B—Public nuisances
133. Conditional order for removal of nuisance -
(1)
Whenever a District Magistrate or a 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 information 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 is
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 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—
(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 the 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
134. Service or notification of order -
(1)
The order shall, if practicable, be served on the person against whom it is
made, in the
manner
herein provided for service of a summons
(2)
If such order cannot be so served, it shall be notified by proclamation,
published in such
manner
as the State Government may, by rules, direct, and a copy thereof shall be
stuck up at
such
place or places as may be fittest for conveying the information to such person
135. Person to whom order is addressed to obey or show cause -
The
person against whom such order is made shall—
(a)
perform, within the time and in the manner specified in the order, the act
directed
thereby;
or
(b)
appear in accordance with such order and show cause against the same
136. Consequences of his failing to do so -
If
such person does not perform such act or appear and show cause, he shall be
liable to the
penalty
prescribed in that behalf in section 188 of the Indian Penal Code (45 of 1860,)
and the
order
shall be made absolute
137. Procedure where existence of public right is denied -
(1)
Where an order is made under section 113 for the purpose of preventing
obstruction, nuisance
or
danger to the public in the use of any way river, channel or place, the
Magistrate shall, on the
appearance
before him of the person against whom the order was made, question him as to
whether
he denies the existence of any public right in respect of the way, river,
channel or place,
and
if he does so, the Magistrate shall, before proceeding under section 138,
inquire into the
matter
(2)
If in such inquiry the Magistrate finds that there is any reliable evidence in
support of such
denial,
he shall stay the proceedings until the matter of the existence of such right
has been
decided
by a competent Court; and if he finds that there is no such evidence, he shall
proceed as
laid
down in section 138
(3)
A person who has, on being questioned by the Magistrate under sub-section (1),
failed to
deny
the existence of a public right of the nature therein referred to, or who,
having made such
denial,
has failed to adduce reliable evidence in support thereof, shall not in the
subsequent
proceedings
be permitted to make any such denial
138. Procedure where he appears to show cause
(1)
If the person against whom an order under section 133 is made appears and shows
cause
against
the order, the Magistrate shall take evidence in the matter as in a
summons-case
(2)
If the Magistrate is satisfied that the order, either as originally made or
subject to such
modification
as he considers necessary, is reasonable and proper, the order shall be made
absolute
without modification or, as the case may be, with such modification
(3)
If the Magistrate is not so satisfied, no further proceedings shall be taken in
the case
139. Power of Magistrate to direct local investigation and
examination of an expert
The
Magistrate may, for the purposes of an inquiry under section 137 or section 138—
(a)
direct a local investigation to be made by such person as he thinks fit; or
(b)
summon and examine an expert
140. Power of Magistrate to furnish written instructions, etc
(1)
Where the Magistrate directs a local investigation by any person under section
139, the
Magistrate
may—
(a)
furnish such person with such written instruction as may seem necessary for his
guidance;
(b)
declare by whom the whole or any part of the necessary expenses of the local
investigation
shall be paid
(2)
The report of such person may be read as evidence in the case
(3)
Where the Magistrate summons and examines an expert under section 139, the
Magistrate
may
direct by whom the costs of such summoning and examination shall be paid
141. Procedure on order being made absolute and consequences of
disobedience
(1)
When an order has been made absolute under section 136 or section 138, the
Magistrate shall
give
notice of the same to the person against whom the order was made, and shall
further require
him
to perform the act directed by the order within a time to be fixed in the
notice, and inform
him
that, in case of disobedience, he will be liable to the penalty provided by
section 188 of the
Indian
Penal Code (45 of 1860)
(2)
If such act is not performed within the time fixed, the Magistrate may cause it
to be
performed,
and may recover the costs of performing it, either by the sale of any building,
goods
or
other property removed by his order, or by the distress and sale of any other
movable property
of
such person within or without such Magistrate's local jurisdiction and if such
other property is
without
such jurisdiction, the order shall authorise its attachment and sale when
endorsed by the
Magistrate
within whose local jurisdiction the property to be attached is found
(3)
No suit shall lie in respect of anything done in good faith under this section
142. Injunction pending inquiry
(1)
If a Magistrate making an order under section 133 considers that immediate
measures should
be
taken to prevent imminent danger or injury of a serious kind to the public, he
may issue such
an
injunction to the person against whom the order was made, as is required to
obviate or prevent
such
danger or injury pending the determination of the matter
(2)
In default of such person forthwith obeying such injunction, the Magistrate may
himself use,
or
cause to be used, such means as he thinks fit to obviate such danger or to
prevent such injury
(3)
No suit shall lie in respect of anything done in good faith by a Magistrate
under this section
143. Magistrate may prohibit repetition or continuance of public
nuisance
A
District Magistrate or Sub-divisional Magistrate, or any other Executive
Magistrate
empowered
by the State Government or the District Magistrate in this behalf, may order
any
person
not to repeat or continue a public nuisance, as defined in the Indian Penal
Code (45 of
1860),
or any special or local law
