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2023 DIGILAW 374 (MP)

Chandrawati Devi v. State of Madhya Pradesh

2023-03-16

ANJULI PALO

body2023
JUDGMENT Anjuli Palo, J. - These petitions arise out of common order, therefore, they are being decided together by this common order. However, the facts narrated in M.Cr.C. No. 3317 of 2019 are being adumbrated herein 2. The applicants have filed these petitions invoking the extraordinary jurisdiction of this Court under Section 482 of Cr.P.C. to set aside the order dated 14.1.2019 passed by Special Sessions Judge, Shahdol in Criminal Revision No. 1 of 2016 whereby the revision filed by the applicants has been dismissed and the order dated 23.11.2015 passed by Sub-Divisional Magistrate Sohagpur, Shahdol in Case No. 238 of 1999 has been affirmed. 3. Succinctly stated facts of the case are that respondent Nos. 2 to 8 are the owners and landlord of a house situated at Ward No. 26 and the applicants are the tenants of two shops in the house in dispute. Respondent Nos. 2 to 8 requested to the applicants to vacate the disputed shops on the ground that the house is very old and in a dilapidated condition and has become unsafe for human habitation but the applicants declined to vacate the shop, hence respondent Nos. 2 to 8/complainants filed proceedings (Annexure A-1) under Section 133 of Cr.P.C. to get the said accommodation vacated. 4. The applicants filed their reply inter alia contending that the complainants want to sell the house and have entered into agreements to that effect, therefore, they filed the complaint to get the accommodation vacated. It was also contended that the house in dispute is in good condition and it is not required to be demolished. 5. The SDM called a report from the Police Department regarding status of the house and on the basis of said report, passed an order on 15.2.2010 directing the applicants to vacate the accommodation and also directed to demolish the same. Being aggrieved thereby the applicants preferred a Criminal Revision No. 20 of 2010, which was dismissed vide order dated 12.3.2010 and the order passed by the SDM was upheld. 6. Being aggrieved thereby the applicants preferred a Criminal Revision No. 20 of 2010, which was dismissed vide order dated 12.3.2010 and the order passed by the SDM was upheld. 6. Challenging the said order, the applicants filed M.Cr.C. No. 2474 of 2010 before this Court, which was decided vide order (Annexure A-4) dated 29.9.2010 wherein the orders passed by the Courts below were set aside and the matter was remitted back to the SDM with direction to call for a new report from the office of Executive Engineer, Public Works Department and the Executive Engineer, Rural Engineering Services (for short RES) with regard to the condition of the disputed house. It was observed that the SDM formed an opinion without examining Shri B.P. Verma and Police Officials. The opinion seems to have been formed on the basis of the report and the letter of Chief Municipal Officer dated 22.1.2009 and Police Report dated 5.8.2008 that too without cross-examining such witnesses. 7. After remand of the case, the SDM, Sohagpur called for a report from Executive Engineer and Officers of RES in compliance of the order dated 29.9.2010 passed by this Court in M.Cr.C. No. 2474 of 2010. The Executive Engineer and Officers of RES submitted a joint enquiry report on 16.1.2012 and on the basis of the said report, the SDM passed the order on 23.11.2015 directing to demolish the disputed house. 8. Being aggrieved by the order dated 23.11.2015, the applicants prerferred a Criminal Revision No. 1 of 2016 on the ground that the dispute between the parties is of civil nature and, therefore, Section 133 of Cr.P.C. is not applicable in this case. It was further stated that during pendency of dispute, some tenants have died and proceedings were initiated against their legal heirs whereas under Section 141(2) of Cr.P.C. the SDM is not competent to do so. It was further submitted that the application under Section 133 of Cr.P.C. was filed on 3.2.1997 and since then 19 years have elapsed but no damage has been caused to the disputed house, therefore, the SDM has arrived at a wrong conclusion. 9. The aforesaid revision has been dismissed by the Special Judge on the ground that according to the enquiry reports submitted by the SHO, Chief Municipal Officer and Executive Engineer, the disputed house is about 100 years old and it is partially damaged. 9. The aforesaid revision has been dismissed by the Special Judge on the ground that according to the enquiry reports submitted by the SHO, Chief Municipal Officer and Executive Engineer, the disputed house is about 100 years old and it is partially damaged. According to the enquiry reports and statements available on record the disputed house is in dilapidated condition and it may collapse, which may create public nuisance. 10. I have heard learned counsel for the parties and gone through the orders passed by the SDM as well as the revisional Court. After remand of the case by this Court, the SDM called reports from Executive Engineer and Officers of RES in compliance of the order dated 29.9.2010 passed by this Court in M.Cr.C. No. 2474 of 2010. The Executive Engineer and Officers of RES submitted a joint enquiry report on 16.1.2012 and on the basis of the said report, the SDM passed the order on 23.11.2015 directing to demolish the disputed house. The SDM concluded that the disputed house is an old one and is in a dilapidated condition and, therefore, need to be removed and the structure needs demolition to avoid fatal accidents in future. 11. The Supreme Court in the case of Vasant Manga Nikumba and others Vs. Baburao Bhikanna Naidu (deceased) by LRs and another reported in 1995 Supp (4) SCC 54 has considered the object and purpose of Section 133 of Cr.P.C. and observed in Paragraphs 3, 4 & 5 as under:- " 3 . Nuisance is an inconvenience materially interferes with the ordinary physical comfort of human existence. it is not capable of precise definition. It may be public or private nuisance. As defined in Section 268 IPC, public nuisance is an oftence against public either by doing a thing which tends to the annoyance of the whole community in general or by neglect 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 the property in the vicinity. On the alternative it causes inujry, obstruction, danger or annoyance to persons who may have occasion to use public right. it is the quantum of annoyance or discomfort in contra distinction to private nuisance which affects an individual is the decisive factor. On the alternative it causes inujry, obstruction, danger or annoyance to persons who may have occasion to use public right. it is the quantum of annoyance or discomfort in contra distinction to private nuisance which affects an individual is the decisive factor. The object and public purpose behind Section 133 is to prevent public nuisance that if the Magistrate fails to take immediate recourse to Section 133 irreparable damage would be done to the public. The exercise of the power should be one of judicious discretions objectively exercised on pragmatic consideration of the given facts and circumstances from evidence on record. The proceedings under Section 133 is not intended to settle private disputes or a substitute to settle civil disputes though the proceeding under Section 133 is more in the nature of civil proceedings in a summary nature. 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 i s 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 passer-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 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 passer-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 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 v. Kalyani Ammal - 1975 CriLJ 1717, 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 any 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." 12. Similar view has been taken by the Supreme Court in the case of Suhel Khan Khudyar Khan and another Vs. State of Maharashtra and others - (2009) 5 SCC 586 referring the case of Vasant Manga Nikumba and others Vs. Baburao Bhikanna Naidu (deceased) by LRs and another (supra). 13. In the present cases, the application under Section 133 of Cr.P.C. was filed 25 years ago. I have seen the photographs of the building, which are placed on record. State of Maharashtra and others - (2009) 5 SCC 586 referring the case of Vasant Manga Nikumba and others Vs. Baburao Bhikanna Naidu (deceased) by LRs and another (supra). 13. In the present cases, the application under Section 133 of Cr.P.C. was filed 25 years ago. I have seen the photographs of the building, which are placed on record. On a consideration of the matter, it appears that it is not so imminently dangerous as to require the building to be demolished immediately exercising the power under Section 133 of Cr.P.C. There is no danger to the customers of the shop also as the repair work has already been carried out in the said shops. It also appears that the shops are sought to be vacated behind the curtains. 14. Thus, in view of the aforesaid discussion and in the background of the legal principles set out by the Supreme Court in the cases of Vasant Manga Nikumba and others Vs. Baburao Bhikanna Naidu (deceased) by LRs and another (supra) and Suhel Khan Khudyar Khan and another Vs. State of Maharashtra and others (supra), these petitions are allowed. The order dated 14.1.2019 passed by Special Sessions Judge, Shahdol in Criminal Revision No. 1 of 2016 and the order dated 23.11.2015 passed by Sub-Divisional Magistrate Sohagpur, Shahdol in Case No. 238 of 1999 are hereby set aside.