Uttarakhand High Court
Abdul Hamid vs State Of Uttarakhand And Others on 12 February, 2018
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Miscellaneous Application No. 342 of 2016
(Under Section 482 CrPC)
Shri Abdul Hamid .....Applicant/Petitioner
Versus
State of Uttarakhand & Others .......Respondents
Present:- Mr. Vikas Bahuguna, Advocate, for the applicant/petitioner.
Ms. Mamta Joshi, Brief Holder, for the State/respondent no. 1.
Mr. Arvind Vashistha, Senior Advocate, assisted by Mr. Imran
Ali Khan, Advocate for the respondents no. 2 and 3.
Hon'ble Sudhanshu Dhulia, J. (Oral)
Applicant before this Court has invoked the inherent and extraordinary jurisdiction of this Court under Section 482 CrPC while challenging the two orders dated 1.8.2014 and 21.3.2016 passed by Learned City Magistrate, Dehradun and Additional Sessions Judge 1st, Dehradun (in revision) respectively, admittedly in a proceeding relating to Section 133 CrPC.
The matter relates to the proceedings under Section 133 CrPC. Admittedly, the present applicant is the tenant of private respondents no. 2 and 3 in their residential accommodation situated at Mohini Road, Dalanwala, Dehradun. According to the applicant, he has been residing in the said accommodation as tenant for the last several years, a fact which is not denied. It is an admitted fact again that earlier the predecessors in interest of the landlords had filed application for the release of the premises, in question, under Section 21(1)(a) and (b) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 in the year 2002, which was dismissed for non-prosecution on 11.4.2007. No effort was made for its restoration. Also, in the year 2002, another suit for rent and eviction was filed by the landlords against 2 the present applicant before the Small Cause Court, which was again dismissed for non-prosecution on 23.5.2007. Again, no effort was made for its restoration.
Much later, however, an application was moved by the landlords before the concerned Magistrate under Section 133 CrPC stating that the house in which the present applicant lives and of which they are the owners and landlords, is in a "dilapidated condition" and is causing public nuisance and it needs immediate repairs and the applicant be therefore evicted. The learned Magistrate called for a report from the relevant police station. That report is on the record in the form of Annexure No. 1 to the rejoinder affidavit which states that there is a dispute between the landlords and the tenant and the applicant is living with his family as tenant and the house is an old construction. However, there is no finding by the investigating team as to whether the house is actually in a dilapidated condition and, more importantly whether its condition is actually a public nuisance or a danger to the public in general particularly for the residents of the neighbourhood! Nevertheless, an order was passed for eviction by the City Magistrate on 1.8.2014. This order was challenged in revision, which was heard by the Additional Sessions Judge 1st, who, vide his judgment and order dated 21.3.2016, has upheld the order of the learned Magistrate holding that the house is in a dilapidated condition, and ordered for the eviction of the tenant. These two orders are under challenge before this Court.
The main contention of the learned Counsel for the applicant is that both the authority as well as the Court below have not appreciated the matter in its true perspective and more importantly they have not done 3 so in the light and scope of Section 133 CrPC. What was necessary to be seen was whether the applicant has caused any "public nuisance" in the neighbourhood and to the public at large. In fact, there is no finding in this regard either by the investigating team or even by any of the Courts below. In fact, it is not a case of public nuisance at all, the Counsel for the petitioner Mr. Vikas Bahuguna would argue. The landlords (private respondents no. 2 and
3) have, in fact, abused the process of Court and have circumvented the process inasmuch as the remedy, if at all, is before the Civil Court, or before the Rent Control Authorities as it is a private dispute between the landlord and the tenant.
Mr. Arvind Vashistha, learned Senior Counsel for the private respondents, on the other hand, would argue that the remedy invoked by the applicant was under
sub-section (d) of Section 133(1) of CrPC and learned Senior Advocate, therefore, would argue that the City Magistrate can take cognizance of the matter in case a building is in such a dilapidated condition, which is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood.
The learned Senior Counsel for the private respondents would also argue that Section 133 CrPC prescribes various contingencies under which powers can be exercised by the Magistrate and one of such conditions is given under Section 133(1)(d) CrPC, which may not exactly be a case for public nuisance, but like the case at hand where the dilapidated building has become dangerous, is also liable to be covered under Section 133(1)(d) CrPC and, therefore, it is wrong to say that the learned Magistrate has no jurisdiction in the matter.4
The crucial question to be determined by this Court in this case therefore is as to what kind of dispute or nuisance, if at all, existed in the present case and whether the authorities or the Courts below have power under Section 133 CrPC to interfere in the matter?
All the relevant facts and circumstances of the case, including the admitted fact that at least on two occasions the landlords had invoked the jurisdiction of the Civil Court for eviction of their tenant, show without doubt that the actual intention of the landlords was the removal of the tenant from the premises, which has admittedly been rented out to the present applicant, who is the tenant in the said premises. For the reasons best known to the landlords (private respondent no. 2 & 3), on both occasions, when the case was dismissed for non- prosecution, no application was moved for the restoration of the case. Quite ingenuously, later an application under Section 133 CrPC was filed and the orders passed therein are presently under challenge before this Court.
I have absolutely no doubt that the remedy invoked under Section 133 CrPC was actually not available to the landlords. The remedy under Section 133 CrPC is available only in case of a public nuisance. Even if the landlord is successful in making out the case that the building, which has been rented out, is in dilapidated condition, yet this itself does not make out a case for interference under Section 133 CrPC. The dilapidated building should also be a cause of "public nuisance".
Hon'ble Apex Court in case of Kachrulal Bhagirath Agrawal and Others v. State of Maharashtra & Others, reported in (2005) 9 SCC 36, has categorically held that "Proceedings under Section 133 are not intended to settle private disputes between different members of the 5 public. They are in fact intended to protect the public as a whole against inconvenience."
Section 133 is a part of Chapter 10 of the Code of Criminal Procedure, 1973, under the following head: "Maintenance of public order and tranquility". This chapter is divided into two parts A and B. Part A is regarding "unlawful assemblies" which has Section 129 to
132. Part B is regarding "public nuisances" which covers Section 133 to Section 146 CrPC. The relevant portion of Section 133 which is under "public nuisances" reads as under:
"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-
(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or
(b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or
(c) that the construction of any building, or, the disposal of any substance, as is likely to 6 occasion conflagration or explosion, should be prevented or stopped; or
(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 or support of such building, tent or structure, or the removal or support of such tree, is necessary; or
(e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or
(f) that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order-
(i)..........
(ii) .........
(iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or
(iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or
(v) ................
7(vi) ...............
(2) ...............
Explanation- A" public place" includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes."
(Emphasis provided) "Public nuisance" is defined under Section 268 IPC which reads as under:
"268. Public nuisance.--A person is guilty of a public nuisance who does any act or is guilty of an illegal omission, which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.
A common nuisance is not excused on the ground that it causes some convenience or advantage."
Removal of public nuisances under Section 133 CrPC would mean removal of nuisances which is to the public at large. The elaboration of such nuisances in clauses (a), (b), (c), (d), (e) and (f) of sub-Section (1) of Section 133 is nothing but the elaboration of different kind of public nuisances. Clause (d) of sub-section (1) of Section 133, inter alia, provides that a building or a structure when is in 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", only then the jurisdiction under Section 133 CrPC can be exercised. The important 8 words here are that a structure or a building is in such a condition that in case it falls, it will cause injury to "persons living or carrying on business in the neighbourhood or passing by". It does not say that it will cause injury to persons living inside that particular building! That would not just be a strained but clearly a wrong interpretation of the provision.
Undoubtedly, therefore, landlords (respondents no. 2 and 3) have no remedy, under Section 133 CrPC and the exercising of these powers is nothing but the abuse of the process of Court. It is a fit case where interference is liable to be made. Simply put, landlords have invoked a remedy under the public law which is not available to them. Both the authority as well as the Court below had no jurisdiction in the matter.
This application under Section 482 CrPC, therefore, is allowed. Impugned orders dated 1.8.2014 and 21.3.2016 passed by Learned City Magistrate, Dehradun and Additional Sessions Judge 1st, Dehradun respectively are hereby set aside.
(Sudhanshu Dhulia, J.) 12.2.2018 Prabodh