P.N. Bakshi, J. - (1.) This is a reference by the II Temporary Civil and Sessions Judge, Fatehpur dated 28 -7 -1971 for quashing an order of the SDM Fatehpur dated 18 -3 -1971 in proceedings Under Sec. 133 Code of Criminal Procedure.
(2.) On 20 -10 -1970 Dr. Baij Nath Gupta, Prachar Mantri, Nagar Congress Committee, Fatehpur and some other persons represented to the DM Fatehpur that the frontal portion in the northern side of the upper storey of a building owned by Anant Ram and occupied by Dr. Purshotam for running his Chemist shop was in a dilapidated condition and there was every possibility of its falling down. It was said that the dangerous condition of this portion might result in injury to the passersby. The owner was unwilling to get it demolished, hence the present application. The DM directed the SDM Fatehpur to inspect the building in question on the same day and to take necessary action. The Station Officer Kotwali was also directed to register a complaint at once on the same day. Some officer of the Nagar Palika, Fatehpur also appeared for inspection of the building on the same day. A recommendation was made for the demolition of the dilapidated part of the building. On 21 -10 -1970 the SDM Fatehpur passed a conditional order Under Sec. 133 Code of Criminal Procedure calling upon the landlord Anant Ram to get the entire building in question demolished by 27 -10 -1970 or to show cause against the conditional order. On 22nd October 1970 Dr. Parshotam Das who was a tenant in the said building, as mentioned above, moved an application before the SDM in which he alleged that he had bean in possession of this shop on the ground floor of the aforesaid building under an allotment order issued by the Rent Control and Eviction Officer, that some portion of the upper storey had fallen down during the rainy season but his shop was sturdy and strong and did not require any demolition. He further alleged that Anant Ram had by misleading the officers concerned obtained an order for the demolition of the entire building. According to him it was only the upper storey of the building which was fit to be demolished. On this application the SDM passed the following order: Heard the Applicant. Asked S.O. Kotwali to inform the owner not to demolish the lower portion of the building during the pendency of this matter. Disposal of objection, if any, on 27 -10 -1970. In response to the show cause notice the landlord Anant Ram filed his reply on 27 -10 -1970. He mentioned therein that the building was in a dilapidated condition and he had no objection to its being demolished. He was also prepared to bear the expenses of the demolition. After hearing the parties the learned Magistrate ordered as follows on 18 -3 -1971: Heard the parties. Let case proceed Under Sec. 137 Code of Criminal Procedure. Summon Uma Shanker Awasthi S.O. Kotwali, M.A. Ashraf Overseer Municipal Board and Sri Baij Nath for evidence on 29 -3 -1971. Aggrieved by this order Anant Ram filed a revision before the Temporary Civil and Sessions Judge Fatehpur, who has made a recommendation to this Court for quashing the impugned order. The ground on which this reference has been made is that Dr. Parshotam Das Gupta being a tenant had absolutely no locus standi in the matter and he should not have been allowed to some in the picture at all. In the view of the Sessions Judge the resort to the procedure contemplated by Sec. 137 Code of Criminal Procedure could not be made in the circumstances of the present case. If Dr. P.D Gupta felt that the order of demolition had been obtained by the landlord in collusion with the Police, the proper remedy for him, according to the Sessions Judge was to file a civil suit and to get his rights decided therein.
(3.) I have heard counsel for the parties at great length and have also perused the record of the case. In my opinion, there is no force in this reference and it must be rejected. The relevant portion of Sec. 133 Code of Criminal Procedure runs as follows: * * * * Learned Counsel for the Applicant has strenuously argued before me that Sec. 133 provides six contingencies and for each contingency a separate expression has been used. For the first three contingencies, namely, removal of unlawful obstruction or nuisance or of any trade or occupation, injurious to health or disposal of any substance as is likely to occasion conflagration or explosion the words "obstruction or nuisance, trade or occupation or any goods or merchandise" has been independently used. As each of the expressions are separately applicable to each of the contingencies mentioned above. On this basis he argues that for the 4th, 5th and 6th contingencies the words owning, possessing or controlling should also be deemed to have been used independently i.e. in the fourth contingency the question of ownership is relevant, in the fifth the question of possession and in the sixth the question of control. I have given my anxious consideration to the submission of the learned Counsel, but I am not inclined to accept it. It would be obvious from a perusal of the Sec. that even though the first three contingencies have got separate expressions relating to them, so far as the 4th and 5th contingency is concerned they have both been grouped up together. The Sec. refers to the Magistrate making the conditional order, requiring the person...owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation to appear before him. For the sixth contingency again a separate expression has been used. 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 the Municipal authorities have merely to search their records to find the name of the owner and to give him a notice. It is also true that if a particular building is in an unfit condition which is likely to be dangerous to the passersby, 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 the 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 Sec. 133 Code of Criminal Procedure he certainly is 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 a 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 the portion in his possession is erroneous and mischievous. I am not at present concerned with the merits of the objection which will be decided at the proper stage. The only point which I wish to emphasise is that a tenant of a premises is a proper party within Sec. 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. I am supported in my view by a decision reported in Kishori Lal Agarwalla v/s. State, ILR 1967 Pat 46 794. In that case their Lordships observed as follows: Under Sec. 133 of the Code, whenever a Magistrate considers, on receipt of a police report or other information, that the removal, repair or support of any building is necessary inasmuch as it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, he may make a conditional order requiring the person owning, possessing or controlling the building to remove, repair or support the building and if such person objects to do so, to appear before the Magistrate at the time and place to be fixed by the order and move to have the order set aside or modified in the manner hereinafter provided. It will be noticed that action may be taken under this provision either against the owner of the building or against the man in possession thereof or against the tenant, when a tenant is in actual occupation of the whole building or a portion thereof, or against both the owner and the tenant. It will not be possible for the owner without the consent of the tenant to get the portion of the building in his occupation removed or repaired or even to support that portion of the building in his occupation.;