Criminal Application No.483 of 2017

21st March, 2018.

Petitioner Counsel: Shri H.R. GADHIA
Respondent Counsel: Shri V.R. DESHPANDE

Cases Cited:
Sudhakar Vithalrao Welaniwar Vs. Liberty Services and others, 1983 Mh.L.J. 676 [Para 4]
Kachrulal Bhagirath Agrawal and others Vs. State of Maharashtra, 2004(4) Mh.L.J. 963 [Para 7]
Budhwa & Others Vs. State of U.P. & Others, 2006 CRI. L.J. 1037 [Para 10]
Suresh Prakash Vs. Krishna Swarup and others, 1976 CRI. L.J. 46 [Para 10]

JUDGMENT

JUDGMENT :- Heard.

2. Rule. Rule made returnable forthwith. Heard finally by consent.

3. The order dated 6th June, 2017, passed under Section 133 of the Code of Criminal Procedure by the Sub-Divisional Magistrate, Akola is under challenge in this application. This order directs the applicant to demolish the disputed structure occupied by the applicant as a permissive user of the landlord i.e. respondent No.1, within ten days from the date of order, failing which, the structure would be brought down forcibly.

4. On going through the impugned order, I find that it does not comply with the mandatory requirement of Section 133 of the Criminal Procedure Code as rightly submitted by the learned counsel for the applicant. Section 133(1) Cr.P.C requires that first a conditional order must be passed and then the final order if the need arises has to be passed by the Executive Magistrate invested with the power under this Section. This is also the view taken by the learned Single Judge of this Court way back in the year 1981 in the case of Sudhakar Vithalrao Welaniwar vs. Liberty Services and others, reported in 1983 Mh.L.J. 676. In the present case no such conditional order has been passed and on this ground alone, the impugned order cannot be sustained in the eye of law.

5. There is also a fundamental error appearing in the impugned order. The impugned order relies upon the report of the Commissioner, Municipal Corporation, Akola dated 23.5.2017. This report, has been interpreted by the learned Sub-Divisional Magistrate to suit his convenience. The report clearly says that the structure, which is a tin shed and which is in dispute in the present case, need not be demolished because it is only a tin structure. The report further says that if the other structure adjoining the tin shed are to be demolished, there would be danger being caused to the applicant's structure as well as the applicant's person. This report nowhere says that the dilapidated portion of the structure adjoining the tin shed under occupation of the applicant is in such a condition that if it is not brought down immediately, there will be any imminent danger to the members of public. This report also says that the dispute between the applicant and the non-applicant No.1 is of civil nature and, therefore, the Corporation is not concerned with it. This report, has been misinterpreted and misunderstood by the learned Sub-Divisional Magistrate. The learned Sub-Divisional Magistrate has read into this report something which is not there. This is the perversity committed by the learned Sub-Divisional Magistrate while passing the impugned order.

6. The learned Sub-Divisional Magistrate has also relied upon the reports of two private consultants, namely, Akar Consultancy Services and one expert K.S. Morgavkar. The copies of reports of these two experts are forming part of the record. They do not bear signatures of the applicant. No evidence has been led before the learned Magistrate to show that at the time when these experts visited the disputed structure, the applicant was present or the applicant deliberately chose to remain absent or the applicant refused to sign the reports. It is the contention of the learned counsel for the applicant that there was no spot inspection taken by these experts and even if it was taken, the applicant was not aware of the date of the inspection. This contention should have been considered by the learned Sub-Divisional Magistrate, but it appears that he has not. The learned Sub-Divisional Magistrate has also not considered the material fact that the signatures of the applicants are not found on the reports of two experts on which the learned Sub-Divisional Magistrate has placed his reliance. In these circumstances, the learned Sub-Divisional Magistrate could not have placed any reliance upon these reports.

7. Then, there is also involved in this case the question of urgency. Power under Section 133 exists for the purpose of preventing imminent danger to the life and property of public and not for settling a civil dispute. This is the law laid down by the Hon'ble Apex Court in the case of Kachrulal Bhagirath Agrawal and others vs. State of Maharashtra, reported in 2004(4) Mh.L.J. 963. The facts of the present case indicate that the question of imminent danger to the life and property of public has not been considered at all while passing the impugned order.

8. It is an admitted fact that the landlord, the non-applicant No.1, had issued a notice to the applicant on 2nd March, 2017 calling upon the applicant to vacate the disputed premises on the ground that it was in dilapidated condition. This notice was received by the applicant on the same day of 2nd March, 2017. The applicant did not comply with the notice. With this, the next logical step that should have been taken by non-applicant No.1, the landlord, was of filing a civil suit or proceeding for eviction under the provisions of the relevant Act immediately after expiry of prescribed period from the receipt of the notice. The landlord, however, did not do so and opted to wait for some more time. Even then, it is further seen, the landlord did not initiate any civil proceeding rather he directly filed an application under Section 133 of Cr.P.C terming the dispute as a case of public nuisance. An application under Section 133 of Cr.P.C was filed by the landlord on 25th April, 2017 that is after a period of more than one and half month. This would only show that there was neither any urgency nor any imminent danger to the life and property of public, at least in the opinion of the landlord or otherwise, the landlord would have certainly approached the authority without wasting any further time after 2nd March, 2017.

9. Even the report of the Municipal Commissioner shows that the structure under occupation of the applicant being made up of tin only, poses no danger whatsoever to the public. If this is the case, I wonder, as to how an order directing demolition of the structure, which causes no danger to the public, could have been passed by the learned Sub-Divisional Magistrate. This aspect also needs to be considered by the learned Executive Magistrate. He may even record evidence, as provided under the law so as to completely satisfy himself about the exercise of the discretion one way or the other in the matter.

10. Learned counsel for the non-applicant submits that notwithstanding pendency of the civil proceedings, an application under Section 133 filed for removal of nuisance is maintainable. He relies upon the cases of Budhwa & Others vs. State of U.P. & Others, reported in 2006 CRI. L.J. 1037 and Suresh Prakash vs. Krishna Swarup and others, reported in 1976 CRI. L.J. 462. There can be no dispute about the proposition of law laid down in these cases. But, even these cases show that in order to exercise jurisdiction under Section 133 of Cr.P.C., imminent danger to life and/or property of public must be present. I have already held that, in the present case, so far this essential condition of Section 133 of Cr.P.C has not been proved by the non-applicant No.1. Therefore, at this stage no assistance from these two cases could be sought by the non-applicant No.1.

11. In view of above, I find that this application deserves to be allowed. The application is allowed.

12. The impugned order is quashed and set aside.

13. The matter is remanded back to the learned Executive Magistrate for it's consideration afresh in accordance with law.

14. Rule is made absolute accordingly.

Application allowed.