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2002 DIGILAW 333 (GAU)

Binoy Bhusan Bardhan v. State of Assam

2002-08-09

AFTAB H.SAIKIA

body2002
A.H. SAIKIA, J.: Heard Mr. A.K. Bhattacharyya, learned Sr. counsel assisted by Mr. S.C. Biswas, learned counsel for the Petitioner and Mr. H.N. Sarma, learned Sr. counsel assisted by Mr. P.P. Barua, learned counsel for the respondent. 2. As agreed by the learned counsel for the parties, I intend to terminate this revision finally at the admission stage today itself. 3. Assailing the impugned order dated 9.7.2002 passed by the Sub-Divisional Magistrate, Biswanath Chariali, Mr. Bhattacharyya has vehemently contended that this impugned order ex facie is not maintainable and sustainable inasmuch as the same has been passed absolutely in contravention of the procedure employed in Section 133 Cr.P.C. Drawing attention to the said provision of law, Mr. Bhattacharyya, refers to the relevant portions as under - "133. Conditional order for removal of nuisance - (1) Whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers - (a) ----- -- (b) ------- (c) ------- (d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or (e) ------- (f) ------- such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or woning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order - (i) ------- (ii) ------- (iii)------- (iv) to remove, repair or support such building, tent, or structure, or to remove or support such trees; or (v) -------- (vi) -------- or, if he objects so to do to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute." 4. According to him, Section 133 ordains that a Magistrate on receiving the report of a police officer or other information is duty bound to take evidence before passing any such order. That apart, considering the urgent nature as regards the existence of any public nuisance as provided in clause (d) above, the Magistrate may pass only a conditional order. But this impugned order does not reflect any such order of conditional nature, most importantly, no notice whatsoever has been served upon the Petitioners, before passing the impugned order. Although the Petitioners are greatly prejudiced by this order, they have even not been made parties in the proceeding. 5. Mr. Sarma, learned Sr. counsel opposing the contentions made on behalf of the petitioner, has trenchantly argued that there is no illegality or infirmity in passing the impugned order. The learned Magistrate on being satisfied on a police report and other document available on records has passed this order taking into account the dilapidated condition of the building in question. 6. At this stage, Mr. Bhattacharyya has forcefully contended that a police personnel is not an expert to comment on the condition of a building. To discard any such police report, he has referred to a certificate dated 27-7-01 (Annexure-4 to the revision Petition) issued by Assistant Executive Engineer, PWD, Biswanath Chariali Building Division, by which it is certified that the present condition of the building found fit and good to run the shop as usual. According to him, as per the Certificate issued by the said engineer, being an expert and competent to certify, there is no danger in human occupation of the said building. 7. For better appreciation of the rival contentions of the parties, it would be necessary to refer the factual matrix of the case in a short compass as well as the impugned order. 8. Facts in brief may be noticed as under- Admittedly the petitioners are tenants under the respondents. On 18-10-2000 a legal notice was served upon the petitioners to vacate the rented premises by December, 2000 stating that they were occupying the rooms in the ground floor of the double storied wooden building in a nominal rent by Biswanath Chariali Town Committee (for short the 'Committee') vide letter dated 18-6-1998 also issued a notice to the respondent prohibiting her to use the building after 3 months of receipt of the letter. Thereafter again on 13-5-2002 the respondent sent another legal 13-5-2002 through her lawyer to the petitioner to vacate and hand over the peaceful possession of the rented house and premises of the ground floor of the rental building within 15 days failing which a suit for ejectment and recovery of the peaceful possession would be instituted. When the petitioners have been occupying the rental premises without vacating the same pursuant to the legal notice, suddenly to their great surprise, Biswanath Chariali Police served a copy of the order dated 9.7.2002 passed by the Sub-Divisional Magistrate, Biswanath Chariali for demolition of the buildng fixing a date on 25-7-2002 to show cause as to why the order shall not be made absolute. Hence the revision laying challenge to the said order- 9. The impugned order dated 9.7.2002 is reproduced hereunder- “9.7.2002 Perused the application of the Petitioneer Srimati Champa Devi Sancheti, dated 6.6.2002 as well as the report of Police, iswanath Circle office, PWD (Building) and Biswanath Chariali Town Committee. It is seen from reports that petitioner two storied building situated on the main road of 52 National highway of Chariali covered by Chariali Nagar Kochgaon Khanda P.P. No. 123 and Dag No. 134 which is quite old and become weak and there is a chance of collapse and caused accident in this connection the Biswanath Chariali Town Committee has already cautioned not to use the building. It is also seen that the land-lady requested the tenants to vacate the rooms for, she wants to reconstruct but the tenants on the ground floor without vacating the rooms running the business. After perusing all the documents it is believed that the house is presently become unfit for human habitation and at any time may caused damaged due to earthquake and may also cause loss of property and human lives besides causing public tranquility. As such under Section 133 of Cr.P.C. a case is registered and house has been declared as unfit for human habitation the land-lady is directed to demolish the house within 15 days for rebuilt as per the law. Why the order shall not be made absolute cause can be shown if there is any reasonable cause by 25.7.2002. The police is to report compliance report, all concerned be informed. Why the order shall not be made absolute cause can be shown if there is any reasonable cause by 25.7.2002. The police is to report compliance report, all concerned be informed. Schedule Two story building situated at Biswanath Chariali two covered by Koch Gaon Kharda P.P. No. 123 and Dag No. 234 bounded by :- East: Mahananda Sanchati West: Jetmal Jaichand Lal North: Hiralal Sancheti South : N.H. 52 No. way Memo No. Misc. 7/2002/1327 dt. 9.7.2002 Sd/- Sub-Divisional Magistrate, Biswanath Chariali." 10. A bare perusal of the impugned order makes it seemingly clear that this order has been passed by way of a direction to complete the demolition of the buildings within 15 days as per law and thereafter show cause has been given fixing a date i.e. 25.7.2002 as to why the order so passed shall not be made absolute. Such order ex facie itself is not permissible under law. That apart, a conspectus reading of the order itself goes to show that no opportunity was given to the petitioners who are directly and adversely effected by this order being the tenants under the respondents. Even the petitioners are not made parties in the proceedings under Section 133 Cr.P.C. Interestingly, it appears that the respondent having failed to evict her tenants - the petitioners, instead of taking any legal action as mentioned in the legal notice, served upon the petitioners as pointed out, has obtained the impugned order adopting a device of such nature to evict the petitioners. It is admitted fact that the petitioners are not made parties under this proceeding when they are the only person to be effected by such demolition order. It is settled position that a duty is cast on any authority exercising any administrative or judicial power to adhere to the principle of natural justice. But it apparently appears that the same is lacking in the instant case. On this score alone in my opinion this impugned order is liable to be quashed. 11. The scope of Section 133 is only for removal of public nuisance which is reflected from the reading of the Section itself. But in settlement of private dispute between the parties, it cannot be a subject matter of the proceedings under this Section. On this score alone in my opinion this impugned order is liable to be quashed. 11. The scope of Section 133 is only for removal of public nuisance which is reflected from the reading of the Section itself. But in settlement of private dispute between the parties, it cannot be a subject matter of the proceedings under this Section. It appears from the materials available on record that this is a dispute between the land lady and tenants i.e. the respondent and the petitioners respectively and relating to eviction of the petitioners from the rented house. That being so, the dispute is obviously is of civil nature. In this premises the learned Magistrate ought to have restrained himself from passing this impugned order because the entire action of the respondent goes to show the tendency to use this proceeding under Section 133 against the parties for settlement of the private dispute. Besides, it is also seen that the learned Magistrate while passing the impugned order has not acted in conformity with the provisions of law laid down under Section 133 of the Cr.P.C. inasmuch as no attempt has been made to take evidence before passing this order which is manifestly not a conditional one. 12. That being the position, upon hearing the learned counsel for the parties and perusal of the materials on record I unhesitatingly hold that the impugned order suffers from illegality and infirmity and deserves interference by this Court and accordingly the same is quashed and set aside. Interim order passed earlier is hereby made absolute. In the result Revision succeeds.