GARG, J. - (1.) THIS criminal misc. petition under Sec. 482 Cr. P. C. has been filed by the petitioner-Smt. Sudhanarayan (hereinafter referred to as the party No. 2) against the respondent-Prem Phutela (hereinafter referred to as the party No. 1) challenging Additional Sessions Judge NO. 1, Sri Ganganagar in Criminal Revision NO. 53/2000 whereby he dismissed the revision petition of the party No. 2 and upheld the order dated 23. 3. 2000 passed by the learned Additional District Magistrate (City), Sri Ganganagar in Case No. 736/99 pertaining to the proceedings under Sec. 133 Cr. P. C. , by which the learned Additional District Magistrate (City) ordered that the house in question be demolished.
(2.) IT arises in the following circumstances:- The party No. 1 Prem Phultela filed an application dated 5. 8. 1999 before the learned Collector, Sri Ganganagar purporting to be under Sec. 133 Cr. P. C. stating inter-alia that there is a Nohra No. 33 situated in Purani Dhan Mandi, Sadar Bazar, Sri Ganganagar having area of 42x67 foot and that Nohra has three storeys, but that Nohra was in a dilapidated condition and that Nohra was not fit for living human beings and the report of the Municipal Council, Sri Ganganagar showing that the said Nohra was not fit for living was also submitted by the party No. 1 alongwith the said application. IT was further stated in that application that since lot of people used to pass through the Sadar market, therefore, that Nohra should be demolished otherwise it might cause damage to life and property of anybody. On that application, the learned Collector, Sri Ganganagar vide order dated 10. 8. 1999 directed the Additional District Magistrate (City), Sri Ganganagar to register the case under the provisions of Code of Criminal Procedure and proceed further in the matter. Thereafter, on 25. 9. 1999, the learned Addl. District Magistrate (City), Sri Ganganagar registered the criminal case under Sec. 133 Cr. P. C. and passed a preliminary order and thereafter, notices under SEc. 133 (1) Cr. P. C. were issued to those persons, who were living in that Nohra (house) and they were asked to appear on 1. 10. 1999. In compliance of that notice, the party No. 1 filed his reply on 1. 10. 1999 and narrated all the contents which were earlier narrated by him in the application dated 5. 8. 1999 made by him to the learned Collector, Sri Ganganagar. IT was further alleged by the party No. 1 in the reply that since the house in question was in a dilapidated condition, therefore, it is might fall on any day, therefore, it should be regarded as "public nuisance". The party No. 2 (petitioner in the present petition under Sec. 482 Cr. P. C.) filed her reply on 23. 10. 1999 stating inter-alia that the application under the provision of Sec. 133 Cr. P. C. was not maintainable as the house in question was in a very good condition and it was further alleged that the report of the Municipal Council, Sri Ganganagar, on which reliance was placed by the party No. 1, had no evidentiary value and that report was an old one and similarly, the report of the PWD had no bearing and it was given without jurisdiction. IT was further averred in the reply that the intention of the party No. 1 was only to evict the party No. 2 from the house in question and for that, party No. 1 removed the patties beneath the roof. IT was further averred in the reply that earlier to the present proceedings, the proceedings under section 133 Cr. P. C. were initiated and in that proceedings, the learned Addl. District Magistrate (City), Sri Ganganagar through order dated 17. 12. 1998 directed the party No. 1 to repair the house in question. Against the said order dated 17. 12. 1998 passed by the learned Addl. District Magistrate (City), Sri Ganganagar, the party No. 1 preferred a revision petition being No. 5/99 and the learned Addl. Sessions Judge No. 1, Sri Ganganagar allowed that revision petition and set aside the order dated 17. 12. 1998 passed by the learned Addl. District Magistrate (City), Sri Ganganagar holding inter-alia that the dispute between he parties was not covered by the word "public nuisance" and thus, the case does not fall under section 133 Cr. P. C. In these circumstances, it was further averred that the initiation of fresh proceedings under Sec. 133 Cr. P. C. are without jurisdiction and not maintainable. IT was further averred in the reply that since many matters pertaining to ownership and title of the house in question between both the parties are pending in the civil and other courts, therefore, from this point of view also, the present proceedings under section 133 Cr. P. C. are not maintainable. Therefore, from the order-sheet dated 10. 11. 1999, it appears that the party No. 1 did not lead any evidence at that stage and, thereafter, six witnesses produced on behalf of they party No. 2 were examined and in rebuttal, six witnesses were produced by the party No. 1 before the learned Addl. District Magistrate (City), Sri Ganganagar. The learned Addl. District Magistrate (City), Sri Ganganagar through order dated 23. 3. 2000, on the basis of the report of the Municipal Council and the report of the SHO concerned and on the basis of site inspection and after analysing the oral evidence on record, came to the conclusion that the house in question was in a dilapidated condition and that the house in question was not repairable one and since it might fall on any day, therefore, the case was covered by the word "public nuisance" and thus, it should be demolished. Aggrieved from the said order dated 23. 3. 2000 passed by the learned Addl. District Magistrate (City), Sri Ganganagar, the party No. 2 preferred a revision petition before the learned Sessions Judge, Sri Ganganagar, which was latter on transferred to the learned Addl. Sessions Judge No. 1, Sri Ganganagar and the learned Addl. Sessions Judge No. 1, Sri Ganganagar through judgment dated 8. 5. 2000 dismissed that revision petition of the party no. 2 at the admission stage and confirmed the order dated 23. 3. 2000 passed by the learned Addl. District Magistrate (City), Sri Ganganagar. Aggrieved from the said judgment dated 8. 5. 2000 passed by the learned Addl. Sessions Judge No. 1, Sri Ganganagar, this criminal misc. petition under sec. 482 Cr. P. C. has been filed by the party NO. 2 against the party No. 1. In this petition, the following submissions have been raised by the learned counsel appearing for the party No. 2:- (1) That since the proceedings under Section 133 Cr. P. C. were earlier initiated between the parties and through order dated 17. 12. 1998, the learned Addl. District Magistrate (City), Sri Ganganagar came to the conclusion that the house in question was repairable and thus, party No. 1 was directed to get the house in question repaired and against the said order of the learned Addl. District Magistrate (City) dated 17. 12. 1998, the party No. 1, preferred a revision petition being No. Sec. 5/99 before the learned Addl. Sessions Judge No. 1, Sri Ganganagar, who vide judgment dated 4. 3. 1999 allowed that revision petition of the party No. 1 and set aside the order of the learned Addl. District Magistrate (City) holding inter-alia that the dispute between the parties was not covered by the word "public nuisance" and on the contrary, it was a private nuisance and therefore, in these circumstances, on the same facts, initiation of the fresh proceedings under section 133 Cr. P. C. are without jurisdiction and not maintainable. (2) That whatever dispute is between the parties, it is a family dispute and it has no bearing with the public nuisance and, therefore, the whole proceedings initiated under Sec. 133 Cr. P. C. are irrelevant and illegal and the same are liable to be set aside. Furthermore, it is an admitted position that civil matters are pending between the parties in the civil courts with regard to ownership and title over the house in question, therefore, whatever dispute is between the parties, it is a civil dispute and thus, the present proceedings under Sec. 133 Cr. P. C. are not maintainable. (3) That once the proceedings have been started under Sec. 133 Cr. P. C. and as per Sec. 138 Cr. P. C. the trial would commence as per the provisions of summons case and, therefore, since party No. 1 did not lead any evidence in the beginning, therefore, in these circumstances, the whole trial is without jurisdiction and subsequent adducing of evidence by the party No. 1 had no bearing and from this point of view also, the whole proceedings under Section 133 Cr. P. C. are illegal and without jurisdiction and the same are liable to be set aside. On the other hand, the learned counsel appearing for the party No. 1 supported the impugned judgment dated 8. 5. 2000 passed by the learned Addl. Sessions Judge No. 1, Sri Ganganagar. I have heard the learned counsel appearing for the party No. 2 and the learned counsel appearing for the party No. 1 and perused the records of the case. Before proceedings further, some material facts, which are on record, may be narrated here:- (1) That earlier to the present proceedings under Section 133 Cr. P. C. , a report was lodged by the party No. 1 against the party No. 2 in the Police Station Kotwali Sri Ganganagar and on the basis of that report, a complaint under section 133 Cr. P. C. was filed by the SHO, Police Station Kotwali, Sri Ganganagar on 23. 7. 1997 in the Court of Addl. District Magistrate (City), Sri Ganganagar and in that proceedings, the learned Addl. District Magistrate (City), Sri Ganganagar through order dated 17. 12. 1998 came to the conclusion that in respect of possession of the house in question, there was dispute between the party No. 1 and party No. 2 and since the house in question was in a dilapidated condition, therefore, it should be repaired and thus, he directed the party No. 1 to make repair of the house in question. (2) That aggrieved from the order dated 17. 12. 1998 passed by the learned Addl. District Magistrate (City), Sri Ganganagar, the party No. 1 preferred a revision petition being No. 5/1999 and the learned Addl. Sessions Judge No. 1, Sri Ganganagar through judgment dated 4. 3. 1999 allowed the said revision petition and set aside the order of the learned Addl. District Magistrate (City), Sri Ganganagar holding inter-alia that the dispute between the parties was not covered by the word "public nuisance" and, therefore, any order passed under section 133 Cr. P. C. is illegal. Point No. 1
(3.) FROM the order dated 17. 12. 1998 passed by the learned Addl. District Magistrate (City),sri Ganganagar and the judgment dated 4. 3. 1999 passed by the learned Addl. Sessions Judge No. 1, Sri Ganganagar in the revision petition field by the party No. 1, it clearly appears that between the parties, proceedings under Sec. 133 Cr. P. C. had already taken place and through order dated 17. 12. 1998 the learned ADM directed the party No. 1 to make repair of the house in question and that order was set aside in revision by the learned Addl. Sessions Judge No. 1 through judgment dated 4. 3. 1999 and in that judgment, it was specifically held by the learned Addl. Sessions Judge No. 1 that the dispute between the parties was not covered by public nuisance and on the contrary, it was a private nuisance. In my considered opinion, the Magistrate has no jurisdiction to re-open the matter on a fresh application in respect of the same matter to draw up fresh proceedings under section 133 Cr. P. C. because of the simple reason that once it was held earlier that dispute between the parties in respect of the house in question, was not covered by the word "public nuisance", initiation of second proceedings is nothing but abuse of the process of the court and should not be allowed to continue and, therefore, the whole proceedings conducted afresh under section 133 Cr. P. C. are without jurisdiction and the same are liable to be set aside in exercise of the power under Sec. 482 Cr. P. C. to prevent abuse of the process of the Court. Thus, the point No. 1 is decided in favour of the party No. 2. Point No. 2 ;