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High Court Of Allahabad
B.K.Rathi, J.
Geeta Devi
Vs.
State Of U P
Decided on: Nov 11, 1999
CRIMINAL PROCEDURE CODE, 1973 - SECTION 133 - CONDITIONAL ORDER FOR REMOVAL OF NUISANCE - INTERPRETATION AND APPLICATION - LANDLORD'S ATTEMPT TO EVICT TENANTS - ALTERNATIVE REMEDY UNDER U.P. ACT NO. XIII OF 1972 - NO BAR TO ACTION UNDER SECTION 133, CR.P.C. - INHERENT POWERS UNDER SECTION 482, CR.P.C. - EXERCISE WITH CIRCUMSPECTION.
Fact of the Case:
Petitioners, tenants of a dilapidated building, challenged a conditional order issued by a Magistrate under Section 133(1) of the Code of Criminal Procedure (Cr.P.C.) for the removal of the structure due to its dangerous condition. The petitioners argued that the order was illegal and that the landlord should have sought relief under the U.P. Act No. XIII of 1972 instead.
Finding of the Court:
The court held that the Magistrate's order was valid and in accordance with Section 133(1)(d) of the Cr.P.C., which empowers a Magistrate to issue such an order upon receiving a report from a police officer or other information indicating that a building is in danger of collapsing and causing injury or damage to persons or property.
Issues: 1. Whether the Magistrate's order under Section 133(1) of the Cr.P.C. was legal and justified. 2. Whether the landlord's alternative remedy under Section 21(1)(b) of the U.P. Act No. XIII of 1972 barred the Magistrate's action under Section 133 of the Cr.P.C. 3. Whether the inherent powers under Section 482 of the Cr.P.C. should be exercised to quash the Magistrate's order.
Ratio Decidendi: 1. The court interpreted Section 133(1) of the Cr.P.C. and held that a Magistrate can issue a conditional order for the removal of a nuisance, including a dilapidated building, upon receiving a report from a police officer or other information, and after taking necessary evidence. 2. The court held that the existence of an alternative remedy under the U.P. Act No. XIII of 1972 does not bar the Magistrate's action under Section 133 of the Cr.P.C., as the latter provides a speedy and effective mechanism to address immediate danger to public safety. 3. The court emphasized that the inherent powers under Section 482 of the Cr.P.C. should be exercised sparingly and with circumspection, and not according to whim or caprice, and that the present case did not warrant the exercise of such powers.
Final Decision: The court dismissed the petition, holding that the Magistrate's order was valid and that the petitioners should have appeared before the Magistrate to file objections and produce evidence, rather than seeking to quash the proceedings at an early stage.
B.K. Rathi, J.
This is a petition under Section 482, Cr. P. C. with a request to quash the proceedings of Case No. 13 of 1997, State v. Shakuntala Devi, pending in the Court of City Magistrate, Kanpur Nagar under Section 133, Cr. P. C.
2. THE petitioners have alleged that they are tenants of different shops of premises No. 32/80 Mani Ram Bagiya, Kanpur Nagar of which opposite party No. 2 was the land ford and owner. That opposite party No. 2 has transferred the property in favour of opposite parties No. 3 to 7 on 24-9-98. that opposite parties are looking out some way to evict the petitioners. That instead of invoking the provisions of U. P. Act No. XIII of 1972, on the other hand, opposite party No. 2 filed an application under Section 133, Cr. P. C. before the City Magistrate, Kanpur Nagar, on which he has passed a conditional order for removal of the structure under Section 133, Cr. P. C.
The conditional order has been challenged by the learned counsel on two grounds. Firstly, that it is not a legal order and secondly, that the opposite parties should have taken recourse of the provisions of Section 21 of U. P. Act No. XIII of 1972 and cannot be permitted to get rid of the tenants in this manner.
3. I have heard Sri Vishnu Gupta, learned counsel for the petitioners and Sri R. K. Jain, Senior counsel for opposite par ties No. 2 to 7 and the A. G. A. and have gone through the record.
4. THE impugned order under Section 133 (1), Cr. P. C. starting proceedings is Annexure-C. A-3. It is mentioned in the order that the Officer In charge of the Police Station has submitted report on 30-7-97 that premises No. 32/30 in dispute is very old and is in dilapidated condition. Its upper portion has already fallen. THE shops outside the building may fall at any time, which may result in taking the life and destroy the property of general public. He has, therefore, directed the petitioners to show-cause on 29-1-98 as to why the order may not be passed for demolition.
The petitioners have not file any objection to this show-cause notice and have approached this Court to quash the proceedings under Section 133, Cr. P. C. It is contended that the order has been passed on the basis of the police report and the learned Magistrate has not recorded the satisfaction. This argument of the learned counsel cannot be accepted in view of the provisions of Section 133 (1), Cr. P. C. The order can be passed by the Magistrate on receiving the report of the police officer or other information and on taking such evidence, if any, as he considers necessary. Before passing the order, satisfaction is required to be recorded under Section 145, Cr. P. C. , but contrary to it, the language used in Section 133, Cr. P. C. is different and therefore, the argument that the learned Magistrate should have record satisfaction, is not correct. The order under Section 133, Cr. PC." can be passed on the basis of police report above.
5. THE learned Magistrate has mentioned that the premises is in such a condition that it likely to fall at any time and may cause injury to the persons and also to the property. This order is in accordance with Clause (d) of Section 133 (1), Cr. P. C. which reads as follows: "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- (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 neighborhood 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.
6. THE learned counsel for the petitioners in support of the argument has also refe
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