Ghulam Rasool Riaz Ahmad vs State

P.N. Bakshi, J.—Premises No. 97/155 situated at Kallumal Street, Beconganj, Kanpur was owned by Sayeed Ahmad and others It was tenanted since 1955 by Ghulam Rasool and others. On October 1, 1967 Shrimati Sayeedan purchased the property for Rs. 25,000/-. It appears that on 13th June 1972 an application was filed by Shrimati Sayeedan before the City Magistrate, Kanpur to the effect that the premises in question was dangerous and requires demolition. The City Magistrate Kanpur passed a conditional order u/s 133 Code of Criminal Procedure on 28th June 1972. On 10th July 1972 objections were filed by the applicant and others. Parties led evidence and produced documents in support of their respective claims. On 11-2-1974 the City Magistrate Kanpur passed the impugned order. Aggrieved thereby a revision was filed before the Sessions Judge, Kanpur which was dismissed on 15th May 1974. Hence this revision.

I have heard counsel for the parties and have also perused the impugned orders. Both the parties have argued at length. They have also referred to documents on the record. Counsel for the applicant has submitted that the recourse to proceedings u/s 133(d) of the Code of Criminal Procedure is, in the circumstances of the case, not warranted by law. It is not disputed that the applicant is a tenant of the back portion of the premises in question in which there are several other tenants since 1955. It is also admitted to the parties that Shrimati Sayeedan is the transferee of the property in question which she took by sale on 7th October 1967. Both the parties have filed reports of Engineers which are conflicting with regard to the condition of the building. I find from the impugned order of the Magistrate that he was of the opinion that the condition of the building was not such for which there might be immediate danger The order of the Magistrate indicates further that two mansions have passed since June 1972 but no unhappy incident is reported to have taken place so far. The Magistrate has further observed that the present landlords appear to be in a mood of total eviction of the tenants and that is why they have also moved an application u/s 21 of the Rent Control and Eviction Act for the release of the property in their favor for demolition and reconstruction of the building. After having arrived at these findings the learned Magistrate confirmed the notice issued by him u/s 133 Code of Criminal Procedure. He was of the opinion that total demolition of the entire building was not called for and that the process of demolition and construction shall be carried out bit by bit in such a way that tenants are not put to inconvenience. This process would be carried out with mutual consent of the parties and with the approval of the local authority within three months. If parties do not agree, necessary action be taken. Section 133(1)(d) runs as follows:

133 (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 neighbourhood or passing by, and that in consequence the removal, repair of support of such building, tent or structure, or the removal of support of such tree, is necessary.

A bare reading of this section indicates that the danger contemplated therein refers to the period in presenti and not in future. If a structure or a building is likely to fall and thereby causes injury to persons living in the neighbourhood or to the passerby, the City Magistrate is authorised to take action u/s 133 Code of Criminal Procedure for removal of the structure. As I have mentioned above the Magistrate has found, as a fact, that there is absence of any immediate danger of the property falling down. He has also observed that two mansoons have gone by and no untoward incident had taken place. It would not be out of place to take note of the fact that now four more mansoons have passed since the impugned order of the Magistrate was passed on 11-2-1974, yet nothing untoward has happened. This fact, coupled with the finding of the Magistrate indicates that there is no immediate danger of the collapse of the building, thereby rendering it unsafe to the public or the passerby.

Moreover, the landlord has already taken steps in the civil court u/s 21 of the Rent Control and Eviction Act, where he can be awarded relief, if the circumstances of the case justify it. In these circumstances criminal courts cannot be pressed into action to give relief to the applicant by taking proceedings u/s 133 Code of Criminal Procedure. Proceedings u/s 133 Code of Criminal Procedure are not intended to settle private disputes between persons wishing to enforce private rights. They must go to the appropriate civil court for this purpose. It has been held in Ram Dayal Misra v. Mt. Jagdamba Devi AIR 1947 All. 443, that "the proceedings u/s 133 Code of Criminal Procedure 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. If a person has any private right which he wishes to enforce, he should take his troubles to the civil court."

The same view has been again affirmed in Lalji and Others Vs. Emperor, . In this case Justice Allsop was of the view that "Criminal cases and cases under the Code of Criminal Procedure are not contests between private persons. The proceedings u/s 133 are not intended to settle private dispute between two members of the public....

Learned Counsel for the applicant has also cited a decision of Harries, J. in Shri Ram Vs. Emperor, , in which he has held that "Section 133 can have no application to something which may become a nuisance, that is to a potential nuisance, but applies only where the nuisance is in existence in a way, river or channel which is or may be lawfully used by the public and which is in existence in a public place." This also lend supports to the view that the action contemplated under this section is concerned with the existing cause of action, whether it be in the form of an existing nuisance or in the form of danger from an existing danger to a building. The cause of action must exist in presenti and not at a future date.

The idea behind Section 133 Code of Criminal Procedure is that the danger should be such that if the Magistrate does not take immediate action and directs the public to take ordinary recourse of law, irreparable damage would ensue. Such are not the facts in the instant case. Proceedings under the Rent Control and Eviction Act are already in progress and the applicant has also a right to pursue his remedy in a civil court, in the absence of any immediate danger as found by the Magistrate, recourse cannot be had to Section 133 Code of Criminal Procedure. As a matter of fact, a perusal of the operative portion of the order of the Magistrate dated 11-2-1974 itself amounts to a type of civil arrangement between the parties to be enforced under the law for demolition and reconstruction of the premises. The order is vague and can lead to several difficulties and complications in its execution. Such an order is not contemplated by the provisions of Section 133 Code of Criminal Procedure.

For the reasons given above, I am of the opinion that this revision succeed and is hereby allowed. The impugned order passed by the Magistrate on 11-2-1974 and confirmed by the Sessions Judge, Kanpur on 15th May 1974 are hereby set aside.