Research › Browse › Judgment

Kerala High Court · body

1996 DIGILAW 213 (KER)

A. Parameshwaran v. R D O

1996-06-05

P.K.IYER BALASUBRAMANYAN

body1996
JUDGMENT P.K. Balasubramanyan, J. 1. The petitioners are the tenants of 'two buildings' within the meaning of theKerala Buildings (Lease & Rent Control) Act under the third respondent. Thepremises occupied by the petitioner in O.P. 13989 of 1995 is XXVI/816 andthat occupied by the petitioner in O.P. 14123 of 1995 is XXVI/817. There weretwo other rooms or units in the said building having numbers XXVI/818 andXXVI/819. The said two units were occupied by two other tenants under thethird respondent. All these separate units were part of a multi storied structure.The petitioners have approached this court challenging the proceedingsinitiated for the demolition of the structure under S.133 of the Code of CriminalProcedure. The notices Exts.P1 and P3, in that behalf issued to the petitionersare sought to be challenged. Ext. P1 is the preliminary notice issued to thethird respondent landlord and Ext. P3 is the notice by the Sub DivisionalMagistrate, Alappuzha posting the case to 23-8-1995 for enquiry with notice tothe petitioners herein. 2. From the counter affidavit it is revealed that subsequently, the Sub Divisional Magistrate passed an order in respect of the premises bearingNos.818 and 819 and the tenants in occupation of those units had left thepremises and the premises were demolished. No order was passed by theSub Divisional Magistrate in respect of the units occupied by the petitioners,Door Nos. 816 and 817 in view of the pendency of these Original Petitions.The order passed in that behalf by the Sub Divisional Magistrate is producedalong with the counter affidavit of the third respondent and is marked asExt.R3(e) in both the original petitions. 3. According to the petitioners, the attempt of the third respondent landlordwas to bypass the provisions of the Kerala Buildings (Lease and Rent Control)Act and this was an attempt to get the tenants thrown out of the premises. Thisis strongly denied by the landlord who points out that a portion of the structurehad earlier collapsed and the tenants in occupation of building Nos. 818 and819 had already left the premises and an order for demolition had beenpassed and carried out. It is also pointed out that the whole proceeding aroseout of an application filed by one Mariam Haji Moosa, the neighbouring ownerwho complained of obstruction due to the collapse of a portion of structure anddanger to life, because of the dangerous condition of the structure. It is also pointed out that the whole proceeding aroseout of an application filed by one Mariam Haji Moosa, the neighbouring ownerwho complained of obstruction due to the collapse of a portion of structure anddanger to life, because of the dangerous condition of the structure. It is pointedout that the landlord had not approached the Rent Control Court even forgetting the tenants evicted and she should not be responsible for any damagecaused to the neighbouring owners or pedestrians by the collapse of the entirestructure. It is pointed out that the structure was about 60 to 70 years old andbeing built of laterite stones and lime mortar, was in a dangerous condition. 4. The fact that the petitioners are entitled to protection of the Kerala Buildings(Lease and Rent Control) Act does not exclude the operation of S.133 of theCode of Criminal Procedure or the exercise of power thereunder, by theauthorities concerned. That position has been laid down by this court in morethan one decision. It cannot therefore be said that the Sub DivisionalMagistrate has no jurisdiction to initiate proceedings under S.133 of the Codeof Criminal Procedure or to pass orders thereon. The proceedings challengedbefore this court by the petitioners are only the preliminary notices issuedunder S.133 of the Code of Criminal Procedure and the notices posting theproceedings to a particular date for consideration. As regards the two unitsoccupied by the petitioners, no final orders have been passed by the SubDivisional Magistrate. Ext.R5(e) indicates that the Sub Divisional Magistratedid not take a final decision in respect of building Nos. 816 and 817, occupiedby the petitioners herein in view of the pendency of these Original Petitions. Ithink that the action of the Sub Divisional Magistrate in keeping the proceedings in abeyance in view of the pendency of the Original Petitions cannot be faulted. Since I find that there is no bar to the initiation of the proceedings by the Sub Divisional Magistrate, the proper course to adopt in these cases is to direct the Sub Divisional Magistrate to pass final orders on the proceedings initiated by her under S.13 of the Code of Criminal Procedure after the enquiry contemplated by the notice Ext. P3. 5. Learned counsel for the petitioners has a contention that the whole exercise was malafide and was initiated by the landlord. In the circumstances of this case, the said contention cannot be accepted. P3. 5. Learned counsel for the petitioners has a contention that the whole exercise was malafide and was initiated by the landlord. In the circumstances of this case, the said contention cannot be accepted. It is seen that a portion of the building had collapsed and there was a motion by a neighbouring owner whose passage was blocked by the debris from the fallen portion of the structure. The order Ext.R3(e) dealing with the premises bearing Nos.818 and 819 also refers to reports of the Engineer concerned regarding the condition of the building. It cannot therefore be said that the action of the Sub Divisional Magistrate was motivated or malafide. On being moved, the Sub Divisional Magistrate had a statutory duty to look into the complaint made by the complainant. I therefore find no substance in the contention of the petitioners that the proceedings were initiated malafide. 6. Having found that there is no absence of jurisdiction of the Sub Divisional Magistrate to initiate action under S.133 of the Code of Criminal Procedure merely because the occupant of a building is entitled to the protection of the Kerala Buildings (Lease and Rent Control) Act and having found that the initiation of the action was not vitiated by malafides or irrelevant consideration, I do not think it proper to interfere at this stage with the notices issued by the Sub Divisional Magistrate. I am of the view that the proper direction to make is to direct the Sub Divisional Magistrate to pass final orders in the proceedings covered by Exts.P1 to P3 in these Original Petitions in respect of the building Nos.816 and 817 and to take a final decision in the proceedings covered by the notices Ext. P3 in these Original Petitions. The Sub Divisional Magistrate will give an opportunity to all the parties, including the landlord and the tenants to put forward their contention and pass final orders in respect of buildings bearing Nos. 816 and 817 in the proceedings covered by the notices Ext. P3 in these cases. The final orders will be passed by the Sub Divisional Magistrate as expeditiously as possible. The Original Petitions are disposed of with the above directions. There will be no order as to costs.