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1999 DIGILAW 796 (PAT)

Md. Yunus v. State Of Bihar

1999-08-20

S.N.JHA

body1999
Judgment S.N.Jha, J. 1. Cri. Misc. No. 7289/98 is directed against an order by which a proceeding under Section 133, Cr PC was initiated, Cr Rev. No. 358/99 is directed against the final order passed in that proceeding. The dispute in both the cases being one and the same, they are being disposed of by this common order. The relevant facts may be set out as follows. On October 1, 1997. Opposite First Party, Bindeshwari Prasad and Gopalji Prasad filed application alleging that the adjoining house belonging to. Opposite Second party, Mithilesh Kumar and Bimlesh Kumar was in dilapidated condition which could fall down any moment, thus giving rise to apprehension of injury to the local residents. On receipt of the said application, which was registered as Case No. 90/97 under Section 133, Cr PC show-cause notice was issued to said Mithilesh Kumar and Bimlesh Kumar. The petitioners herein, who are tenants in the building in question, filed intervention petition denying the allegation of the applicants regarding the dilapidated condition of the building. The Opposite Second Party filed show cause. On 8.9.1998, a proceeding under Section 133 was formally initiated. Earlier, it appears, a report had been called for from the Special Officer, Ara Municipality which was received. From the extracts of the order-sheet of the case, it appears that on 29.4.1999, the Opposite First Party i.e. the applicants of the Misc. case, filed application seeking permission to withdraw the case which was objected to by the Opposite Second Party. On 8.6.1999, the withdrawal petition was rejected and the final order was passed. The Magistrate directed the Opposite Second Party to get the building demolished. It may be mentioned here that before the said order was passed, neither party led any evidence. The order was passed on the basis of the report submitted by the Special Officer vide his letter dated 19.3.1998 and another report of the Pleader Commissioner. 2. The case of the petitioners herein is that they are tenants in the building since 30.6.1980, doing business in the sale of footwear therein. The Opposite Second Party who are the owners of the building, filed title suit No. 265/83 for their eviction on the ground of default. The suit was dismissed on 19.3.1987. The appeal being title appeal No. 446/87 was also dismissed on 29.7.1989. The Opposite Second Party who are the owners of the building, filed title suit No. 265/83 for their eviction on the ground of default. The suit was dismissed on 19.3.1987. The appeal being title appeal No. 446/87 was also dismissed on 29.7.1989. The Opposite Second Party preferred Second Appeal No. 460/89 which too was dismissed on 29.9.1997. After the Opposite Second Party failed to obtain a favourable order for eviction of the petitioners from the building, they set up the Opposite First Party and got the aforesaid application under Section 133, Cr PC filed through them. 3. In course of hearing of the case, while dealing with the aforesaid argument of the counsel for the petitioners, it was submitted on behalf of Opposite Second Party that the issue in the eviction suit was entirely different and, therefore, the fact that the suit was dismissed, cannot be used as a ground to resist the order of the demolition of the building in a proceeding under Section 133, Cr PC placing reliance on the reports of the Pleader Commissioner and the Special Officer of the Municipality, it was submitted that the facts stated therein do not leave room for doubt that the building in question is in dilapidated condition which requires to be demolished. 4. At this stage, the relevant provisions regarding Public Nuisances occurring in Sub-Chapter B of Chapter X of the Cr PC may briefly be noticed as hereunder : 5. Section 133 envisages issuance of a conditional order and notice for removal of nuisances in certain situations as mentioned in clauses (a) to (f) of the Section. Section 135 lays down that the person against whom such order has been made shall either perform the act directed to be performed by the conditional order under Section 133(1) or appear and show cause why he cannot be compelled to perform the act. If he fails to either perform the act or appear and how cause, he becomes liable to penalty under Section 188, IPC and the conditional order may be made absolute. Where he appears and files show cause and denies the existence of public right, the Magistrate is required to make a summary enquiry to find out whether there is any reliable evidence in support of such denial of existence of public right. Where he appears and files show cause and denies the existence of public right, the Magistrate is required to make a summary enquiry to find out whether there is any reliable evidence in support of such denial of existence of public right. Where he finds that there is substance in such denial, he is required to stay the proceeding until the matter regarding existence of such right has been decided by a competent Court. Where he does not find any evidence of any such right, he is required to proceed in the manner laid down in Section 138. Section 138 provides for full-fledged enquiry to be held in accordance with the procedure prescribed for summons case. 6. From the above resume of the provisions relating to proceeding under Section 133, Cr PC, it is evident that in a case where the proceedee file show cause and denies the existence of public right, the Magistrate is required to hold enquiry. The law thus envisages a summary enquiry under Section 137 followed by a full-fledged enquiry under Section 138 in appropriate cases. In the present case, no enquiry whatsoever appears to have been made. It is true that under Section 139, it is open to the Magistrate to get local inspection made by such person as he thinks fit for the purpose of enquiry under Sections 137/138. However, it appears to me that such local inspection can be made in aid of the enquiry which is required to be held by the Magistrate himself under Sections 137/138, as the case may be. The local investigation such as by Pleader Commissioner or an officer of the Municipality cannot take the place of enquiry within the meaning of Sections 137/138. 7. Without intending to express my opinion on the merit of the case, for I propose to send the matter down for fresh consideration, I may observe that contest between the Opposite 1st and 2nd Parties appears to be quite friendly. It does not appear to be mere co-incidence that after the second appeal of the Opposite Second Party was dismissed by this Court on 29.9.1997, on 1.10.1997, the Opposite First Party filed the application under Section 133. It is indeed significant that when the Opposite First Party wanted to withdraw from proceedings, opposition came from none else than the owners of the building i.e. Opposite Second Party themselves. 8. It is indeed significant that when the Opposite First Party wanted to withdraw from proceedings, opposition came from none else than the owners of the building i.e. Opposite Second Party themselves. 8. In the facts of the case and having regard to the background in which the proceeding has been initiated, I am inclined to think that it would be in the fitness of things and the ends of justice to allow opportunity to the petitioners to lead evidence. As, apparently, no such opportunity was given them to do so on this ground alone the order cannot be said to be in accordance with law. Opportunity to participate in the proceeding is all the more essential as except the reports of the Pleader Commissioner and the Special Officer of the Municipality, there is no other evidence on the record. In the circumstances, I have no hesitation in setting aside the final order dated 8.6.1998 as being illegal and without jurisdiction 9. Before I conclude, I must mention that the petitioner appears to have filed a suit, T.S. No. 60/98, seeking declaration that the condition of the building is not such in which it could fall down and, further that the defendants i.e. landlords of the house (Opposite Second Party) have no right to get them evicted illegally. I do not wish to make any comment regarding the said suit. I would, however, observe that the pendency of the suit will not stand in the way of the Magistrate in proceeding under Section 133, Cr PC in accordance with law. 10. The impugned orders dated 8.6.1999 is accordingly set aside and these petitions are disposed of.