles to those sections.
They cannot control the plain words of the statute but they may explain ambiguous words."
In Hammersmith and City Railway v. Brand (1869 LR 4 HL 171, 217) the heading of a group of sections with the expression "and with respect to the construction of the railways and the works connected therewith, be it enacted as follows" was used by two learned Judges, namely. Lord Chelmsford and Lord Colonsay to be part of the Act and it was held that the heading could be usefully referred to determine the sense of any doubtful expression in any particular section ranged under a particular heading but Lord Cairns differed from this opinion and doubted whether the headings to different portions of a statute are to be referred to determine the sense of any doubtful expression in a section ranged under any particular heading. He added :-- "In fact, one of these Acts of Parliament shows that these short headings were introduced merely to earmark a ser of clauses, and to afford a short and summary way by which they might be introduced by reference as enactments into other Acts of Parliament."
This doubt of Lord Cairns was later confirmed by Lord Uthwatt in Shelly v. L. C. C. (1948) 64 TLR 600, wherein the learned Judge said :
"First it is said that Section 83 (Housing Act 1936) does not appear in the fascicuous of sections in Part V headed General Powers and Duties of Local Authorities. 'That is true, but in my opinion of no weight. A heading to one group of sections cannot alter the meaning of a section outside the group."
Thus while the Court is entitled to look at the headings in an Act of Parliament to resolve any doubt they may have as to ambiguous words, the law is quite clear that the Court cannot use such headings to give a different effect to clear words of the section where there cannot be any doubt as to their ordinary meaning. Bearing in mind the aforesaid well settled principles of construction of Statute and under what circumstances the Court can take the aid of the heading to construe a statute we would now examine the provisions of Section 133(1)(d) of the Code of Criminal Procedure. A bare reading of the section is sufficient to hold that there is no doubt or ambiguity with regard to the language of the words used in the sense of the said clause. The clear grammatical meaning conveys a positive sense and there is no doubt for a Court so as to take in the extrinsic aid of looking at the heading of the Chapter for finding the true intention of the legislature. As has been stated earlier though the Chapter 'heading' uses the expression "public nuisance" but the heading of the section itself uses the expression "conditional order for removal of nuisance". Since there has been no ambiguity with the language used in Section 133(1)(d), the interpretation of which clause is involved in the present case and the said clause confers power on the Magistrate whenever the Magistrate is of the opinion that the building, tent or structure or any tree is in such a condition that it is likely to fall and thereby cause injury to person living or carrying on business in the neighbourhood or passing by, there is no justification for a Court to restrict the place and literal meaning of the clause by looking at the heading of the Chapter. In our considered opinion, therefore, an application by a single individual under Section 133(1)(d) would be maintainable if the building, tent or structure or any tree is in such a condition that the same is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by. We record the aforesaid conclusion on interpreting Section 133(1)(d) and bearing in mind the principles of construction as discussed by us earlier.
9. It would now be appropriate to examine a few decisions cited at the bar particularly the decision of this Court where the divergency of views have been taken. The earliest decision of this Court is that of Khetrabasi Patnaik's case referred to (supra). In that case the old coconut trees of the opposite party were found to be leaning towards the court-yard of the petitioner and the trees were in such a condition that danger was apprehended to the human life. A learned Single Jude of this Court construed Section 133(1)(d) and held that the trees in question might be a public nuisance within the meaning of Section 133, Cr. P. C. and the Magistrate had jurisdiction to take action under the said section. Thus the learned Judge was of the view that apprehension of danger to human life or the inmates of a house over which the trees were leaning would be a public nuisance within the meaning of Section 133 Cr. P. C. In Lal Mohan Patnaik's case referred to (supra) a learned Judge came to hold that proceeding under Section 133 Cr. P. C. are intended to protect the public as a whole against any inconvenience and they are not intended to settle private disputes between different members of the public and if a person has any private right which he wishes to enforce, he should seek redress in a Civil Court. In that particular case considering the notice issued by the Magistrate, the learned Judge came to the conclusion that what was sought to be protected thereby was not a public interest but the interest of a private individual and the public interest did not at all come into th3 picture and accordingly it was held that the proceeding was not maintainable. In our considered opinion, the enunciation of law made in that case to the effect that Section 133 Cr.P.C. is intended to protect public as a whole against any inconvenience is not the correct interpretation particularly when Clauses (c), (d) and (f) are taken into account and unfortunately in this case the earlier decision of this Court in Khetrabasi Patnaik's case has not been noticed. In Gayasundari Devi's case referred to supra, it was held that unless the nuisance is a public nuisance. Section 133 Cr.P.C. cannot be called in aid. Section 133(1)(d) of the Cr.P.C. was for consideration before the learned Judge but without any discussion of law, the learned Judge abruptly came to the conclusion that the provision of Section 133 Cr.P.C. cannon be called in aid unless the nuisance is a public nuisance and he further held that the proceeding under Section 133 Cr.P.C. is a summary one intended to have removal of a public mischief. In view of what we have already stated and in view of our interpretation of the provisions of Section 133(1)(d), we are of the considered opinion that this case has not been correctly decided. Even in this case also the earlier decision of Khetrabasi Patnaik's case has no: been noticed. So far as the decisions of other High Courts are concerned, while the Madhya Pradesh High in AIR 1958 MP 350 (Shaukat Hussain and another v. Sheodayal Saksaina) and the Allahabad High Court in AIR 1942 All. 443 (Ram Dayal Misra v. Mt. Jagadamba Debi and another) support the view taken by this Court in Gayasundari Devi's case. The Rajasthan High Court in AIR 1959 Raj. 44 (Achalchand v. Suraj Raj), the Kerala High Court in 1962 (2) Cri.L.J. 666 (State of Kerala v. Chacko) and the Goa Judicial Commissioner's Court in 1974 Cr.L.J. 522 (Somanath V. Poi Dhungat v. State.) support the view taken in Khetrabasi Patnaik's case. Having examined the provisions of the Act and having applied the principles of interpretation of Statute which we have discussed earlier in detail, we have no doubt in our mind that the provisions contained in Section 133(1)(c),(d) and (f) would apply to a case where the interest of a single or few individuals are concerned and the decisions of this Court in Gayasundari Devi's case as well as Lalmohan Patnaik's case are not the correct expositions of law.
10. Leaning of trees towards the roof of the neighbour or a dilapidated house abutting a neighbour's house if endangers human life of the inmates of the neighbour can bring an action before a Magistrate within the ambit of Section 133(1)(d) of the Cr.P.C. and the Magistrate would be fully within his jurisdiction to entertain the application and pass appropriate orders if he is satisfied that the facts and circumstances fulfils the requirements of Section 133(1)(d) Cr.P.C. so as to enable the Magistrate to pass conditional order for removal of the nuisance in question.
11. In the premises, as aforesaid, we find no merit in the petitioners' contention that in the facts and circumstances of the present case, the provisions of Section 133(1)(d) of the Code of Criminal Procedure cannot be availed of. We would accordingly dismiss this application and call upon the Magistrate to act in accordance with the judgment of the learned Sessions Judge, Cuttack in Criminal Revision 5 of 1989.
D.M. Patnaik, J.
12. I agree.