Mirza Moin Beg vs State of U.P. and Another

Rajeshwar Singh, J.—This is a petition u/s 482 Code of Criminal Procedure arising out of the proceedings u/s 133 Code of Civil Procedure.

The Magistrate issued a conditional order u/s 133 Code of Criminal Procedure on 30th July, 1988 (Annexure-3). He said that certain building was in a dilapidated condition and asked the Petitioner to demolish it in 1st days or show cause on the date fixed as to why the order should not be made absolute.

On the date fixed, the Magistrate took up the matter and he said that the opposite parties had n t said anything, that is in other words they had not shown any cause, so they were directed to get one Verandh repaired immediately and if it was not done in 15 days action would be taken against the opposite party No. 1 u/s 188 IPC. This order was made'' absolute. Feeling aggrieved the opposite parties against whom conditional order was made absolute has filed this petition u/s 482 Code of Civil Procedure.

The Petitioner and the learned Government Advocate have been heard.

The relevant portion of Section 133 Code of Criminal Procedure is that where a Magistrate considers that any 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 and that in consequence, the removal of such building is necessary such Magistrate may make a conditional order requiring the person possessing or controlling such building within a time to be fixed in the order to remove such building or to repair it. In the present case the Magistrate passed the conditional order asking the owner of the building to remove it. That much was all right.

That next step is to be found in Section 136 Code of Criminal Procedure. It says that if such person does not perform such act or appear and show cause, he shall be liable to the penalty prescribed in that behalf in Section 188 of the Indian Penal Code and the order shall be made absolute. This section firstly provides for penalty given in Section 188 IPC and it authorises the Magistrate to make the order absolute. It is to be noted that it does not authorize the Magistrate to vary the order.

Sections 137 and 138 Code of Criminal Procedure apply only when a person appears and shows cause. In the case before me, it has been said in the second order of the Magistrate that the opposite parties did not say anything about the preliminary order that is the opposite parties did not show cause. So only Section 136 Code of Criminal Procedure was applicable in this case and the Magistrate could take action only u/s 136 Code of Criminal Procedure. Action that could be taken u/s 136 Code of Criminal Procedure was that the order could be made absolute, he could not take any other action.

In the case before me, the Magistrate did not make the conditional order that he issued earlier absolute, rather he took the representations of some persons into consideration, varied the order and made an order of repair instead of order of removal. This was not possible when the Magistrate asked the owner to demolish the building, where the owner had no objection to it he could neglect to appear before the Magistrate. But if the learned Magistrate instead making that order absolute to which the owner had no objection and on account of which he did not appear, passes a different order that will be against the natural justice, as well as against provisions of Section 136 Code of Civil Procedure.

The result is that the order passed by the Magistrate will have to be quashed.

The order dated 12-8-1988 passed by the Magistrate is quashed but this will not prevent the Magistrate from proceeding afresh in accordance with law.