T. P. Rajeevan v. Sub-divisional Magistrate — 1985 DIGILAW 150 (KER)

Judgment :- Unusually this petition has been filed invoking the inherent powers as well as the revisional jurisdiction of this Court jointly. The subject-matter of this petition is an order which is neither fish nor flesh. It was passed by the Sub-Divisional Magistrate, Tellicherry on 26-9-1984 on the application of the second respondent without specifying the provision of law under which the action was taken. The authority which empowered such an action is also not indicated in the order. Presumably, the order seems to have been issued under the provisions of Ss. 133, 137 and 138 of the Cr.P.C. and the order reads thus : "Sri Velliyil Usmankutty S/o Bawa, Chethana, Kadirur has put in a petition before this Court, stating that the building bearing door No. 3/385 of Kadirur Panchayat in which you are running a tutorial college, under the name and style Sarathi is in a dilapidated condition and it requires urgent repairs and has requested to take action to vacate the building to carry out the repairs the enquiry also reveals that the building in question is quite unsafe and it is situated in a dangerous condition and it may fall down any moment. You are therefore hereby directed and required to stop the running of the tutorial college in the above said building and to allow the petitioner to carry out the required repairs to the building within 7 days to avoid the damage and danger posed to the human life by the unsound building, failing which appropriate action under the appropriate sections of the Criminal Procedure Code will have to be initiated against you." 2. What appears from the records is that the building bearing door No. 3/385 of the Kadirur Panchayat belongs to the second respondent. He retained one room with him and rented out the hall along with another room to the petitioner for housing a tutorial college by name "Sarathi". In 1983, the second respondent made an attempt to get a license for installing a stone crusher near the building. The attempt is alleged to have failed due to objection from various sources. The case of the petitioner is that the second respondent suspected the hands of the petitioner behind it. It is said that a legal war between the second respondent and the petitioner followed. The second respondent is alleged to have made some attempts to evict the petitioner, but failed. The case of the petitioner is that the second respondent suspected the hands of the petitioner behind it. It is said that a legal war between the second respondent and the petitioner followed. The second respondent is alleged to have made some attempts to evict the petitioner, but failed. It is further stated that the second respondent moved the predecessor of the Sub Divisional Magistrate, who issued the impugned order for invoking the provisions of S. 133 of the Cr.P.C. and in that attempt also he failed. The another petition is alleged to have been filed before the first respondent. On that petition the first respondent obtained reports from his subordinates and passed the impugned order without notice to the petitioner. 3. Jurisdiction seems to have been invoked initially under S. 133(1)(d) of the Cr.P.C. But the order appears to have been passed as a final order under S. 138(2). For the purpose of invoking such jurisdiction there are three stages. The first stage is under S. 133(1). That could be said to be an ex parte stage where the person against whom the conditional order is proposed to be made is nowhere in the picture. It appears that the learned Sub-Divisional Magistrate assumed jurisdiction on his satisfaction by the evidence collected by him that the building is in such a condition that it requires repairs, otherwise it is in danger of falling down at any moment. In order to have such a satisfaction for the purpose of issuing a conditional order the Magistrate may rely on any police report or other information and the consequent made by him. On such enquiry, he must get the satisfaction that the building is in such a condition as contemplated is S. 133(1)(d). It is on such satisfaction that the Magistrate will have to pass a conditional order requiring the responsible person, within a time to be fixed in the order, to remove, repair or support such building. If the person objects to do so, the Magistrate will have to direct him to appear at a time and place fixed in the order and show cause why the order should not be made absolute. 4. It follows that even at the time of issuing the preliminary order, the Magistrate must have his satisfaction regarding the existence of particular stage of affairs enumerated in S. 133(1)(d). 5. 4. It follows that even at the time of issuing the preliminary order, the Magistrate must have his satisfaction regarding the existence of particular stage of affairs enumerated in S. 133(1)(d). 5. Article 227 of the Constitution gives every High Court the power of superintendence over all the Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. In the exercise of such jurisdiction, the High Courts are given the power to make and issue general rule and prescribe forms regulating the practice and proceedings of such Courts and to prescribe forms S. 476 of the Cr.P.C. provides that subject to the above said power of the High Courts, the forms set forth in the Second Sch. with such variations as the circumstances of each case require, may be used for the respective purposes therein mentioned. So far as the present case is concerned, the form prescribed under Sch. II is applicable. According to the said form, after setting forth the grounds, the person against whom the conditional order is issued will have to be called upon to comply with the order or require him to appear and show cause as stated in S. 133(1). The compliance of this formality is an essential ingredient in observing the principle of natural justice. Only on compliance with that provision, the Magistrate gets jurisdiction to proceed further under Ss. 137 and 138. 6. The disputed provision is not intended to help private parties in wreaking vengeance between themselves or in setting their private disputes for which they will have to approach the competent forum. The Sub Divisional Magistrate is discharging a public duty cast on him for the purpose of avoiding something which, though not comes within the definition of public nuisance as defined in the Indian Penal Code, is treated as a public nuisance for the purpose of S. 133. For the purpose of S. 133, it need not be a nuisance to the public at large. Possible injuries to an individual alone may be sufficient in given cases. For the purpose of that provision, such a restricted definition of public nuisance is within the limits of law. Any bow there must be some material for the satisfaction of the Sub Divisional Magistrate for the purpose of issuing a conditional order under S. 133(1). 7. Possible injuries to an individual alone may be sufficient in given cases. For the purpose of that provision, such a restricted definition of public nuisance is within the limits of law. Any bow there must be some material for the satisfaction of the Sub Divisional Magistrate for the purpose of issuing a conditional order under S. 133(1). 7. The Magistrate will have to be careful in order to avoid the contingency of litigants making use of the provision as a substitute for enforcement of their private rights for which they will have to approach the Civil Court or other competent forum. One of the objects of S. 133 must be understood to be prevention of frivolous litigations. After the conditional order the legislature has provided two enquiries at two stages. One is the preliminary enquiry provided under S. 137 and the other is the final enquiry contemplated under S. 138. 8. The preliminary stage, as I have stated earlier, is an ex parte stage. Second and third stages namely, the preliminary and final enquiries are contested stages. The evidence collected at the preliminary ex parte stage cannot be treated as evidence in the enquiry. That is intended only for the satisfaction of the Magistrate for the purpose of issuing the conditional order. It has to be noted that the preliminary order is without notice to the person against whom it is issued and he may not be anywhere in the scene at that stage. At the same time the person invoking jurisdiction will be on record and he may be able to manipulate things. So also the ex parte evidence collected by the Sub Divisional Magistrate is not having the guarantee of correctness or truthfulness inasmuch as it is collected behind the back of the affected person. At that stage, the affected person is not having the chance to intervene for the purpose of ensuring the correctness of the information that reaches the Sub Divisional Magistrate. That is why it is provided that he will have to be given an opportunity to appear and show cause. 9. Section 137(1) provides that as soon as the person against whom the order was made appears the Magistrate will have to question him as to whether he denies the existence of the state of affairs mentioned in the conditional order. 9. Section 137(1) provides that as soon as the person against whom the order was made appears the Magistrate will have to question him as to whether he denies the existence of the state of affairs mentioned in the conditional order. If he denies, before proceeding under S. 138, the Magistrate will have to conduct an enquiry under S. 137(2) to find whether there is any reliable evidence in support of such denial. If he finds that there is reliable evidence in support of such denial, the Magistrate will have to stay the proceedings until the matter of the existence of the right has been decided by a competent Civil Court. If only he finds in the preliminary enquiry that there is no such evidence, he shall proceed as laid down in S. 138. 10. The scope of the enquiry under S. 137 is preliminary in nature. It is also a summary enquiry. What has to be enquired into is the denial of he public right. In that enquiry the Magistrate has only to find whether there is reliable evidence in support of denial. Therefore the scope of that enquiry is limited. The party who has denied the public right will have to be called upon to produce evidence in support of the denial. During that stage, the party at whose instance law was set in motion cannot, as a matter of right, claim that he should also be allowed to adduce evidence. At that stage what the Magistrate is expected to do is only to find out whether the denial is only a pretence or is one raised for the purpose of ousting his jurisdiction. 11. In this case it appears that the second respondent was only making an attempt to invoke the provisions of S. 33 for the purpose of evicting the petitioner from the building. 11. In this case it appears that the second respondent was only making an attempt to invoke the provisions of S. 33 for the purpose of evicting the petitioner from the building. The relevant portion of the order reads : "Sri Velliyil Usmankutty S/o Bawa, Chethana, Kadirur has put in a petition before this Court, stating that the building bearing door No. 3/385 of Kadirur Panchyat in which you are running a tutorial college, under the name and style Sarathi is in a dilapidated condition and it requires urgent repairs and has requested to take action to vacate the building to carry out the repairs." If the building is in such a condition, as stated in the order, requiring urgent repairs and if the landlord wants the building to be vacated for the purpose of carrying out the repairs, his right is only to approach the appropriate civil or other court for that purpose. In a rent control area, he will have to seek his remedies before the Rent Control Court under the provision of the Rent Control Act and in any other area he will have to approach the Civil Court. The authority under S. 133 is not the proper person to be approached in such cases. That is why I said that the second respondent was only misusing his rights. Probably, the Executive Magistrate was labouring under a mistaken impression regarding his powers under Ss. 133, 137 and 138. 12. Under S. 133(1), if repairs of other items of work, contemplated therein are found necessary the person to be directed to do such things is the person against whom the conditional order is passed. But in this case the direction given by the Sub Divisional Magistrate to the petitioner is to stop running of the tutorial college and handover the building to the second respondent within seven days for the purpose of carrying out the repairs. Such an order actually amounts to an order of eviction which is not contemplated under any of the above said provisions. The petitioner was directed by the Magistrate to handover the building within seven days. It was also provided therein that failing compliance appropriate action under the relevant provisions of the Cr.P.C. will be initiated against him. It is not known under which provision of the Cr.P.C., the learned Magistrate thought of initiating the proceedings. The petitioner was directed by the Magistrate to handover the building within seven days. It was also provided therein that failing compliance appropriate action under the relevant provisions of the Cr.P.C. will be initiated against him. It is not known under which provision of the Cr.P.C., the learned Magistrate thought of initiating the proceedings. There cannot be any dispute regarding the fact that the Sub Divisional Magistrate was labouring under a mistaken impression regarding his rights. Otherwise the position is that he was misusing his powers for the purpose of lending helping hand to the second respondent in achieving something for which he ought to have resorted to the available provisions of law. 13. A final order contemplated under S. 138(2) of the Cr.P.C. could be passed only if the person against whom the preliminary order has been passed failed to deny the existence of the public right. Otherwise he will have to find that there is no evidence in support of the denial. Then alone, he can proceed under S. 138(2). 14. Regular enquiry is contemplated only for the purpose of passing the order contemplated under S. 138(2). If only on taking such evidence as is contemplated under S. 137(1), the Magistrate is satisfied that the order as originally made or subject to such modification as he considers necessary, is reasonable and proper, that he can pass a final order. When the party appears and denies the public right, the Magistrate has to conduct an enquiry in accordance with S. 137(1). In this case, none of these formalities were complied with. 15. The Advocate General has produced before this Court the relevant file on the basis of which the Executive Magistrate acted. The file shows that after getting a petition from the second respondent, the first respondent Sub Divisional Magistrate, obtained some reports from his subordinates and passed an order without notice to the petitioner and without complying with the principles of natural justice. He has passed a composite final order without even giving an opportunity to the petitioner to deny the right, to show cause or adduce evidence in support of the denial. There cannot be any dispute regarding the fact that this is one of the best examples of misuse of power either due to ignorance or purposely. The order requires interference by this Court. 16. There cannot be any dispute regarding the fact that this is one of the best examples of misuse of power either due to ignorance or purposely. The order requires interference by this Court. 16. From the file produced by the Advocate General, it is seen that the disputed building is used as a tutorial college attended by several students and teachers. It is also seen from the reports of the Revenue Officers contained in the file that the condition of the building is dangerous. It cannot now be said whether the dangerous condition mentioned in the reports is factually correct or not. While setting aside the impugned order, especially in view of the above said reports, I feel that it is necessary for me, to reserve the right of the Sub-Divisional Magistrate, if he thinks fit, to proceed under the provisions of Ss. 133 and 137 and if necessary under S. 138 also. Subject to what is stated above, the petition is allowed and the impugned order is set aside. Petition allowed.