# Smt. Dr. Mamtesh Gupt v. The State Of U.P. & Anr - **Citation:** (2016) 4 ILRA 414 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2015-08-21 - **Bench:** Manoj Kumar Gupta - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-dr-mamtesh-gupt-v-the-state-of-u-p-anr-43448 - **Pages:** 5 ## Headnote Govt. Advocate, Shri Fakhr Uz Zaman. Held - Paras 1-2: Background. Petitioner (a doctor) installed a generator on a public road, causing obstruction and pollution. A neighbor (Respondent No. 2) initiated proceedings. A police report confirmed encroachment via a permanent ("pucca") foundation. Paras 3-5: Evidence & Orders. The Magistrate found that Nagar Nigam never gave permission, and authorities confirmed that installing generators on public roads is illegal. The Sub-Divisional Magistrate (SDM) ordered removal (26.2.2015), and the Sessions Judge upheld this in revision (10.8.2015). Paras 6-7: Procedural Challenge. The court rejected the petitioner's claim that a Nagar Nigam report was improperly used, noting it was part of the record and legally obtained. Paras 8-9: "Negative Equality" Rejected. The petitioner argued others also had generators on the road. The court held that one person's illegal act does not justify another's; "Negative equality" is not recognized in law. Paras 10-14: Permission Legality. Even if the Nagar Nigam had issued a receipt/permission, the court ruled it would be wholly illegal, as the Nagar Nigam is a custodian of public land and cannot authorize encroachments. Paras 15-16: Public vs. Private Nuisance. The court clarified that while a single neighbor complained, encroachment on a public road is a public wrong and a public nuisance under Section 133 Cr.P.C. Paras 17-19: Conclusion. The court noted that if the generator was truly "silent and emission-free," the petitioner should have kept it inside her house. Finding no merit, the court dismissed the petition. Petition Dismissed. Case laws Cited:- 4 All. Smt. Dr. Mamtesh Gupt Vs The State Of U.P. & Anr. 415 ## Text 414 INDIAN LAW REPORTS ALLAHABAD SERIES ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 21.08.2015 BEFORE THE HON'BLE MANOJ KUMAR GUPTA, J. Matters Under Article 227 No.- 4439 Of 2015 Smt. Dr. Mamtesh Gupt ...Petitioner Versus The State Of U.P. & Anr. ...Respondents Counsel for the Petitioner: Shri Rajeev Misra, Shri Rajesh Kumar Counsel for the Respondents: Govt. Advocate, Shri Fakhr Uz Zaman. Held - Paras 1-2: Background. Petitioner (a doctor) installed a generator on a public road, causing obstruction and pollution. A neighbor (Respondent No. 2) initiated proceedings. A police report confirmed encroachment via a permanent ("pucca") foundation. Paras 3-5: Evidence & Orders. The Magistrate found that Nagar Nigam never gave permission, and authorities confirmed that installing generators on public roads is illegal. The Sub-Divisional Magistrate (SDM) ordered removal (26.2.2015), and the Sessions Judge upheld this in revision (10.8.2015). Paras 6-7: Procedural Challenge. The court rejected the petitioner's claim that a Nagar Nigam report was improperly used, noting it was part of the record and legally obtained. Paras 8-9: "Negative Equality" Rejected. The petitioner argued others also had generators on the road. The court held that one person's illegal act does not justify another's; "Negative equality" is not recognized in law. Paras 10-14: Permission Legality. Even if the Nagar Nigam had issued a receipt/permission, the court ruled it would be wholly illegal, as the Nagar Nigam is a custodian of public land and cannot authorize encroachments. Paras 15-16: Public vs. Private Nuisance. The court clarified that while a single neighbor complained, encroachment on a public road is a public wrong and a public nuisance under Section 133 Cr.P.C. Paras 17-19: Conclusion. The court noted that if the generator was truly "silent and emission-free," the petitioner should have kept it inside her house. Finding no merit, the court dismissed the petition. Petition Dismissed. Case laws Cited:- 4 All. Smt. Dr. Mamtesh Gupt Vs The State Of U.P. & Anr. 415 1. Rajasthan State Industrial Development and Investment Corporation v. Subhash Sindhi Cooperative Housing Society, Jaipur, (2013) 5 SCC 427. 2. Commissioner of Police, New Delhi and another vs. Mohar Singh and connected matters, (2013) 7 SCC 685. 3. Basawaraj and another vs. Special Land Acquisition Officer and connected matter, (2013) 14 SCC 358. 4. Hari Ram vs. Jyoti Prasad, (2011) 2 SCC 682. (Delivered By Hon'ble Manoj Kumar Gupta, J.) 1. The petitioner is a Cardiologist and her husband a general Surgeon. Both of them claim to be well versed with the health hazards. However, the paradox is that the petitioner is before this Court, challenging orders of the authorities, whereunder she has been found causing sound and air pollution, injurious to public health. She has installed a generator over Patri land which is part of public road, thus causing unlawful obstruction over public place. 2. Proceedings were initiated by the second respondent, who is a neighbour of the petitioner for directing removal of the generator, as it is causing public nuisance and unlawful obstruction over public road. On such application being filed, the learned Magistrate called for a report from the police. In pursuance thereof, the Inspector in-charge of police Station Inchauli, submitted a report on 23.8.2014 stating that the generator has been installed by the petitioner by encroaching a part of public road. A pucca foundation has been made for such purpose. The learned Magistrate on being satisfied that unlawful obstruction has been caused on public road, issued a conditional order dated 3.9.2014 requiring the petitioner to remove the obstruction and nuisance, caused thereby. The petitioner in response to the same, submitted a denial statement in which it is stated that the generator has been installed after taking permission from Nagar Nigam. The petitioner is paying rent to Nagar Nigam. It is further stated that the generator in question is a silent generator and is free from air and sound pollution. It was thus prayed that the proceedings be dropped. 3. It seems that during the course of the proceedings, the learned Magistrate called for a report from Nagar Nigam, Meerut. The Nagar Nigam submitted a report dated 28.11.2014 mentioning that it had not granted any permission to the petitioner to install generator, nor has realized any rent from her. Before the learned Sub-Divisional Magistrate, a communication dated 29.8.2014 was brought on record by the second respondent, whereby the Meerut Development Authority, Meerut, requested the Chief Engineer, Nagar Nigam, Meerut to undertake effective measures to ensure removal of generator set installed on public road, in the neighbourhood of the second respondent. There is also on record the information furnished by Deputy Director, Electrical Safety, Lucknow, in response to questionnaire submitted under the Right to information Act. It has been informed that installation of generator set on public road is prohibited. Similar response has been given by the Chief Town Planner, Meerut Development Authority, Meerut stating that the installation of generator set for domestic use, on roads of the colonies of the Authority, is illegal. 416 INDIAN LAW REPORTS ALLAHABAD SERIES 4. The Sub-Divisional Magistrate, Meerut, taking into consideration the aforesaid evidence on record, held that the installation of a big generator by the petitioner in front of her house on a public road, is causing noise and air pollution and is thus, a nuisance to the public. It has been further held that the generator had been installed by encroaching on a public road, resulting in unlawful obstruction. Accordingly, the petitioner was directed to remove the generator within 15 days, by order dated 26.2.2015. 5. Aggrieved by the order of the learned Magistrate, whereby the preliminary order was made absolute, the petitioner preferred a revision, which was registered as Criminal Revision no. 57 of 2015. It has been dismissed by Sessions Judge, Meerut by impugned order dated 10.8.2015. The revisional court has taken notice of an order passed by the Division Bench of this Court dated 12.12.2014, wherein the petitioner of that case was granted liberty to make representation before the concerned authority regarding installation of generators in public place. The authorities were directed to cause a due inquiry to be made and in case the complaint is found to be genuine, directions were issued to take necessary action in accordance with law. It was noticed that in the present case, upon a complaint filed by the second respondent that the generator installed by the petitioner is an obstruction on the public road and is causing nuisance, a report was called for from the police. In its report, the police clearly mentioned that the generator had been installed on a foundation built over vacant land abutting public road, just outside the house of the petitioner. It is causing inconvenience to the second respondent. The revisional court after taking into consideration the entire aspect of the matter, held that the installation of the generator by making encroachment over public land, is in itself unlawful, apart from the fact that the generator causes sound and air pollution, resulting in inconvenience to the public passing through the road. Accordingly, the revision has been dismissed. 6. The first submission made by learned counsel for the petitioner is that although the SubDivisional Magistrate, in the impugned order has placed reliance on a report submitted by Nagar Nigam, Meerut, dated 28.11.2014, but there is no reference of such a report in the order sheet. It is thus sought to be suggested that reliance on such a report should not have been made. 7. The argument does not have any force. It is not the case of the petitioner that the report in question is not part of the record of the proceedings before the Sub-Divisional Magistrate. A perusal of the order-sheet dated 20.11.2014 reveals that the Sub-Divisional Magistrate had called for a report from the Nagar Nigam. The report dated 28.11.2014 had apparently been submitted on the basis of the direction of the Sub-Divisional Magistrate. In such view of the matter, mere fact that the date of filing of the report is not mentioned in the order sheet, is of no consequence and does not affect the validity of the impugned order. 8. The second submission made by learned counsel for the petitioner is that an earlier police report dated 12.4.2014, mentions that there are several other persons in the colony, who have installed generators on public road and since no action has been taken against them and therefore, the impugned order passed against the petitioner is illegal and malafide. 4 All. Smt. Dr. Mamtesh Gupt Vs The State Of U.P. & Anr. 417 9. Even assuming that there are other persons in the locality, who have installed the generator sets on public road, the same will not validate the act on the part of the petitioner in installing generator set outside her house on a public road. Negative equality as not envisaged in law. (vide : Rajasthan State Industrial Development and Investment Corporation v. Subhash Sindhi Cooperative Housing Society, Jaipur; Commissioner of Police, New Delhi and another vs. Mohar Singh and connected matters ; Basawaraj and another vs. Special Land Acquisition Officer and connected matter. This specious argument also can not be accepted. 10. The third submission made by learned counsel for the petitioner is that the Nagar Nigam has issued a valid permission in favour of the petitioner for installation of the generator on the patri land and had realised rent from her. She was therefore authorised to install the generator set outside her home, on the vacant public land. 11. The receipt in question has been brought on record as Annexure 8 to the petition. There is no assertion in the petition that the receipt was filed before the Sub-Divisional Magistrate or even in revision. The receipt states that permission is granted for the period 1.4.2014 to 31.3.2015. The aforesaid period has already come to an end. It is no where stated in petition that the alleged permission was extended beyond 31.3.2015. 12. The case of the second respondent is that the generator set is of 35 KVA and that the alleged permission is not for installation of Generator set on the public road but could only be for installation of generator within the premises of the owner or occupier. Although, these questions had not been gone into by the authorities, but even if the receipt is taken to be correct on its face value, it does no where mention that the permission was for installation of Generator Set on public road. 13. The revisional court has held in the impugned order that the installation of the generator set by making encroachment over public road is in itself unlawful and forbidden under Section 133 Cr.P.C. Even assuming that certain receipt was issued by Nagar Nigam in favour of the petitioner authorising her to install a generator set on public road, in the opinion of the court, such act on part of Nagar Nigam itself was wholly illegal. The Nagar Nigam, which is only a custodian of public road and patri land cannot permit encroachment over the same, by permitting persons to install generator sets over it. 14. In such view of the matter, the aforesaid submission of learned counsel for the petitioner also does not have any force. 15. The last submission made by learned counsel for the petitioner is that in the police report, it is mentioned that the installation of the generator is causing inconvenience to the second respondent. In the submission of learned counsel for the petitioner, the installation of the generator set was thus, only a source of nuisance to the second respondent. It can only be a case of private nuisance and not a public nuisance. 418 INDIAN LAW REPORTS ALLAHABAD SERIES 16. It is not in dispute that the generator had been installed outside the house of the petitioner, over vacant patri, abutting public road. Any obstruction made by a person on a public road or patri land though in the instant case, objected to only by the second respondent, does not mean that it is only a source of nuisance to the second respondent and not the public at large. In the opinion of the court, it is another matter that the law was set into motion by an individual, but in view of the nature of obstruction and the resultant nuisance, it is a public wrong. In Hari Ram vs. Jyoti Prasad4 the Supreme Court held that "an encroachment when made to a public property like encroachment to public road, would be a graver wrong, as such prejudicially affects the number of people and therefore a public wrong." 17. It may further be noted that if the generator was of such high quality, as alleged by the petitioner, that it is silent and free from emission, it is strange that the petitioner chose to install it at a public place and not inside her own premises. 18. In the totality of the facts and circumstances of the case, it is not a fit case for interference in exercise of power under Article 227 of the Constitution. 19. The petition lacks merit and is dismissed. ---------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 04.04.2016 BEFORE THE HON'BLE MRS. RANJANA PANDYA, J. Criminal Appeal No.- 5836 Of 2015 Tahir Ali @ Ali Bhai ...Appellant Versus State of U.P. ...Respondent Counsel for the Appellant: Vikas Singh Counsel for the Respondent: G.A. Challenge in is appeal is to the judgment and order dated 20.11.2015, passed by Additional Sessions Judge / Fast Track Court, Fatehpur, Whereby the accused Kalloo @ Badruddin Shah and Smt. Julekha were acquitted for the charges framed against them, whereas accused appellant Tahir Ali @ Ali Bhai was found guilty and sentenced to five years rigorous imprisonment along with fine of Rs. 1000/- under Section 363 I.P.C.; five years rigorous imprisonment along with fine of Rs. 1000/- under Section 366 I.P.C. and seven years rigorous imprisonment along with fine of Rs. 2000/- under Section 376 I.P.C. with default stipulation. The appeal is partly allowed.