Gajraj Singh vs Naseer Ahmad and Another

K.N. Goyal, J.—This is a petition u/s 482 Code of Criminal Procedure. The petitioner is tenant of a building situate in Lucknow Cantonment. The landlords have initiated proceedings u/s 135(i)(d) Code of Criminal Procedure for demolition of house on the ground that the building 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. These proceedings" are pending in the Court of the Additional City Magistrate IIIrd Lucknow. The petitioner challenges the proceedings on the ground that action could have been taken for demolition of the building only u/s 126 of the Cantonments Act.

It has been contended that u/s 5 Code of Criminal Procedure the provision of the Cantonments Act should override the provisions of Section 133 Code of Criminal Procedure.

Section 126 of the Cantonments Act reads as follows:

Where in a cantonment any building, or wall, or anything affixed thereto, or any well, tank, reservoir, pool, depression or excavation or any bank or tree is in the opinion of the Board in a runious state or for want of sufficient repairs, protection or enclosure, a nuisance or dangerous to persons passing by or dwelling or working in the neighbourhood, the Board by notice in writing may require the owner or part or person claiming to be the owner or part owner thereof, or failing any of them, the occupier thereof to remove the same or may require him to repair or to protect or to enclose the same in such manner as it thinks necessary and if the danger is in the opinion of the Board imminent, it shall forthwith take such steps as it thinks necessary to avert the same.

Sri R.K. Agarwal who has appeared on behalf of the petitioner is No. doubt right in contending that the Cantonments Act is a "special law" within the meaning of Section 5 Code of Criminal Procedure. He is also right in contending that the power of the Cantoment Board u/s 126 is similar to the power of the Executive Magistrate u/s 133 Code of Criminal Procedure.

The question, however, arises whether Section 9 Code of Criminal Procedure has the effect canvassed on behalf of the petitioner. Section 5 Code of Criminal Procedure reads as follows:

Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force." The only effect of Section 5 Code of Criminal Procedure is that the provisions of Section 126 Cantonments Act shall remain unaffected. In other words, despite the provisions of Section 133 Code of Criminal Procedure the Cantonment Board can also take action u/s 126 of the Cantonments Act. It cannot, however, be contended further that because of Section 5 and because of the existence, of the power of the Cantonment Board u/s 126 Cantonments Act the power of the Executive Magistrate u/s 133 Code of Criminal Procedure is taken away. Both the powers can co-exist, and there is No. repugnancy between the two provisions.

As this if the only point urged against the validity of the proceedings u/s 133 Code of Criminal Procedure, I find No. merits in this petition which is hereby dismissed is limine.