Part I: Section 133 of the CrPc vis-à-vis Barabanki Mosque Demolition case


Introduction

The administrative authority of a country ideally and presumably functions to meet the requirements of the citizens which in turn gives them an expectation of fulfilment for their needs. However, often it is observed that in some situations, there occurs a sense of deprivation. The most recent example of such deprivation of rights can be seen in the latest case of ‘U.P. Sunni Central Waqf Board Thru. Chairman v. State of U.P. Thru Secy. Minority Welfare & Waqf, Lko & Ors’., wherein a mosque in the Ram Sanehi Ghat city of Barabanki, Uttar Pradesh, was demolished on an order passed by the SDM under Section 133 of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC). The administration claimed that the mosque was an ‘illegal structure’ on the government land. Furthermore, the Uttar Pradesh Sunni Central Waqf Board had challenged the demolition of the 100-year-old Gareeb Nawaz Mosque in the Allahabad High Court. Justice Saurabh Lavania and Rajan Roy in one of its issued notice on the writ petition observed that;


“Having heard counsel for the parties who are represented, we are of the opinion that these petitions prima facie raise important questions… as to the existence of a mosque on public utility land… if it is so, as also, with regard to exercise of power by state authorities under Section 133 CrPC and other related provisions, its scope, especially the allegations of malafide exercise of power and the manner in which it has been done, as alleged by the petitioners”

The aforementioned case is merely a drop in the ocean; there have been many such instances of abuse of power, however, they have never come to light. It has been observed time and again that the people who are authorised to ensure the general public’s peaceful enjoyment of right, sometimes, exercise their power out of personal malice in situations when they have their personal axe to grind.


In these circumstances, the citizenry or a part of them generally gets affected by such unlawful enactments. Section 133 of the CrPC is one such example whereby many officers pass orders unlawfully and misuse their power for their own means. Therefore, this paper would examine the scope of Section 133 (Conditional Order for Removal of Nuisance) in light of the subject matter, and the jurisdictional extent to pass any order.


The Realm of Conditional Orders for Removal of Nuisance

Under Section 133 of the CrPC, a magistrate can pass an order only in case where s/he is satisfied that, [1] It is a public nuisance i.e. the number of persons injuriously affected is so considerable that they may reasonably be regarded as the public or a portion of it; [2] It is not a private dispute between different members of the public for which the proper forum is the civil court; [3] It is a case of great emergency of imminent danger to the public interest. If we look into the case of Barabanki Mosque Demolition, as per the facts available on the public forum, none of the aforementioned requisites have been satisfied. Additionally, it must be noted that all of the three requisites must be fulfilled to pass the order under Section 133.


Firstly, there was neither continuance of nuisance during the demolition of mosque nor a considerable amount of people were affected due to such loudspeaker used for ‘Azaan’. Petioners have been contenting that the order was passed by virtue of position and power (under Section 133 of CrPC) given to Sub-Divisional Magistrate of Ram Sanehighat, Barabanki who used to reside just across the Mosque and had certain grievances with regard to the 'azaan' being called from the loudspeaker and which in fact was redressed and the use of loudspeakers was discontinued.


Secondly, the mosque demolition case prima facie seems to be a private dispute as even if any nuisance was happening due to the loudspeaker, it was merely causing to the SDM himself as the officer’s residence was just before the mosque. Hence, it can be understood that the problem was not happening to public as a whole.


Thirdly, the case was not of great emergency that an immediate action was required to demolish the mosque (as of 17 May 2021), in defiance of order passed by Allahabad High Court to stay all demolitions across U.P. till May 31 in view of the ongoing COVID-19 pandemic. This is a sheer contempt of court as it is in violation of the directive issued by the High Court.


As of now this case is pending before the Allahabad court, however, following is the analysis of this case in light of the facts available and the laws related to nuisance and demolition of the building.


  • Scope of Jurisdiction under Section 133 (CrPC)

Through a plain reading of Section 133, it seems evident that the District Magistrate or a Sub- divisional Magistrate or any other Executive Magistrate can pass any Conditional order for removal of nuisance under Section 133 only in the six situations given specifically under Section 133(1). Moreover, this order can only be passed in the case wherein the issue is related to execution as there is no scope for either judiciary or legislature to encroach upon this power. Similarly, any DM, SDM or Executive Magistrate are not allowed to encroach on the matters which would come under the jurisdiction of the judiciary.


In the case of Barabanki Mosque, by giving the order to demolish the Mosque, the concerned SDM not only dwelt upon the question of the title of the land over which the mosque was built but the validity of the registration of the Mosque etc. as Waqf under the relevant Waqf Act which in fact he did not have valid jurisdiction to do in proceedings under Section 133 CrPC. From the very beginning, the petitioners had claimed their right over the land of mosque, therefore, it was in the knowledge of the officer that the matter is related to title and validity of mosque’s registration. This act itself shows the procedural fault in the matter and the abuse of power by concerned officers, as the matter was subject to be dealt by Judicial Courts (i.e. Civil Court), however, the SDM passed the order of mosque demolition unlawfully.


  • Scope of the Subject-Matters under Section 133 (CrPC)

As per the findings of Allahabad High Court under its order dated 22.06.2021 it is clear that the SDM, Ram Sanehighat, Barabanki had invoked Section 133(1)(a) of the CrPC. Under the section thereof, the major subject matter for a valid cause of action is the [1] Unlawful Obstruction or Nuisance; [2] At Public Property; [3] Lawfully used by Public. All of these requisites cannot be seen apparently in the case of Barabanki mosque demolition. It was neither proven to be in any unlawful possession nor was proven beyond reasonable doubt as a public place. Therefore, before such demolition order, the case should have been brought before relevant court, where it was having a lawful jurisdiction.


There was no need of any immediate and hasty action, the matter could have been dealt through following valid procedure by giving authority of mosque enough opportunity to establish their claim, but the authority failed to give concerned Management committee of the mosque a reasonable opportunity to hear. The mosque was around a century old and the petitioners were in possession of the same for a long while, therefore, it was unjustified to say that the land of mosque was in public usage when the order was passed.


The SDM’s plea of nuisance to justify this order was contempt of High Court’s directive to stay all the case of demolitions. Further, it must be noted that there is no scope to take action under Section 133 in violation of orders passed by Higher Authorities. The procedure established by law demands that all the lower courts or administrative bodies must be bound by directives, laws or judgement decrees given by the higher courts or authorities as Stare decisis, however, in the present case at hand the SDM blatantly disobeyed with the order of Allahabad High Court.


Part II of the article shall be published soon.


Aruna Bopche ia a second-year student at National University of Study and Research in Law, Ranchi.








Image Source: The Quint


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