S.B. SHUKRE, J.

1. HEARD.

2. Rule. Rule made returnable forthwith. Heard finally by consent.

3. The order dated 6th June, 2017, passed under Section 133 of the Code of Criminal Procedure by the Sub-Divisional Magistrate, Akola is under challenge in this application. This order directs the applicant to demolish the disputed structure occupied by the applicant as a permissive user of the landlord i. e. respondent No. 1, within ten days from the date of order, failing which, the structure would be brought down forcibly.

4. On going through the impugned order, I find that it does not comply with the mandatory requirement of Section 133 of the Criminal Procedure Code as rightly submitted by the learned counsel for the applicant. Section 133(1) Cr. P. C requires that first a conditional order must be passed and then the final order if the need arises has to be passed by the Executive Magistrate invested with the power under this Section. This is also the view taken by the learned Single Judge of this Court way back in the year 1981 in the case of Sudhakar Vithalrao Welaniwar vs. Liberty Services and others, (1983) MhLJ 676. In the present case no such conditional order has been passed and on this ground alone, the impugned order cannot be sustained in the eye of law.

5. There is also a fundamental error appearing in the impugned order. The impugned order relies upon the report of the Commissioner, Municipal Corporation, Akola dated 23. 5. 2017. This report, has been interpreted by the learned Sub-Divisional Magistrate to suit his convenience. The report clearly says that the structure, which is a tin shed and which is in dispute in the present case, need not be demolished because it is only a tin structure. The report further says that if the other structure adjoining the tin shed are to be demolished, there would be danger being caused to the applicant's structure as well as the applicant's person. This report nowhere says that the dilapidated portion of the structure adjoining the tin shed under occupation of the applicant is in such a condition that if it is not brought down immediately, there will be any imminent danger to the members of public. This report also says that the dispute between the applicant and the non-applicant No. 1 is of civil nature and, therefore, the Corporation is not concerned with it. This report, has been misinterpreted and misunderstood by the learned Sub-Divisional Magistrate. The learned Sub-Divisional Magistrate has read into this report something which is not there. This is the perversity committed by the learned Sub-Divisional Magistrate while passing the impugned order.

6. The learned Sub-Divisional Magistrate has also relied upon the reports of two private consultants, namely, Akar Consultancy Services and one expert K. S. Morgavkar. The copies of reports of these two experts are forming part of the record. They do not bear signatures of the applicant. No evidence has been led before the learned Magistrate to show that at the time when these experts visited the disputed structure, the applicant was present or the applicant deliberately chose to remain absent or the applicant refused to sign the reports. It is the contention of the learned counsel for the applicant that there was no spot inspection taken by these experts and even if it was taken, the applicant was not aware of the date of the inspection. This contention should have been considered by the learned Sub-Divisional Magistrate, but it appears that he has not. The learned Sub-Divisional Magistrate has also not considered the material fact that the signatures of the applicants are not found on the reports of two experts on which the learned Sub-Divisional Magistrate has placed his reliance. In these circumstances, the learned Sub-Divisional Magistrate could not have placed any reliance upon these reports.

7. Then, there is also involved in this case the question of urgency. Power under Section 133 exists for the purpose of preventing i