L.J Bhatthi (Complaint Case) vs The State Of U.P And Ors. on 3 December, 2013

[Cites 34, Cited by 1]

Allahabad High Court

L.J Bhatthi (Complaint Case) vs The State Of U.P And Ors. on 3 December, 2013

1. By means of the present petition under Section 482 Cr.P.C., the order dated 28.01.2013 passed by Additional City Magistrate-I, Lucknow staying the operation of its own order dated 24.01.2013 passed in Case No.16 of 2013, Virendra Kumar Shukla Vs. State of U.P. and others, under Section 133 of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') was assailed.

2. The order dated 24.1.2013 passed in Case No.16 of 2013, Virendra Kumar Shukla Vs. State of U.P. and others, under Section 133 Cr.P.C by the Additional City Magistrate-I, Lucknow was challenged in the present criminal revision under section 397 Cr.P.C. by Sudhir Sinha and 6 others.

3. The petition under Section 482 Cr.P.C. and the present criminal revision are relating to same proceedings and are related to validity of both the orders, hence, they are being disposed of finally by this common judgment.

4. Brief facts for deciding these two cases are that Virendra Shukla, Advocate moved an application (Annexure No.2 to the petition U/s 482 Cr.P.C.) under Section 133 Cr.P.C. before ACM II, Lucknow for demolition of building owned by Young Man Christian Association of India (for short 'YMCA') situate in Lucknow being in dilapidated condition and amounts to public nuisance to the occupants of the building and passers-by. Shri Shukla has stated therein that he being an Advocate of YMCA used to visit the office situate in the building of YMCA, 13 - Rana Pratap Marg,at Lucknow which is being managed by L.J. Bhatti, Secretary of YMCA. In this application, Lucknow Nagar Nigam, Chief Executive Engineer, PWD Lucknow and L.J. Bhatti being Secretary of YMCA were added as opposite parties. Sub-Divisional Magistrate/ACM-II, Lucknow called for report on the aforesaid application from Station Officer of Police Station Hazratganj, Lucknow, Municipal Corporation, Lucknow and Public Works Department. These reports were filed before the Magistrate by the Station Officer of Police Station Hazratganj, Lucknow, Municipal Corporation, Lucknow and PWD on 16.09.2012, 11.01.2013 and 19.09.2012 respectively. After submission of these reports, the learned Magistrate issued conditional order dated 11.1.2013 under Section 133(1) of Cr.P.C. (Annexure No. 6 to the petition U/s 482 Cr.P.C.) to L.J. Bhatti for demolition of the aforesaid YMCA building till 23.01.2013 or to show cause by 24.01.2013 as to why this order may not be made absolute. In pursuance thereof, a reply dated 16.01.2013 was filed by petitioner L.J. Bhatti admitting all the allegations made in the application and pleaded therein that occupants are not allowing him to demolish the building. He also informed that he shifted his office running in YMCA building to his own house. Thereafter considering the reports and reply submitted by petitioner L.J. Bhatti supported with affidavit, learned Magistrate made conditional order absolute by order dated 24.01.2013. This order dated 24.1.2013 has been challenged in Criminal Revision bearing no.72 of 2013 (Sudhir Sinha and others Vs. A.C.M., Lucknow and others) before Sessions Judge, Lucknow, who admitted this revision on 26.02.2013. This revision was filed by occupants of part of the building of YMCA. The revisionists of Criminal Revision No.72 of 2013 also moved an application before A.C.M, Lucknow on 28.01.2013 to recall the aforesaid order dated 24.01.2013 alleging to be an ex-parte order and also on the ground that the same was passed without affording opportunity of hearing to the occupants of the building in question. The learned Magistrate vide its impugned order dated 28.01.2013 observed that while passing order dated 24.01.2013 procedural mistake has been committed by not giving notice to the occupants whose interest in the property has been adversely affected and stayed the operation of order dated 24.01.2013. This order dated 28.01.2013 is subject matter of petition under Section 482 Cr.P.C. preferred by L.J. Bhatti impleading Sudhir Sinha and other revisionists in the Criminal Revision No.72 of 2013.

5. On 19.03.2013, this Court passed an order to decide both the cases i.e. petition under Section 482 Cr.P.C. and criminal revision pending before sessions Judge simultaneously. Hence vide order dated 19.03.2013 record of criminal revision pending before sessions Judge was requisitioned for hearing before this Court along with petition under Section 482 Cr.P.C. The said criminal revision was then registered in High Court as Criminal Revision No. 200 of 2013.

6. I have heard Sri I.B. Singh, learned Senior Advocate assisted by Shri M.A.Khan. Advocate appearing for petitioner in petition under Section 482 Cr.P.C. and opposite party no. 6 in Criminal Revision No. 200 of 2013, Dr L.P. Mishra, learned Senior Advocate assisted by Rakesh Pandey, Advocate appearing for revisionists in Criminal Revision as well as opposite parties 5 to 11 in Petition under Section 482 Cr.P.C. and also perused the record of court of Magistrate and of both the cases with the assistance of the counsel for the parties.

7. While assailing the order dated 28.01.2013, passed by learned Magistrate staying the operation of order dated 24.01.2013, Sri I.B. Singh, learned Senior Advocate submits that the said orders are beyond jurisdiction as the same are hit by Section 362 Cr.P.C. It was further submitted by Shri I.B. Singh that revisionists are not necessary parties to be impleaded in proceedings under Section 133 Cr.P.C. as they are not owners of premises in question and only the owner of the building can be directed to demolish the building or to carry out the orders passed by the Magistrate. Therefore, revisionists have no locus standi to move the application for recall or to challenge the order dated 24.01.2013 passed by the Magistrate making conditional order absolute. It was further submitted that there was no procedural illegality or irregularity in passing the order dated 24.01.2013 and the observations made by learned Magistrate while recalling the order 24.1.2013 vide order dated 28.01.2013 are unwarranted. The provisions contained in Sections 133 and 138 Cr.P.C. made it clear that only in the cases of denial of alleged nuisance, the court shall proceed to record the evidence like summons case and not otherwise, hence recording of evidence in terms of provisions of summons case as provided under section 274 Cr.P.C. would not be applicable, hence learned Magistrate has no authority to recall its own final order which has been passed in accordance with law after hearing both the parties to the proceedings. It was further submitted that occupants have no locus as the building in question is dangerous and hazardous to occupants and passers-by. The proceedings pending in the civil court would not create any impediment in passing the orders under Section 133 Cr.P.C. when the Magistrate finds the case of public nuisance. It was further submitted by Shri Singh that word used 'or ' after clause (f) of sub-Section (1) of Section 133 Cr.P.C. the should be treated as 'and'. In this regard, he relied upon the following judgements of the Apex Court in the matter.

1.Tilkayat Sri Gonidlalji Maharaj Vs. State of Rajasthan 1964 (1) SCR 561.

2.CH. Razik Ram Vs. CH. Jaswant Singh 1975(4) SCC 769

3.State of Bihar Vs. S.K. Roy AIR 1966 SC 1995

8. On the strength of these citations it has been submitted that by use of word 'and' in place of 'or' the owner having possession and control over such building could only remove obstruction and nuisance and in that situation the person occupying premises with the permission of owner or otherwise would not be the person to whom direction may be issued by the Magistrate. It was further submitted that availing the remedy by the owner under Section 21(1) (b) of Urban Buildings (Regulations of Letting) Rent and Eviction Act, 1972. does not create any bar for initiation of proceedings under Section 133 Cr.P.C. as held by this Court in Geeta Devi (Smt.) and others Vs. State of U.P. and others, 2000 (40) ACC 298. It was further submitted that in this case occupants of the building are creating obstruction in removing nuisance. The court of law should have a realistic approach and not idealistic and what cannot be performed under given circumstances cannot be prescribed as a norm to be carried out, as held in Municipal Council Ratlam Vs Shri Vardichan and others 1980 (4) ACC 162 .

9. So far as the competence to recall of final order is concerned, learned Senior Advocate Sri I.B. Singh relied upon the judgement of this Court in Ram Sewak Rai vs. State of U.P. and others, 2011 (2) ACR 1279; wherein it has been held that against the final order under Section 133 Cr.P.C., there is no provision in the Code of Criminal Procedure to file recall application. It was further submitted that criminal courts have no jurisdiction to review/recall its own order unless some real prejudice is shown to be caused to the applicant and the applicant cannot merely take advantage of technical infringement of natural justice as a ground of attack to recall of order as held in Natwar Singh Vs. Directorate of Enforcement and another (2010) 13 SCC 255.

10. It was further submitted by Sri I.B. Singh that it is a clear case of public nuisance, hence proceedings under Section 133 Cr.P.C. are maintainable. It is not a case where it could be said that the proceedings launched were intended to settle private dispute between different members of public. In fact the proceedings were intended to protect public as a whole against inconvenience. In this regard, he relied upon judgements of Hon'ble Supreme Court rendered in Vasant Munga Nikumba and others Vs. Babu Rao Bhiwana Naidu, 1995 Supp (4) SCC 54 and Kachrullala Bhagirath Agrawal and others (2005) 9 SCC 36.

11. At last after relying upon the judgement of Supreme Court in Amit Kapur Vs. Ramesh Chander,(2012) 9 SCC 460 Sri I.B. Singh, Senior Advocate submits that scope of revision is limited. Revisional jurisdiction can be invoked where the decision under challenge is grossly erroneous, there is no compliance with the provisions of law, findings recorded is based on no evidence or material evidence is ignored or judicial discretion exercised arbitrarily. The order dated 24.01.2013 does not suffer from any illegality and the same cannot be interfered.

12. In replying the arguments advanced by Sri I.B. Singh, learned Senior Advocate, Dr. L.P. Mishra, learned Senior Advocate firstly drew the attention of this Court towards the procedure which ought to have been applied by the learned Magistrate before issuing show cause notice under Section 133 (1) Cr.P.C. He argued that phraseology used under sub-section (1) of Section 133 Cr.P.C. is clear and unambiguous. The use of words "on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers." makes it incumbent upon the Magistrate ,if case falls in any of the categories of sub-sections (1)(a) to (1) (f) of Section 133 Cr.P.C. the Magistrate before passing conditional order and requiring the person owning, possessing or controlling of building causing obstruction or nuisance to demolish the building, take such evidence in terms of section 274 Cr.P.C. which he thinks necessary. In this case, the Magistrate has not complied with mandatory provision which requires to assume jurisdiction to issue conditional order. He has submitted that Magistrate in this case after receiving the police report, the report of PWD and report of Nagar Nigam without taking any evidence which was mandatory in terms of sub-section (1) of section 133 of Cr.P.C. proceeded to issue conditional order. Therefore, the order issued under Section 133 (1) Cr.P.C. is without jurisdiction and if the same is without jurisdiction, the same cannot be affirmed or made absolute without taking any further evidence. Thus the order passed by the Magistrate suffers from jurisdictional error.

13. Sri Mishra further submits that tenant or occupier of a premises are necessary party in the proceedings under Section 133 Cr.P.C. In this regard, he placed reliance on the case of Anant Ram Vs. State of U.P. and another, 1972 AWR (HC) 4270 and Sri Pranab Kumar Chakraborty Vs. Md. Akram Hussain and others,1991 Crl.L.J. 3156, wherein it has been held that proceedings concluded without impleading the person in possession would not be proper. In view of the aforesaid decisions, Shri Mishra submits that revisionists are necessary parties and should be heard by the Magistrate before passing the order under Section 133 Cr.P.C. He further pointed out that some of the persons are occupying the building is mentioned in the police report on the basis of which conditional order was issued, but the Magistrate instead of that did not issue notice or show cause in view of sub-section (1) of Section 133 Cr.P.C. and even without recording evidence in terms of Section 274 Cr.P.C. proceeded to decide the proceedings on the basis of mere reports which were not proved during the proceeding by producing the persons who submitted the reports. Hence the order passed on 24.01.2013 by the Magistrate is without jurisdiction and suffers from jurisdictional error as it is passed on the basis of no evidence and on the material which is not at all admissible under law as evidence within the meaning of section 274 and section 254 Cr.P.C.

14. It was further submitted by Sri Mishra that action could only be taken by the Magistrate under Section 133 Cr.P.C. regarding removal of nuisance if the same causing imminent danger of falling as held in Vasant Munga Nikumba's case (Supra). He further pointed out that record reveals which has been produced by YMCA during the course of proceedings before this Court that property in question was purchased in 1962 by YMCA through registered sale-deed and thereafter same was given on license to the opposite parties in 1984, 1988 and so on.

15. If the building in question was 100 years old and the same was alleged to be constructed in 1905 It was given to different occupants after its purchase in 1962. Even L.J. Bhatti was also having own office till the application under Section 133 Cr.P.C. was moved as is evident from the police report which shows that there is no imminent danger of falling building in question which also fortifies with the fact that the application was moved under Section 133 Cr.P.C. more than one year ago and no further deterioration was reported in the building nor building collapsed even after heavy rains hence in view of Vasant Munga Nikumba's case (supra) it will not be a case of imminent danger of falling building and proceedings under Section 133 Cr.P.C. are abuse of process of law.

16. So far as the matter regarding taking of evidence before passing final order is concerned Dr. L.P. Mishra, learned Senior Advocate relied upon the judgement of this Court reported in 2005 CRI L.J. 2013 (All) Mool Chandra and others Vs. State of U.P. and others and M/s Hindustan Glue and Ziletin Factory Vs. State of U.P. 1998 Crl. L.J. 1087 (1) (All), wherein it has been held that order under Section 133 Cr.P.C. cannot be made absolute without taking evidence. He further submits that in view of the judgement rendered by this Court in Anant Ram's Case (Supra), the revisionists are necessary parties being in possession of property to the proceedings. It is also not in dispute that legal proceeding has launched by YMCA and the eviction proceeding is pending in the civil court since 2009, therefore, without providing opportunity of hearing to necessary parties and without observing procedural mandate, final order passed by Magistrate cannot be allowed to sustain. If the Magistrate after noticing all these facts passed the order staying the operation of final order, which if otherwise allowed to continue, would of-course cause great in justice to the revisionists. The order passed is thus,without jurisdiction and has been procured after concealing the material facts. The proceedings are also is conclusive. It was further submitted that Virendra Kumar Shukla is virtually an advocate and is appearing for YMCA. He is under control of petitioner L.J. Bhatti who filed the reply admitting all the allegations made by Virendra Kumar Shukla without disclosing the material facts. The fact that revisionists are in possession of the premises in question is not disputed. As such the proceedings are conclusive in nature and based on fraud. The fraud is noticed by the learned Magistrate while passing the order dated 28.1.2013. Thus, he has jurisdiction to alter his own order because fraud vitiates all these proceedings.

17. It was further submitted by Dr. L.P. Mishra, leaned Senior Advocate that in pursuance of Court's order YMCA filed regulation of society by which same is governed alongwith building contract with contractor. The fact alleged by the revisionists in his pleadings, that these proceedings were actually sponsored on behalf of the builders who entered into contract with L.J. Bhatti to construct commercial project over it and he any how wanted possession of premises in question, therefore, to achieve his illegal design proceeded by means of these proceedings under Section 133 Cr.P.C. is evident from agreement entered into in between National Council of Young Men's Christian Association of India and M/s S. Gupta Builtech Limited filed by L.J Bhatti in this Court. This agreement dated 05.12.2006 entered into in between National Council of Young Men's Christian Association of India and M/s S. Gupta Builtech Limited discloses that YMCA purchased the property by a sale-deed in 1962 having an area of 6107.43 sq. mtrs, out of which two plots measuring 1400 sq. mtrs each were leased out to M/s Moti Lal and Co. and out of remaining plot of land measuring 3307.43 sq. mtrs YMCA gave 1322.97 sq. mtrs land to the builder and the contract was entered into in between YMCA and builder to construct official/commercial multi storey complex over the same. The terms and conditions of contract reveal that builder has paid Rs.30 lacs as advance to YMCA in consideration against the allocation of 50% of the total constructed area of the project/building along with proportionate rights in the land given to builder. Agreement also reveals that period of completion of the project work was 24 months from the date of sanction of plans or from the date of owner allowing access to the builder to the demised premises after getting it fully vacated from the sitting licensee/occupants, which ever is later.

18. Dr L.P. Mishra, learned Senior Advocate drew the attention of this Court towards one of the object of association which includes sale and purchase of property to achieve objective of society for development of association and if the object of society (YMCA) is to deal in sale and purchase of property for profit, the YMCA cannot take advantage that it is public interest or they are entered into agreement for public purpose.

19. He further relied upon a judgement reported in AIR 2009 SC(Suppl) 282, Ashit Kumar Kar Vs. State of West Bengal, wherein the Apex Court held that this is fundamental principles of natural justice that no adverse orders should be passed against a party without hearing him and the same is basic cannon of jurisprudence. He also relied upon the judgement of this Court rendered in Mohd. Hayat Khan Vs. State of U.P. and others 1991 (9) LCD 395, wherein the basis of judgement of the Apex Court in Grindlayas Bank Ltd. Vs. Central Government Industrial Tribunal, AIR 1981 SC 606 it was held that any authority on the application of affected parties may recall its own order.

20. He further submits that in view of the factual matrix of the case it cannot be said that L.J.Bhatti who is not the applicant under Section 133 Cr.P.C. is coming to the court with clean hand and he actually perpetuated fraud over the court in obtaining the order by misleading the facts with connivance of his own Advocate Shri Virendra Kumar Shukla. It is virtually a case of misuse of legal process to achieve hidden goal which is evident from the agreement entered into in between YMCA and builder.

21. After hearing the parties counsel the following questions are for determination before this court to decide this lis:-

1.Whether Revisionists are necessary parties in aforesaid proceedings under section 133 Cr.P.C. being occupant and in possession over the building sought to be demolished to remove the alleged nuisance?

2.Whether the order dated 24.1.2013 passed by learned Magistrate suffers from any procedural illegality, irregularity or defect sufficient to set aside the same?

3.Whether the Magistrate was having jurisdiction to stay the operation of order dated 24.01.2013 by passing order dated 28.01.2013 on behest of revisionists?

22. Before discussing the merits of the case, it would be necessary to look into the statutory provisions governing the controversy. These provisions are quoted here in below:-

"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 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 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; 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 time to be fixed in the order-

(i) to remove such obstruction or nuisance; or

(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or

(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) to fence such tank, well or excavation; or

(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order;

or, if he objects so to do, to appear before himself or some other Executive Magistrate Subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.

(2) No order duly made by a Magistrate under this section shall be called in question in any civil court.

Explanation. A "public place" includes also property belonging to the state, camping grounds and grounds left unoccupied for sanitary or recreative purposes.

137. Procedure where existence of public right is denied.

(1) Where an order is made under section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under section 138, inquire into the matter.

(2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent court; and if he finds that there is no such evidence he shall proceed as laid down in section 138.

(3) A person who has, on being questioned by the Magistrate under sub-section (1), failed to deny the existence of a public right of the nature therein referred to, or who having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial.

138. Procedure where he appears to show cause.

(1) If the person against whom an order under section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons-case.

(2) If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be with such modification.

(3)If the Magistrate is not so satisfied, no further proceedings shall be taken in the case.

254. Procedure when not convicted.

(1) If the Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.

(2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing.

(3) A Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in court.

274. Record in summons cases and inquiries.

(1) In all summon cases tried before a magistrate in all inquiries under sections 145 to 148 (both inclusive), and in all proceedings under section 446 otherwise than in the Course of a trial, the Magistrate shall as the examination of each witness proceeds, make a memorandum of the substance of the evidence in the language of the court:

Provided that if the Magistrate is unable to make such memorandum himself, he shall the after recording the reason of his inability cause such member to be made in writing or from his dictation in open court.

(2) Such memorandum shall be signed by the Magistrate and shall form part of the record."

23. Question No.1 It is not in dispute that the revisionists are the occupants and are in possession over different parts of the building in question . According to YMCA they are licensees and after the expiry of period of licence they are illegal occupants. It is also not in dispute that Regular Civil Suit Nos. 313 of 2009, 941 of 2009, 942 of 2009,945 of 2009, 947 of 2009 and 948 of 2009 are filed by YMCA against the revisionists in the civil court at Lucknow for eviction and recovery of damages.

24. In view of these facts the law laid down in Anant Ram vs State of U.P. ,1972 AWR (HC) 427 and Pranab Kumar Chakraborty Vs. Mohammad Akram Hussain,1991 CR.L.J 3156 are fully applicable. The relevant extract of para 3 of Anant Ram's case (Supra) are quoted herein below:-

" ..... It is thus clear that with respect to a building,tent etc. a person owning, possessing or controlling are all proper parties. It is true that if a person owns a building which is in an unfit and dilapidated condition that Municipal authorties have merely to search their records to find the name of owner and to give notice. It is also true that if a particular building is in a unfit condition which is likely to be dangerous to the passers-by, the public at large has a right to apply against the owner of the building to get the same demolished. But it cannot be said that an order for demolition of a building will not affect a person, who is in possession of the premises. In this particular case Dr. Purshotam Das Gupta was admittedly in possession of lower portion of the building as a tenant. The result of the order of demolition would have been that he would be thrown on the streets. Even if it is assumed that he is not a necessary party to the proceedings under section 133 Code of Criminal Procedure he certainly be a proper party being a person who would be affected by the order of demolition . He certainly has a right to apply to the Court and to put forward a case that he is in possession of the part of the building which is in a perfectly strong and sturdy condition and which does not require demolition at all. He can certainly put forward a case that the order of demolition of portion in his possession is erroneous and mischievous. I am not at present concerned with the merits of the objections which will be decided at the proper stage. The only point which I wish to emphasise that the tenant of a premises is a proper party within the meaning of section 133 Code of Criminal procedure being in possession of the building and he has every right to be impleaded as a party in those proceedings so that he can put forward his case before the Court."

25. In Pranab Kumar Chakraborty's case (Supra) the Court in para 11 and 12 similar view has been reinforced as has been held in Anant Ram's case (Supra). Paras 11 and 12 are quoted below:-

"Para 11. I also find considerable force in the submission of the learned counsel for the petitioner that from the list of articles recovered from the room there was no chance of bad smell coming from the room. I entirly agree with the learned counsel for the petitioner that entire proceeding was initiated only to get possession of room without going through the normal procedure of law."

"Para 12. There cannot be any dispute that with the help of order passed U/S 133 CR.P.C.a landlord cannot evict a tenant from the possession of the house."

26. The Apex Court in AIR 2009 SC(Supp) 282, Asit Kumar Kar v. West Bengal and ors has held that no adverse order should be passed without hearing the affected party is a fundamental principle of natural justice and basic canon of jurisprudence.

27. It is worth notice that there is no change in phraseology used in regard to particular part of section 133 Cr.P.C. before and after amendment of Cr.P.C. in 1973.

28. As the question that person in possession of property as tenant or licensee would be affected with the order of demolition passed under section 133 Cr.P.C., he is entitled to be impleaded and to be heard.

29. The controversy raised by Counsel for YMCA that under section 133 the notice of proceeding should be given to the owner of building only and the word 'possessed' or ' controlling' should be used for owner only and the word 'or' used should be read as 'and' is no longer res-intigra in view of law propounded in Anant Ram's case (supra), so there is no need to go into this question in the light of judgement cited from the side of YMCA. Moreover, the case laws cited in this regard by counsel for YMCA are not in connection with interpretation of phraseology used in section 133 Cr.P.C.

30. Therefore, in view of discussion made herein above, the question in answered in affirmative and held that revisionists are the persons to be heard and impleaded as proper party in proceeding under section 133 Cr.P.C. before putting into action the order of demolition.

31. Question No.2 Though in view of findings recorded on question No.1 the order dated 24.1.2013 passed by Magistrate for demolition of building without hearing the revisionist suffers from illegality sufficient to set aside the order of demolition but there are other procedural irregularities sufficient not only the set aside the order but also the proceeding initiated by the Magistrate. These are as follows:-

A. That the learned Magistrate did not comply the mandatory requirement of taking and recording the evidence in terms of section 254 read with section 274 Cr.P.C. after receipt of police and other reports before issuing conditional order of demolition or to show cause to L.J.Bhatti.

B. The learned Magistrate did not apply his mind before issuing the conditional order which is evident from police report in wherein some names of person in possession of the building in question were mentioned but inspite of that he did not issue notice to them to show cause as is required under clause (d) of sub section (1) of section 133 Cr.P.C.

Therefore, this question is answered in affirmative.

32. Question No.3 This question relates to the competence of magistrate to stay the operation of the order of demolition dated 24.1.2013.

33. In view of findings recorded on question No.1, the revisionists were entitled to be heard and impleaded as proper party and certainly would be adversely affected if the order of demolition would be carried out.

34. The Supreme Court in Natwar Singh v. Director of Enforcement, (2010) 13 SCC 255 at page 268 observed in para 26, is quoted hereinbelow:-

"Even in the application of the doctrine of fair play there must be real flexibility. There must also have been caused some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with and so forth. Can the courts supplement the statutory procedures with requirements over and above those specified? In order to ensure a fair hearing, courts can insist and require additional steps as long as such steps would not frustrate the apparent purpose of the legislation."

35. In Asit Kumar V State of West Bengal and ors AIR 2009 SC (Supp) 282 the Apex Court distinguished between 'recall' and 'review' which is as under:-

"There is a distinction between......a review and recall petition. While in review petition , the Court considers on merits whether there is an error apparent on the face of record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to the affected party"

36. The similar view has been propounded by the Apex Court in Vishnu Agarwal V State of U.P. And another in the light of section 362 of Cr.P.C.

37. In another case the Hon'ble Supreme Court while taking into consideration the scheme of section 362 Cr.P.C held in State of punjab V. Devender Pal Singh Bhullar and Ors, 2012 (1) JIC 833 SC observed in para31 is quoted herein below "If a judgement has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction,inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Cr.P.C. would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault. (Vide:Chitawan & Ors. v. Mahboob Ilahi, 1970 Crl.L.J. 378; Deepak Thanwardas Balwani v. State of Maharashtra & Anr., 1985 Crl.L.J 23; Habu v. State of Rajasthan, AIR 1987 Raj. 83 (F.B.); Swarth Mahto & Anr. v. Dharmdeo Narain Singh, AIR 1972 SC 1300;Makkapati Nagaswara Sastri v. S.S. Satyanarayan, AIR 1981 SC 1156; Asit Kumar Kar v. State of West Bengal & Ors., (2009) 2SCC 703; and Vishnu Agarwal v. State of U.P. & Anr.,AIR 2011 SC1232)."

38. In view of these authorities the application moved before Magistrate was for recall and not for review of order of demolition dated 24.1.2013. Therefore it cannot be said that the learned Magistrate was not competent to stay the operation of the order of demolition till the date of disposal of the recall application.

39. Hence this question is also answered in affirmative.

40. The position now emerged out on the basis of fact of this case and on the basis of findings arrived at on aforesaid question that revisionists are the person affected with the order of demolition dated 24.1.2013 and are proper party having right of being heard before passing of the same. They certainly have a right to apply to the Court and to put forward a case that the order of demolition of portion in his possession is erroneous and mischievous. Consequently they have every right to be impleaded as a party in those proceedings so that he can put forward his case before the Court.

41. This Court is not at present concerned with the merits of the objections raised by the revisionists because this Court is of the view that order dated 24.1.2013 passed by learned Magistrate is not sustainable for the reasons mentioned herein above in this judgement. Therefore, the revision deserves to be allowed.

42. As this Court is of the view that order dated 24.1.2013 is not sustainable and deserves to be set aside, so there is no need to go into question of validity of order dated 28.1.2013 at this stage.

43. In view of the above, the criminal revision is allowed. The order impugned dated 24.1.2013 is set aside. The learned Magistrate is directed to re-register the case and order for impleadment of the revisionists in the proceedings and then decide the case in accordance with law in the light of observations made in this judgement expeditiously after giving opportunity of being heard and to adduce the evidence to the parties concerned. It is made clear that this Court has not considered the merit of respective claims of the parties so the learned magistrate shall decide the case on its own merit without being influenced with any findings, if recorded by this Court on merit for deciding the revision or petition under section 482 Cr.P.C.

44. The parties are directed to appear before the learned Magistrate on 15.01.2014. The record of the court of Magistrate be sent back positively before the date fixed before the learned Magistrate/court concern. Registrar of this Court to ensure the compliance of this order.

45. The petition under section 482 of Cr.P.C. wherein order dated 28.1.2013 is under challenge is consequently dismissed.

Order Date: 3rd December,2013 GSY

Unlock Advanced Research with PRISMAI

Allahabad High Court