Jammu and Kashmir High Court: A Single Judge Bench of Sanjay Kumar Gupta J., allowed the petition filed under Section 435 read with Section 439 of the CrPC, and set aside the order passed by the Judicial Magistrate. It also ruled that an order could be passed provided that the petitioners and other affected parties were given a reasonable opportunity of being heard.

The petitioners were owners-in-possession of land of certain banjarkadim land in ChakJallo, Jammu, for which the relevant mutations of the sale deed were also made. Thereafter, the petitioners started constructing a fence around the land by building a boundary wall. However, the construction work was interfered with by the respondents, including the Tehsildar, Jammu, the army stationed at Kalu Chak etc. Aggrieved by the action of the respondents, the petitioners filed a suit in the court of the Chief Judicial Magistrate of Jammu (CJM), who, after conducting a verification of the land, ordered the respondents to stop the illegal and unjustified interference into the petitioner’s property. A restraining order was passed to the same effect.

Despite the order, the respondents forcibly dismantled the boundary wall which the petitioners were constructing. The petitioners filed an application to the Divisional Commissioner of Jammu, who informed them that with respect to their land, two orders, one under Section 133 and the other under Section 144 of the CrPC, had been passed by the District Magistrate, who was one of the respondents in the civil suit filed before the CJM.

Upon perusing the order, the Court arrived at the conclusion that the order had been passed after receiving communication from the army about sensitive installations around the land, as well as about possible obstruction to the drainage of the water around the land, which could lead to flooding of the area. The Court held that the order passed was mala fide, as no opportunity was given to the petitioners to file an objection and the procedural requirements of chapter X of the CrPC. have been bypassed by the District Magistrate. The Court cited the case of Shiraz Cinema v. Srinagar Municipal Corporation, Crimes (HC) 2 (1988) 250 to state that the object of Section 133 was not to settle private disputes between parties but to ensure that the public is protected from the inconvenience of a public nuisance. It also rebuked the respondent for failing to file its written submissions before the CJM, instead choosing to pass the aforementioned order. The Court thus allowed the petition and stated that an order can be passed by the respondents provided that the petitioners and other aggrieved parties are given an opportunity to state their objections. [Girdhari Lal v. State of Jammu and Kashmir,2018 SCC OnLine J&K 793, order dated 03-11-2018]

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