BALAKRISHNA RAO Vs. STATE OF MYSORE

JUDGEMENT

(1.) The petitioner and the third respondent who are husband and wife; received a notice under S.133 CrPC from the Sub-Divisional Magistrate, Revenue Sub-Division, Chickmagalur to vacate the house in which they are living as tenants of respondent No.2 or to show cause against the order. The petitioner appeared to show cause. The Sub-Divisional Magistrate inspected the house on 2-12-1972 and passed the final order under S.137 CrPC directing the petitioner and respondent No.3 to vacate the house within a period of 30 days from the date of service of the order on them, failing which they would be evicted forcibly by the police. It is this order that is challenged in this petition.

(2.) Under S.137 CrPC it is the duty of the Magistrate to take evidence as basis for the order he has to make. The Sub-Divisional Magistrate inspected the building, but did not take evidence. His proceedings consequently show only his opinion that the structure was in a dilapidated condition and would be likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or persons passing by and in consequence the removal of the structure was necessary. They do not show by evidence that the existence of the house in that condition was a nuisance and thereby would cause injury to the persons who are living therein, or carrying on business in the neighbourhood or passing by. But unless there was such a case for interference the Magistrate had no authority to issue the order in question or enforce it. It cannot be inferred from the mere order of the Sub-Divisional Magistrate that all the conditions of his jurisdiction have been satisfied. When a statute directs anything to be done in a particular way, that includes in itself a negative namely that it shall not be done otherwise.. The order made by the Sub-Divisional Magistrate, therefore, docs not satisfy the requisite conditions.

(3.) I, therefore, allow this petition, reverse the order in question and remit the case back to the Sub-Divisional Magistrate to dispose of the same in accordance with law, after recording evidence.