CrPC Section 133 - Conditional Order For Removal Of Nuisance

Section 133 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) is an important legal provision that aims at upholding the public order and removing all kinds of nuisances from the public. This Sec­tion empowers District Magis­trates, Sub-Divisional Magistrates, or other Executive Magis­trates especially empowered by the State Gov­ernment, to take swift preventive action against any unlawful obstruction, nuisance, or any other act, that pose any danger to public health, safety and comfort. Section 133 focuses on removing or regulating such nuisances with the aim of preventing damage or inconvenience to the public.

Legal Provision Of CrPC Section 133

1. Whenever a District Magistrate or 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 -
   1. 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
   2. 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
   3. that the construction of any building, or, the disposal of any substance, as is likely to occasion conflagration to explosion, should be prevented or stopped; or
   4. 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
   5. 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
   6. 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 or 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 -
      1. to remove such obstruction or nuisance; or
      2. 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
      3. to prevent or stop the construction of such building, or to alter the disposal of such substance; or
      4. to remove, repair or support such building, tent or structure, or to remove or support such trees; or
      5. to fence such tank, well or excavation; or
      6. 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.”

Simplified Explanation Of CrPC Section 133

Section 133 of the Code provides the following:

• Sub-section (1) prescribes under what circumstances an order can be issued and who can issue that order. It states that when a District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate empowered by the State Government has been so notified of a report made by a police officer or otherwise, and having examined any evidence in support, he himself is satisfied that any of the following exist:
  • Unlawful Obstruction or Nuisance in Public Places: It includes obstructions or nuisances of any kind in any public place, way, river, or channel which are used by the public.
  • Health Hazards from Trade or Occupation: It is concerned with cases wherein a trade, occupation or the storage of goods is detrimental to the health or comfort of the community. The Magistrates may grant permission to prohibit, regulate, remove, or store under control such goods.
  • Fire and Explosion Hazards: It involves construction or demolition of structures which may lead to a fire explosion. The Magistrate can be able to stop or prevent such work.
  • Dangerous Structures: This involves buildings, tents, structures, or trees likely to fall and thereby endanger persons living, working, or passing near them. The Magistrate can require them to be demolished, repaired, or supported.
  • Unfenced Excavations: It is the dangerous, unfenced tanks, wells, or digs situated near any public way or place. The Magistrate can make an order for fencing such sites to protect the public.
  • Dangerous Animals: It relates to the issue of dangerous animals. The Magistrate can issue orders for destruction, confinement, or proper removal of such animals.
• Subsection (1) also specifies what the conditional order should contain. The order must specify actions that the responsible person should undertake within a specified period. Such actions include:
  • Removal of the obstruction or nuisance.
  • Stopping or modifying a trade or an occupation, or removal or regulation of the storage of goods to remove the health hazard.
  • Halting or modifying the construction of a building or alteration of the disposal of injurious substances.
  • Removing, repairing, or supporting a dangerous building, tent, structure, or tree.
  • Constructing a fence round a tank, well or excavation.
  • Destroying, confining, or disposing of a dangerous animal under the order.
• Sub-section (1) also provides an alternative to complying with the order. Instead of obeying the order, the person can appear before a Magistrate to contest it.
• Sub-section (2) makes it clear that any order issued by a Magistrate under Section 133 cannot be challenged before a Civil Court.
• Lastly, the Section defines “public place”. The term “public place” includes government property, camping grounds, and areas left unoccupied for sanitation or recreation.

Judicial Nature Of Proceedings Under CrPC Section 133 

Section 133 proceedings are judicial in nature. These proceedings are only for abating nuisances forthwith and not for entering long-drawn litigation. Section 133 proceedings are preventive rather than punitive in nature. They aim at removing the source of harm towards the public rather than punishing individuals. It is different from other sections of criminal law that are essentially related to retribution or penal action.

Exclusion of jurisdiction of Civil Court

Section 133 specifically excludes the jurisdiction of Civil Courts by stating that no order made by a Magistrate under this Section can be challenged before a Civil Court. The exclusion of jurisdiction of the Civil Court forms the special preventive and remedial role of the Magistrate under the Code. The decision of the Magistrate would be final with regard to removal of the nuisance or obstruction.

Landmark Judgements On CrPC Section 133

Ram Autar vs. State Of U. P. (1962)

This case is directly on the question of the application and interpretation of Section 133 of the Code. In this case, the appellants, who were vegetable auctioneers, had a Section 133 order against them, which led them to file an appeal before the Supreme Court. The analysis of the Court was based on two clauses of Section 133(1): the first clause dealing with unlawful obstruction of public places, and the second clause, dealing with trades or occupations injurious to public health or comfort. The Court found that neither clause justified the order against the appellants. The Court held that Section 133 is not intended to prohibit trades which are necessary for the well-being of the community, even if they cause some amount of nuisance.

Municipal Council, Ratlam vs. Shri Vardhichand & Ors (1980)

The Court held Section 133 as an instrument to deal with all public nuisances, and Magistrates are under a statutory obligation to use it. It also held that Section 133 is not directory but mandatory. Thus, where a magistrate has evidence of a public nuisance, “he shall act” ordering its removal within a fixed time. These obligations are further strengthened by the penalties prescribed in Section 188 of IPC for non-compliance.

Some of the key points from the judgement are as follows:

• Public Nuisances Trigger Section 133: The Court held that wherever there is a public nuisance, the presence of Section 133 must be felt and any contrary opinion is contrary to the law. This implies that the existence of a public nuisance is sufficient to trigger the duty of the Magistrate to act under Section 133.
• Financial incapacity is No Defence: The court held that the municipality's lack of revenue was not a defence to excuse it from its statutory duty to preserve public health and sanitation. Basic human rights and public obligations must prevail over budgetary issues.
• Magistrates can issue Specific, Time-Specific Orders: The Court upheld the magistrate's authority to give specific directives and set time limits for compliance.
• Social Justice Underpins Section 133: The Court highlighted the linkages between Section 133 and the commitment to social justice in the Indian Constitution. The Court held that citizens must be able to utilise legal tools such as Section 133 to secure their basic rights, such as the right to a healthy environment.

The Manager vs. The Sub-Divisional Magistrate (2008)

In the case, the Court held the following regarding Section 133 of the Code:  

• Section 133 CrPC is for Public Nuisance, Not Private Disputes: Section 133 of the Code falls within the area of public nuisance and does not relate to any private dispute.
• Imminent Danger or Emergency: The Court highlighted that Section 133 is meant for situations of “imminent danger” or an “emergency” regarding public health or safety.
• Permissive Use Does Not Grant Public Right: The Court held that any permissive use does not automatically translate to a legally established public right of way.
• Orders under Section 133 must be based on reasonable material factors not on something arbitrary or excessive.
• Proceedings under Section 133 cannot be used in place of civil actions.
• While making a decision based on the facts and circumstances of the case, the authority exercising the power under Section 133 should be based on objective evaluation and sound judgement. 

Significance Of CrPC Section 133

Section 133 is of utmost importance in keeping public safety and welfare in control as it deals with all sorts of nuisances that might be harmful to society. The preventive nature of these proceedings ensures that those hazards are checked before turning into a severe one. Generally, Section 133 is often invoked in encroachment cases over a public road, control of pollution, dangerous building condition, and any type of dangerous animal. It is an effective legal instrument that can be invoked in cases where immediate attention has to be given in order to protect the interest of the public.

Conclusion

Section 133 of the Code is an effective weapon in the hands of the Executive Magistrate to remove public nuisances and prevent harm to the community. By empowering the Magistrate to issue conditional orders for removal of nuisances, Section 133 ensures safe, healthy, and wholesome use of public places. The focus is on preventive action rather than punishment, this brings out the remedial character of this Section. This enables the Executive Magistrates to respond quickly and effectively to new threats that arise. This immediate action keeps the public safety and comfort in place.