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2021 DIGILAW 1187 (BOM)

Annaji Atmaramji Tamboli v. State of Maharashtra

2021-09-03

MANISH PITALE

body2021
JUDGMENT/ORDER 1. Heard finally. 2. By this application, the applicant has challenged order passed by the respondent No.1 - Tahsildar under Section 133 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C. "), whereby the respondent No.2 i.e. Chief Officer of the Municipal Council has been directed to demolish a structure in which the applicants and their predecessors claimed to be tenants. The applicants have also challenged judgment and order passed by the Sessions Court, whereby revision application was dismissed and the aforesaid order of the respondent No.1 - Tahsildar was confirmed. 3. The brief facts leading to filing of the present application are that the respondent no.3 i.e. the owner of the said structure received a notice on 27/10/2010, from the respondent No.2 - Chief Officer, Municipal Council under Section 195 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, asking the respondent No.3 to demolish the structure in question within seven days, since the said structure was dilapidated and there was possibility of loss of life and financial loss if the structure was not demolished. On 02/08/2011, the respondent No.3 applied before the respondent No.1 - Tahsildar for permission to demolish the structure, in view of the possibility of loss of life and financial loss. On this basis, the respondent No.1- Tahsildar initiated proceeding under Section 133 of the Cr.P.C. On 15/10/2011, the respondent No.1 - Tahsildar passed an order exercising power under Section 133 of the Cr.P.C. and directed removal/demolition of the said structure. 4. The applicants filed a revision application before the Sessions Court, challenging the said order of the respondent No.1 - Tahsildar. By order dated 01/11/2011, the Sessions Court partly allowed the revision application. It was found that although a public notice was issued by the respondent No.1 - Tahsildar before passing the said order, but, the concerned persons were not put to notice when the order of demolition was issued. Therefore, the order of respondent No.1 - Tahsildar was set aside and the matter was remanded for fresh decision, after giving opportunity of hearing to all concerned. 5. Upon remand, the respondent No.1 - Tahsildar called for a spot inspection report, which confirmed the dilapidated nature of the structure and the fact that it would be a nuisance to the public. 5. Upon remand, the respondent No.1 - Tahsildar called for a spot inspection report, which confirmed the dilapidated nature of the structure and the fact that it would be a nuisance to the public. Since there was grievance raised in the matter that the said inspection report was not prepared in presence of all parties, a fresh spot inspection was conducted. A report dated 07/02/2015, was prepared on the specific instructions of the respondent No.2 - Chief Officer of the Municipal Council. The spot inspection was carried out in the presence of the Naib-Tahsildar, the applicants as well as the respondent No.3 and the Engineer of the respondent No.2 - Municipal Council. The report prepared in pursuance of the said spot inspection, along with the map annexed therewith, placed on record the condition of the structure in question. It was recorded in the report that the structure was in a highly dilapidated condition and parts of it had already fallen. 6. Thereafter, the respondent No.1 - Tahsildar gave hearing to the contesting parties and upon taking into consideration the aforesaid spot inspection report dated 07/02/2015, he concluded that the said structure was in such a condition that it was likely to fall and cause injuries to persons and that its removal was necessary. Accordingly, the respondent No.1 - Tahsildar directed removal / demolition of the said structure. 7. Aggrieved by the same, the applicants filed revision application before the Sessions Court. By the judgment and order dated 26/04/2019, the Sessions Court dismissed the revision application and confirmed the order of Tahsildar. 8. The applicants filed the present application challenging the said orders passed by the respondent No.1 - Tahsildar and the Sessions Court. On 07/08/2019, the present application was admitted and interim stay was granted. In the said order, this Court recorded that the applicants undertook that if there was any loss of life, they would be responsible for the same. This Court also noted that the first notice of demolition was issued in the year 2011. The application was taken up for final hearing. 9. Mr. K.Y. Mandpe, learned counsel appearing for the applicants submitted that in the present case, the conditions precedent for exercising power under Section 133 of the Cr.P.C. were absent. This Court also noted that the first notice of demolition was issued in the year 2011. The application was taken up for final hearing. 9. Mr. K.Y. Mandpe, learned counsel appearing for the applicants submitted that in the present case, the conditions precedent for exercising power under Section 133 of the Cr.P.C. were absent. It was submitted that the respondent No.3, being the landlord, was seeking to invoke powers of respondent No.1 - Tahsildar, under Section 133 of the Cr.P.C., when in fact the dispute was of a civil nature, because the respondent No.3 was only interested in dispossessing the applicants from the structure in question. It was submitted that the spot inspection report was not acceptable to the applicants. It was further submitted that parts of the structure were still in use of the applicants and that the respondent No.1 - Tahsildar in the present case failed to exercise jurisdiction in the proper perspective. The learned counsel relied upon judgment of this Court in the case of Shrikant s/o Shankarrao Agnihotri Vs. Shri Rajeshwar Sansthan, Akola and Ors. 2018 ALL MR (Cri) 4880, judgment of Gujarat High Court in the case of Mulubhai Vs. State of Gujarat 2020 Cri LJ 2642 and judgment of the Hon 'ble Supreme Court in the case of Vasant Manga Nikumba and others Vs. Baburao Bhikanna Naidu (Deceased) by LRs and another 1995 Supp (4) SCC 54. 10. On the other hand, the learned counsel appearing for the contesting respondent No.3 submitted that the respondent No.1 - Tahsildar in the present case correctly exercised power and jurisdiction under Section 133 of the Cr.P.C. It was submitted that the spot inspection report was prepared in the presence of the applicants and merely because they stated that they did not accept the same, it would not change the ground realities. It was submitted that the applicants themselves had stopped using the premises since before the time the aforesaid proceeding was initiated by the respondent No.1 - Tahsildar and that the respondent No.1 - Tahsildar as well as the Sessions Court had correctly appreciated the position of law while passing the orders against the applicants. The learned counsel placed reliance on the judgment of this Court in the case of State, Rep. By Urban Health Officer Vs. Shri Jose Caesar D 'Sourza and Ors. 2008 ALL MR (Cri) 3450. 11. Mr. The learned counsel placed reliance on the judgment of this Court in the case of State, Rep. By Urban Health Officer Vs. Shri Jose Caesar D 'Sourza and Ors. 2008 ALL MR (Cri) 3450. 11. Mr. M.P. Kariya, learned counsel appeared on behalf of the respondent No.2 - Municipal Council. He stated that the Hon 'ble Supreme Court had laid down the position of law in respect of Section 133 of the Cr.P.C. and that private disputes could not be settled through the said provisions of law. It was submitted that in the present case it appeared that the respondent No.3 desired to dispossess the applicants, as a result of which the proceedings were initiated. Interestingly, the said contention raised on behalf of the respondent No.2- Municipal Council is in the teeth of its own notices issued for the removal/demolition of the structure. Reliance was placed on the judgment of Uttarakhand High Court in the case of Abdul Hamid Vs. State of Uttarakhand and Others 2018(103) ACrC 904. 12. Mr. S.D. Sirpurkar, learned APP appeared on behalf of respondent No.1 - Tahsildar. He supported the impugned orders passed by the respondent No.1 - Tahsildar and the Sessions Court in the present case. 13. Heard learned counsel for the parties and perused the material on record. Before adverting to the rival contentions and considering the present case on its facts, it would be appropriate to refer to the position of law laid down in respect of Section 133 of the Cr.P.C. The relevant portion of the said provision reads as below. "133 Conditional order for removal of nuisance :- (1) Whenever a District Magistrate or a SubDivisional 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 owning, 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) to remove such obstruction or nuisance; or (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. " 14. The Hon 'ble Supreme Court in the case of Kachrulal Bhagirath Agrawal and others Vs State of Maharashtra and Others (2005) 9 SCC 36 , had an occasion to consider the scope of Section 133 of Cr.P.C. and the power exercised by the competent authority under the said provision. In the said judgment, the Hon 'ble Supreme Court, after quoting the relevant portion of the said provision, held as follows : "10*.A proceeding under Section 133 is of a summary nature. It appears as a part of Chapter X of the Code which relates to maintenance of public order and tranquility. The Chapter has been classified into four categories. Sections 129 to 132 come under the category of "unlawful assemblies". Sections 133 to 143 come under the category of "public nuisance". Section 144 comes under the category of "urgent cases of nuisance or apprehended danger" and the last category cover Sections 145 to 149 relating to "disputes as to immovable property". Nuisances are of two kinds, i.e. (i) Public; and (ii) Private. "Public nuisance " or "common nuisance " as defined in Section 268 of the Indian Penal Code, 1860 (in short the 'IPC') is an offence against the public either by doing a thing which tends to the annoyance of the whole community in general or by neglecting to do anything which the common good requires. "Public nuisance " or "common nuisance " as defined in Section 268 of the Indian Penal Code, 1860 (in short the 'IPC') is an offence against the public either by doing a thing which tends to the annoyance of the whole community in general or by neglecting to do anything which the common good requires. It is an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity. "Private nuisance " on the other hand, affects some individuals as distinguished from the public at large. The remedies are of two kinds civil and criminal. The remedies under the civil law are of two kinds. One is under Section 91 of the Code of Civil Procedure, 1908 (in short "CPC "). Under it a suit lies and the plaintiffs need not prove that they have sustained any special damage. The second remedy is a suit by a private individual for a special damage suffered by him. There are three remedies under the criminal law. The first relates to the prosecution under Chapter XIV of IPC. The second provides for summary proceedings under Sections 133 to 144 of the Code, and the third relates to remedies under special or local laws. Subsection (2) of Section 133 postulates that no order duly made by a Magistrate under this Section shall be called in question in any civil Court. The provisions of Chapter X of the Code should be so worked as not to become themselves a nuisance to the community at large. Although every person is bound to so use his property that it may not work legal damage or harm to his neighbour, yet on the other hand, no one has a right to interfere with the free and full enjoyment by such person of his property, except on clear and absolute proof that such use of it by him is producing such legal damage or harm. Therefore, a lawful and necessary trade ought not to be interfered with unless it is proved to be injurious to the health or physical comfort of the community. Proceedings under Section 133 are not intended to settle private disputes between different members of the public. They are in fact intended to protect the public as a whole against inconvenience. Therefore, a lawful and necessary trade ought not to be interfered with unless it is proved to be injurious to the health or physical comfort of the community. Proceedings under Section 133 are not intended to settle private disputes between different members of the public. They are in fact intended to protect the public as a whole against inconvenience. A comparison between the provisions of Section 133 and 144 of the Code shows that while the former is more specific, the latter is more general. Therefore, nuisance specially provided in the former section is taken out of the general provisions of the latter section. The proceedings under Section 133 are more in the nature of civil proceedings than of criminal nature. Section 133(1)(b) relates to trade or occupation which is injurious to health or physical comfort. It itself deals with physical comfort to the community and not with those acts which are not in themselves nuisance but in the course of which public nuisance is committed. In order to bring a trade or occupation within the operation of this Section, it must be shown that the interference with public comfort was considerable and a large section of the public was affected injuriously. The word 'community' in Clause (b) of Section 133(1) cannot be taken to mean residents of a particular house. It means something wider, that is, the public at large or the residents of an entire locality. The very fact that the provision occurs in a Chapter with "Public Nuisance" is indicative of this aspect. It would, however, depend on the facts situation of each case and it would be hazardous to lay down any straitjacket formula. 11. The guns of Section 133 go into action wherever there is public nuisance. The public power of the Magistrate under the Code is a public duty to the members of the public who are victims of the nuisance, and so he shall exercise it when the jurisdictional facts are present. "All power is a trust that we are accountable for its exercise - that, from the people, and for the people, all springs and all must exist". The conduct of the trade must be injurious in praesenti to the health or physical comfort of the community. "All power is a trust that we are accountable for its exercise - that, from the people, and for the people, all springs and all must exist". The conduct of the trade must be injurious in praesenti to the health or physical comfort of the community. There must, at any rate, be an imminent danger to the health or the physical comfort of the community in the locality in which the trade or occupation is conducted. Unless there is such imminent danger to the health or physical comfort of that community or the conduct of the trade and occupation is in fact injurious to the health or the physical comfort of that community, an order under Section 133 cannot be passed. A conjoint reading of Sections 133 and 138 of the Code discloses that it is the function of the Magistrate to conduct an enquiry and to decide as to whether there was reliable evidence or not to come to the conclusion to act under Section 133. " 15. In the said judgment, the Hon 'ble Supreme Court has also referred to earlier judgment in the case of Vasant Manga Nikumba and Others Vs. Baburao Bhikanna Naidu (supra), wherein the Hon 'ble Supreme Court has held as follows : "4. A reading of Section 133 would clearly indicate that the Executive Magistrate has been empowered, on receiving a report of the police officer or other information and on taking such evidence as he thinks fit that any building, tent or structure is in such a condition that, due to failure to remove, disrepair, or without support 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 he is empowered to specify the time to remove, repair or provide support to such building, tent or structure or tree. Two options are open to the Executive Magistrate on considering whether structure, building etc. is in such a dilapidated condition which requires to be demolished immediately which brooks no delay to avert danger to the life and property of the neighbourhood or passers-by unless they could be suitably repaired or supported so as to avert danger to the public or have it removed, etc. The condition precedent to exercise the power under Section 133 is the imminent danger to the property and consequential nuisance to the public. The condition precedent to exercise the power under Section 133 is the imminent danger to the property and consequential nuisance to the public. The removal of the building is so urgently required as it is likely to fall and cause injury to persons living or carrying on business in the neighbourhood or passers-by. The nuisance is the concomitant act resulting in danger to the life or property due to likely collapse etc. The dangerous condition of the building is in praesenti but not in future. The section is limited to injuries likely to be caused to the passers-by or persons living or carrying on business in the neighbourhood. Each case has to be considered in the light of the facts and circumstances obtained in each case. 5.In T.K.S.M. Kalyanasundaram Vs. Kalyani Ammal (1975) 2 MLJ 93 (Mad), the Madras High Court held that the alleged nuisance would have been in existence for a long period. The circumstance and the evidence in that case did not prove that an urgency existed warranting the taking of action under Section 133. No action can be taken under this section where the obstruction or nuisance has been in existence for a long period and the only remedy open to the aggrieved party was to move the civil court. It was also held that Section 133 is attracted only in cases of emergency and immediate danger to the health or physical comfort of the community. Accordingly on the facts in that case, it was held that there was no immediate danger or emergency for the removal of the structure offending in that case. It is also settled law that recourse to Section 133 could not be a substitute for the civil proceedings and the parties should have recourse to the civil remedy available and should not be encourse (sic encouraged) to taking recourse to the provisions of Section 133 of the Code. " 16. In the said judgment, it is also emphasized that the power under Section 133 of the Cr.P.C. has to be exercised judiciously and that it is not intended to settle private disputes or become a substitute to settle civil disputes and that the proceeding under Section 133 of the Cr.P.C. is held to be more in the nature of civil proceedings of a summary nature. In the light of the clear position of law laid down by the Hon 'ble Supreme Court, it is found that the judgments relied upon by the rival parties, pronounced by this Court and other High Courts, merely reiterate the said position and therefore, each judgment has not been individually discussed. 17. The learned counsel appearing for the applicant, as noted above, has emphasized on the fact that in the present case, the respondent No.2 is admittedly the owner of the structure, wherein the applicants were the tenants. On this basis, it is contended that a private dispute of civil nature was deliberately sought to be brought within the purview of Section 133 of the Cr.P.C., which was impermissible and that this aspect was not appreciated by the respondent No.1 - Tahsildar. The contention appears to be that the very exercise of jurisdiction by respondent No.1 - Tahsildar in the present case was erroneous and that, therefore, the impugned orders deserve to be set aside. It is also contended that although parts of the structure were in a dilapidated condition, the applicants were using some parts of the structure and that the initiation of proceeding under Section 133 of the Cr.P.C. was nothing but an attempt by the respondent No.3 to evict them from the structure. 18. While considering whether in the facts of the present case, the respondent No.1 - Tahsildar exercised power and jurisdiction as per law, it cannot be said that merely because the respondent No.3 is the owner of the structure and the applicants claimed to be the tenants therein, this fact alone would colour the case in such a manner that the respondent No.1 - Tahsildar would cease to have jurisdiction under Section 133 of the Cr.P.C. As per the law laid down by the Hon 'ble Supreme Court in the above quoted judgments, the power under Section 133 of the Cr.P.C. has to be exercised wherever there is a situation of a building or a structure being in a condition that it is likely to fall and thereby cause injury to persons and removal of such structure becomes necessary. 19. If such conditions are found, the competent authority under Section 133 of the Cr.P.C. cannot be prevented from exercising its power, merely because the effect of exercise of such power would be on the private parties concerned with the building or structure. 20. 19. If such conditions are found, the competent authority under Section 133 of the Cr.P.C. cannot be prevented from exercising its power, merely because the effect of exercise of such power would be on the private parties concerned with the building or structure. 20. In this light, the facts of the present case need to be appreciated. The material on record shows that the respondent No.2 - Municipal Council through its Chief Officer issued a notice dated 27/10/2010 (the document in question also shows the date 02/08/2011) to the respondent No.3 to demolish the structure in question within seven days as there was possibility of parts of the structure falling, thereby causing loss of life and financial loss. There is a reference to a spot inspection report dated 23/2/2011, prepared by the Engineer of respondent No.2 - Municipal Council, recording the manner in which parts of the structure in possession of the applicants were in dilapidated condition and some parts were broken and they had fallen of. This was accompanied by a map of the structure. On 24/02/2011, another notice, stated to be the final notice, came to be issued by the Chief Officer of the respondent No.2 - Municipal Council to the respondent No.3, asking the said respondent to demolish the structure within seven days. Thereafter, on 23/06/2011, the respondent No.2 - Municipal Council through its Chief Officer issued a third notice, not only to the respondent No.3, but also to the applicants stating that there was every possibility of loss of life, as the structure had become dangerous. 21. It is in this backdrop that on 02/08/2011, the respondent No.3 applied before the respondent No.1 - Tahsildar, seeking permission to demolish the structure. As noted above, initially the respondent No.1 - Tahsildar allowed the application, but the same was set aside by the Sessions Court and the matter was remanded to the said respondent. On 07/02/2015, a detailed spot inspection was carried out and the report recorded the condition of the structure in question. A map was prepared and it was submitted along with the said report dated 07/02/2015, before the respondent No.1 - Tahsildar. 22. A perusal of the report shows that the spot inspection was carried out on 07/02/2015 at 11:30 AM in the presence of the applicants, respondent No.3, the NaibTahsildar and Engineer of the respondent No.2 - Municipal Council. A map was prepared and it was submitted along with the said report dated 07/02/2015, before the respondent No.1 - Tahsildar. 22. A perusal of the report shows that the spot inspection was carried out on 07/02/2015 at 11:30 AM in the presence of the applicants, respondent No.3, the NaibTahsildar and Engineer of the respondent No.2 - Municipal Council. The signatures of the applicants are found on the said report and it is an admitted position that the spot inspection was carried out in their presence. The report recorded in detail as to how various portions of the said property had become completely dilapidated and some portions had fallen of, due to which they had been vacated. There was statement in detail in the said report about the manner in which the walls had given way and that the structure had become completely useless and parts of the structure appeared to be on the verge of falling off. It was recorded that the life of the structure was over. It was also found from the report that the structure was more than 100 years old. It was recorded that the findings of the respondent No.2 - Municipal Council, on the basis of which notices for demolition were issued, were borne out by the inspection of the structure. 23. In the contentions raised before the respondent No.1 - Tahsildar, it was merely stated on behalf of the applicants that they did not agree with the contents of the report. In fact, while appending their signatures on the spot inspection report, the applicants simply stated that the contents of the report were not acceptable to them. Apart from this, nothing much was stated on behalf of the applicants. The respondent No.1 - Tahsildar took into consideration the spot inspection report, the map filed therewith and the contentions of the rival parties. After giving proper opportunity of hearing to the concerned parties, by the impugned order dated 18/07/2016, the respondent No.1 - Tahsildar exercised power under Section 133 of the Cr.P.C. to direct removal of the structure. As noted above, the revision application filed by the applicants was dismissed, as the Sessions Court agreed with the findings of the respondent No.1 - Tahsildar. 24. This Court has considered the material on record. There are photographs placed on record by the applicants as well as respondent No.3. As noted above, the revision application filed by the applicants was dismissed, as the Sessions Court agreed with the findings of the respondent No.1 - Tahsildar. 24. This Court has considered the material on record. There are photographs placed on record by the applicants as well as respondent No.3. The photographs placed on record by the respondent No.3 have not been denied by the applicants. A bare perusal of the photographs shows that the structure in question is absolutely dilapidated and in an unusable condition. Parts of the structure have fallen off with debris strewn around. The contents of the aforesaid spot inspection report dated 07/02/2015, show that the structure was in this condition at the time of the said spot inspection. In fact, the earlier spot inspection report of the year 2011 also makes similar observations. This Court is of the opinion that merely because the applicants happened to be tenants in the said structure, of which the respondent No.3 is landlord, it cannot be said that in the present case the respondent No.1 - Tahsildar could not have exercised power under Section 133 of the Cr.P.C. Even though, the consequence of removal / demolition of the structure in question would mean dispossession of the applicants, merely for that reason it cannot be said that in the present case there was a private and civil dispute, in respect of which respondent No.1 - Tahsildar could not have exercised power under Section 133 of the Cr.P.C. 25. This Court is of the opinion that the material on record was sufficient for the respondent No.1 - Tahsildar to have exercised power directing removal / demolition of the structure in question and that the Sessions Court was justified in dismissing the revision application of the applicants. The emphasis placed on behalf of the applicants on the summary nature of proceedings and the claim that since the first notice for demolition in the present case was issued as far back as in 2011, can be of no consequence, because mere pendency of the proceedings and the fact that it took a long time for it to reach this Court cannot inure to the benefit of the applicants. The first spot inspection report of the Engineer of the respondent No. 2 Municipal Council of the year 2011, as well as detailed spot inspection report dated 07/02/2015, prepared in the presence of the applicants sufficiently demonstrated that the structure in question was indeed in a condition that it was likely to fall and to cause injury to persons, thereby justifying the order of its removal / demolition by the respondent No.1 - Tahsildar. Once the conditions precedent for exercise of the summary power under Section 133 of the Cr.P.C. are found to be existing on facts, it cannot be said that the competent authority i.e. the Tahsildar can be prohibited from exercising such power merely because private parties are also involved and the consequence of exercise of such power would result in dispossession of one of the parties. The law laid down by the Hon 'ble Supreme Court in this context is clear and it is obvious that application of the law will depend on the facts and circumstances of each case. 26. On the basis of the material on record, this Court is convinced that the respondent No.1 - Tahsildar correctly exercised power under Section 133 of the Cr.P.C. by ordering removal / demolition of the structure in question. Accordingly, the present application is found to be without any merit and hence, it is dismissed. Needless to say, the interim order stands vacated.