Kafeel Ahmad v. Nagar Palika — 1981 DIGILAW 658 (ALL)

Judgment P.N. Goel, J. 1. BY means of this application under section 482 Cr. P.C. Kafeel Ahmad applicant invokes the inherent powers of this Court to quash the order dated 30-6-1980 passed by the Sessions Judge Etawah as well as the order dated 17-1-1980 passed by the City Magistrate Etawah, opposite party no. 3. 2. FACTS relevant for the disposal of tikis application may be stated at some length : There is wall called Chesh Bagh wall belonging to the Nagar Palika in the town of Etawah. On both sides of this wall there is land of Nagar Palika, land of one side of this wall has been let out by the Nagar Palika to some persons. On 24-10-1979 the Nagar Palika gave a notice to Kafeel Ahmad (Annexure I) saying that he had opened two doors in the Chesh Bagh wall of the Nagar Palika illegally and that he had thereby committed breach of the conditions of the lease deed. Kafeel Ahmad was called upon to close the doors within 7 days. Kafeel Ahmad did not make compliance of the notice. Therefore, the Nagar Palika filed a criminal complaint against him under section 307 of the U. P. Municipalities Act, 1916. The criminal case was pending before the City Magistrate Etawah. On 17-1-1980 Mohammad Shakoor, opposite party no. 2 moved an application before the City Magistrate for beingi mpleaded in the criminal case (Annexure II). In this application Mohammad Shakoor alleged:- (1) Kafeel Ahmad in collusion with the officials of the Nagar Palika had got filed fictitious case. (2) In the criminal case Kafeel Ahmad has been alleged to be proprietor of Nav Bharat Timber Mart. This fact is totally wrong. In fact Mohammad Shakoor is the owner of the said timber mart. Kafeel Ahmad has no connection with it. In this respect there have been decisions of the various courts. (3) The shop of Mohammad Hanif, brother of Kafeel Ahmad is just to the north of the shop of Mohammad Shakoor. Mohammad Hanif and Kafeel Ahmad desire to take illegal possession over his land. And (4) Mohd. Shakoor got a plan of his shop sanctioned by the Nagar Palika and in the said plan the doors in question were shown. On 17-1-1980 the city Magistrate allowed the application of Mohammad Shakoor and passed order "Let him be impleaded as party". Mohammad Hanif and Kafeel Ahmad desire to take illegal possession over his land. And (4) Mohd. Shakoor got a plan of his shop sanctioned by the Nagar Palika and in the said plan the doors in question were shown. On 17-1-1980 the city Magistrate allowed the application of Mohammad Shakoor and passed order "Let him be impleaded as party". Against this order Kafeel Ahmad filed a. revision before the Sessions Judge Etawah. The Sessions Judge dismissed the revision simply on the ground that order passed by the Magistrate was an interlocutory one, vide copy of order date 30-6-1980 (Annexure IV). Kafeel Ahmad then moved this application. 3. ONE Mohammad Sharafat Ullah Khan has filed counter affidavit on behalf of Mohammad Shakoor. In this affidavit he deposed that Kafeel Ahmad and firm M/s. Nav Bharat Timber Mart of which Mohd. Shakoor is sole proprietor were the tenants of Nagar Palika, that Kafeel Ahmad filed suit no. 458 of 1974 against Nagar Palika and others, that tie parties compromised the case and the case was decided in terms of the compromise on 19-8-1976. ONE of the terms of the compromise was that the tenancy would continue to remain in the names of Kafeel Ahmad, the firm and partners of the firm Nav Bharat Timber Mart. He further deposed in respect of the grounds taken by Mohammad Shakoor in his application for impleadment. He also deposed that the question of tenancy was involved in various civil and criminal cases. 4. KAFEEL Ahmad field a rejoinder affidavit denying the allegations made in the counter-affidavit. The learned counsel for Mohammad Shakoor has filed a certified copy of the compromise which took place in civil suit no 458 of 1974. The relevant terms of this compromise are that Kafeel Ahmad, M/s. Nav Bharat Timber Mart and its partners would remain the tenants of the suit premises and would pay rent at Rs. 100/- per month with effect from 24-9-1974 and that enhanced rent for the period 24-9-1974 to 31-5-1976 had been paid, and that previously the rent was Rs. 25/- per month. 5. LEARNED counsel for the parties have been heard. 6. THE main contention of the petitioner's counsel (i.e. Kafeel Ahmad's counsel) is that the magistrate was not-competent to implead Mohammad Shakoor in the criminal case because there was no provision in the Code of Criminal Procedure enabling him to do so. 25/- per month. 5. LEARNED counsel for the parties have been heard. 6. THE main contention of the petitioner's counsel (i.e. Kafeel Ahmad's counsel) is that the magistrate was not-competent to implead Mohammad Shakoor in the criminal case because there was no provision in the Code of Criminal Procedure enabling him to do so. THE learned counsel placed reliance on the case of Mahipal Singh v. Mahtab Singh, 1967 AWR (HC) 702. In this case Mahtab Singh, Principal of JKJ High School filed a complaint against Turshan Pal Singh, the Manager of the school under sections 406 and 408 IPC. Various items of money were involved. On item was of Rs. 2,500/-. One of the pleas taken by Turshan Pal Singh was that he had paid a sum of Rs. 2,500/- to Mahipal Singh. THEn Mahtab Singh moved an application that, in view of the aforesaid plea, the offence of the sum of Rs. 2,500/- was either committed by Turshan Pal Singh or by Mahipal Singh, and, therefore, Mahipal Singh be impleaded. THE Magistrate allowed the application. THE revision before the Sessions Judge failed. THEn Mahipal Singh moved this Court. On a consideration of the provisions of section 351 of the old Code of Criminal Procedure, this Court allowed the revision. Section 351 provides that any person attending a Criminal Court, although not under arrest or upon and summons, may be detained by such Court for the purpose of inquiry into or trial of any offence of which such Court can take cognizance and which from the evidence, may appear to have been committed, and may be proceeded against as though he had been arrested or summoned. This section empowers a Criminal Court to suo moto implead person as an accused if it is found from the evidence that he has committed an offence. Under this section it is necessary for a Magistrate to record evidence and to come to the conclusion that the person present in court has committed an offence. If these two conditions do not exist, the Magistrate has no right to implead that person as an accused. 7. SECTION 351 corresponds to section 319 of the new Code. SECTION 319 extends the general provisions contained in section 223 of the new Code. SECTION 223 corresponds to section 239 of tike old Code. SECTION 223 lays down as to which persons may be charged and Cried together. 7. SECTION 351 corresponds to section 319 of the new Code. SECTION 319 extends the general provisions contained in section 223 of the new Code. SECTION 223 corresponds to section 239 of tike old Code. SECTION 223 lays down as to which persons may be charged and Cried together. Clause (a) of this section provides that persons accused of the same offence committed in the course of the same transaction can be charged and tried together. 8. THE contention of the petitioner's counsel is that the case of Mohammad Shakoor did not fall either under Sec. 319 or under Sec. 223 Cr. P.C. and therefore the Magistrate was not competent to implead him in the case. On the other side the learned counsel for Mohd. Shakoor referred to two cases: (1) Govind Ram v. Lahori, .1968 AWR (HC) 447 and (2) Chandl Mumar Sarkar v. Probhat Mumm Biswas, AIR 1968 Calcutta 216. Both these cases relate to proceedings under Sec. 145 Cr. P.C. It will be noticed that subsection (3) of Sec. 145 Cr. P.C. lays down that s. copy of the preliminary order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. The intention of affixing a copy of the preliminary order near the place of dispute is that persons interested in the property should come up and prefer their claims before the Magistrate. It meant; that the proceedings under Sec. 145 Cr. P.C. are not confined to only those persons who are mentioned in the preliminary order. In view of this, the cases cited by the learned counsel for the opposite party do not help the opposite party. 9. THE learned counsel for the apposite party next contended that Mohammad Shakoor had an interest in the land which lay by the side of the Nagar Palika wall and that, therefore, he could be impleaded in the Case. He referred to Sees 185, 186, 307, 318 and 319 of the U. P. Municipalities Act. 10. SEC. 9. THE learned counsel for the apposite party next contended that Mohammad Shakoor had an interest in the land which lay by the side of the Nagar Palika wall and that, therefore, he could be impleaded in the Case. He referred to Sees 185, 186, 307, 318 and 319 of the U. P. Municipalities Act. 10. SEC. 185 lays down that whoever begins, continues or completes the erection or re-erection or, any material alteration in a building or part of a building or the construction or enlargement of a wall, without giving the notice to the Nagar Palika, shall be punished and upon conviction he would be liable for fine which may extend to one thousand rupees. SEC. 186 confers powers on the Nagar Palika itself. It lays down that the board may at any time by written notice direct the owner or occupier of any land to stop erection or alteration of a building or part of building and may direct the alteration to be demolished. Breach of the notice under Sec. 186 is punishable under Sec. 307. This section lays down that if a notice has been given under the provisions of this Act to a person requiring him to execute the work or refrain from doing anything within a time specified in the notice, and if such person fails to comply with such a notice, the board may cause work to be executed. Such person shall be liable, on conviction before a magistrate, to a fine which may extend to one thousand rupees. 11. SECTION 318 provides an appeal (from order of the board) by any person aggrieved. It will be noticed that Sec. 318 does not provide an appeal against the order of a Magistrate passed under Sec. 307, Sec. 319 provides reference to High Court if on the hearing of an appeal under Sec. 318 any question as to the legality of the prohibition, direction, notice or order arises. 12. IN the present case the wall in which two openings doors are alleged to have been made by Kafeel Ahmad belongs to the Nagar Palika. IN view of this it is apparent that Sec. 185 of the Municipalities Act has no application. Consequently, Sec. 186, 307, 318 and 319 are not applicable. Therefore, the opposite party cannot take any advantage from these sections. IN view of this it is apparent that Sec. 185 of the Municipalities Act has no application. Consequently, Sec. 186, 307, 318 and 319 are not applicable. Therefore, the opposite party cannot take any advantage from these sections. The learned counsel for the opposite party referred to the case of Jasbhai Motibhai Desai v. Roshan Kumar, AIR 1976 Supreme Court 578 to show that the opposite party could be aggrieved in the instant case. In the case of Jasbhai Motibhai Desai, respondents 1 and 2 moved the District Magistrate for the grant of a certificate that there was no objection to the construction of a cinema hall at a piece of land. The District Magistrate observed certain formalities and inspected that site. He refused to grant the certificate. The respondents then approached the State Government and the State Government directed the District Magistrate to grant "No objection certificate". Thereafter the appellant Jasbhai Motibhai Desai moved a writ petition. Title appellant had a cinema ball at some distance. The writ petition was dismissed by the High Court on the ground that he was not prejudiced or adversely affected by the grant of the certificate. Jasbhai Motibhai Desai then preferred an appeal in the Supreme Court. The Supreme Court also held that the appellant was not prejudiced and could not be termed as aggrieved (sic) observation in this case reads as follows:- "38. To distinguish such applicants from 'strangers'; among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which/the matter falls to be considered. These are : Whether the applicant is a person whose legal right has been infringed and Has he suffered a legal wrong or injury, in the sense, that his interest, recognised by law. Their efficacy varies according to the circumstances of the case, including the statutory context in which/the matter falls to be considered. These are : Whether the applicant is a person whose legal right has been infringed and Has he suffered a legal wrong or injury, in the sense, that his interest, recognised by law. has been prejudicially and directly affected by the act or omission of the authority, complained of and Is he a person who was suffered a legal grievance, a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something and Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public and Was he entitled to object and be heard by the authority before it took the impugned action and If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority and Is the statute, in the contest of which the scope of the words "person aggrieved" is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community and Or is it a statute dealing with private rights of particular individuals ?" 13. THE learned counsel for the applicant referred to the case of Balbhadra Pandey v. D. M. Azamgarh, 1980 AWC 637 . In this case the Municipal Board granted sanction for the construction of a house to Balbhadra Pandey. His neighbour Kedar Nath Agarwal filed an appeal against the order sanctioning the construction. THE question was whether he was aggrieved by the sanction. It was held that there was no injury to his civil rights and that, therefore he was not competent to file an appeal. Taking into consideration the allegations of the complaint of Nagar Palika against Kafeel Ahmad both these questions could not be appropriately decided by the Magistrate. Therefore, in this case the opposite party cannot be said to have any interest in the criminal case. The Nagar Palika does not assert that the opposite party had also committed illegal act by making openings in its wall. The cases is purely of a personal nature against the petitioner. 15. Therefore, in this case the opposite party cannot be said to have any interest in the criminal case. The Nagar Palika does not assert that the opposite party had also committed illegal act by making openings in its wall. The cases is purely of a personal nature against the petitioner. 15. IN view of the above, there was absolutely no justification to implead the opposite party in the criminal case. There was no provision in the Code or in the Municipalities Act enabling the Magistrate to implead the opposite party in this criminal case. 16. IT will be noticed that the Nagar Palika moved no application under section 482 Cr. P.C. against the order passed by the Magistrate. The Nagar Palika also did not put in appearance in this Court. Ordinarily in cases like the present one this court would have interfered! at the instance of Nagar Palika, the comlainant in the case. A question arises whether 'this Court should interfere under section 462 Cr. P.C. at the instance of an accused in the case. Section 482 Cr. P.C. empowers this Court to exercise inherent powers in 3 cases- (i) if it is necessary to give effect to any order under the Code, (ii) to prevent abuse of the process of any court, and (iii) otherwise to secure the ends of justice. 17. IN the present case it has been found above that the Magistrate was not justified/competent to implead the opposite party in the criminal case. His order impleading the opposite party in the criminal case is the abuse of his power. 18. IT will further be noticed that if the opposite party is impleaded in the criminal case he would raise the question of title to the adjoining land and the fact that the criminal case is an out-come of collusion between the petitioner and the officials of the Nagar Palika. IT has been said above that these two points cannot be gone into by the Magistrate in the present case. The scope of the present case is a limited one. Therefore, the presence of the opposite party in this criminal case would not only prolong the disposal of the criminal case but it would also cause un-necessary harassment to) the petitioner. In view of the above, the present case is fully covered by the 2nd and 3rd conditions mentioned in section 482 Cr. P.C. 19. Therefore, the presence of the opposite party in this criminal case would not only prolong the disposal of the criminal case but it would also cause un-necessary harassment to) the petitioner. In view of the above, the present case is fully covered by the 2nd and 3rd conditions mentioned in section 482 Cr. P.C. 19. THE learned Sessions Judge dismissed the revision simply on the ground that the order of the Magistrate was an interlocutory one. This view of the Sessions Judge is not correct. He should have understood the entire import of the order passed by the Magistrate. THE order in fact went to the root i. e. it opened an irrelevant and unnecessary question between the co-accused as to which of them was the rightful occupant of the adjoining land. 20. THE proper remedy open for the opposite party in the present case was to have approached the officers of the Nagar Palika. In case they did not give any relief to him and if the Nagar Palika cdosed the doors which the opposite party considers to have been opened by him with the permission of the Nagar Palika, he should have filed a suit against the Nagar Palika for injunction. Taking into consideration all what has been discussed above, the application is allowed and the order of the Magistrate dated 17-1-1980 impleading Mohammad Shakoor as a party in the criminal case is quashed and the order of the Sessions Judge dt. 30-6-1980 dismissing the revision is also set aside. Application allowed.