Dismissed

Bhagwan Laxmi Narain Mandir Trust Situate at Mohalla- v. State of U.P.and ORS.6

Allahabad HC20 Feb 2024CRLR/347/2001

Case brief

AI extract

What is this about?

The High Court dismissed an old criminal revision challenging the dismissal of a petition for demolition of a building under Section 133 Cr.P.C., ruling that no imminent danger existed as civil proceedings were pending for years.

What did the court decide?

The criminal revision was dismissed for lack of merit as there was no imminent danger to the public.

Bhagwan Laxmi Narain Mandir Trust Situate at Mohalla… — Landlord and Tenant | Allahabad HC (2024)

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A.F.R.

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Neutral Citation No. - 2024:AHC-LKO:15077

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Court No. - 27

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Case :- CRIMINAL REVISION No. - 347 of 2001

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Revisionist :- Bhagwan Laxmi Narain Mandir Trust Situate At Mohalla-

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Opposite Party :- State Of U.P.And Ors.6 Counsel for Revisionist :- R.C.Mishra,Awadhesh Kumar Counsel for Opposite Party :- Govt.Advocate,S.K. Rastogi

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Hon’ble Subhash Vidyarthi J.

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The case is a 23 years’ old case listed under the heading ‘ These cases shall not be adjourned ’ yet a request for adjournment of the case has been made by the learned Counsel for the revisionist by sending a printed slip which does not make a mention of any reason for seeking adjournment.

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Earlier, the case was last listed on 01.02.2024 and the following order was passed on that date: -

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“The present revision has been filed against the dismissal order of the application of revisionist under Section 133 Cr.P.C. The interim order is of dated 6.6.2001.

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The matter is quite old.

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Learned counsel for the revisionist has moved the application for adjournment of the case for the day.

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AGA has submitted that approximately 23 years have gone by and the matter might have been frustrated.

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A perusal of the record indicates that the parties have taken so many adjournments on different dates.

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In view of above, it is directed that on the next date of listing, no further adjournment shall be granted and in absence of any party, the Court may consider to decide the revision on the basis of material available on record.

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List this case on 20.2.2024 in top ten listed cases.”

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Page No.1 of 6

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In these circumstances the request for adjournment made in a casual manner by merely sending a slip which does not contain any reason for seeking adjournment, is not reasonable and it cannot be accepted.

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Accordingly, the request for adjournment of the case is turned down and the court proceeds to examine the merits of the case with the help of Smt. Parul Kant, the learned A.G.A. appearing on behalf of the State.

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This is a revision under Section 397 read with Section 401 Cr.P.C. filed on 30.08.2001 challenging the validity of the order dated 06.06.2001,passed by the learned Additional Executive Magistrate, Kheri closing proceedings under Section 133 Cr.P.C.

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The revisionist had filed an application under Section 133 Cr.P.C. on 07.05.1999 stating that the double storied building in dispute had been constructed more than 125 years prior to filing of the application. The building was in a dilapidated condition, except for three shops situated on the ground floor of the building. A stay order passed by this court in Writ Petition No.2066 (M/S) of 1991 against the declaration of vacancy of the building was continuing. Some other proceedings were also pending before the Rent Control Authority and in the Small Causes Court. By means of the application the revisionist had prayed for demolition of the building. Objections were filed against the application stating that several proceedings were going on regarding the building which was sought to be demolished by the revisionist.

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The learned Additional Executive Magistrate, Kheri has rejected the application by means of an order dated 06.06.2001 wherein it is stated that a suit under Section 92 C.P.C.

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Page No.2 of 6

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regarding the building in dispute was pending. The opposite party had contended that the building was maintained in a proper condition and it was not under threat of falling down. After taking into consideration the judgment in the case of Sukhlal Vs. Brijbasi Lal : 1979 AWC 306, the learned Magistrate came to a conclusion that the proceedings under Section 133 Cr.P.C. could not be continued and accordingly the application was rejected.

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Section 133 of the Code provides that: -

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“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—

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* * *

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(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

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* * *

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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—

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* * *

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(iv) to remove, repair or support such building, tent or structure, or to remove or support such trees;”.

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In Sukh Lal v. Dr. Brij Basi Lal , 1979 SCC OnLine All 89 : 1979 All LJ 456, this Court had held that: -

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Page No.3 of 6

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“5…. the summary procedure prescribed under S. 133 Cr. P.C. is intended to meet situations of emergency, wherein taking of an immediate action is necessary. If such a situation does not exist and if constructions are long-standing, the proper remedy for the parties is to enforce their rights in a civil court and not to take recourse to the speedy and summary procedure prescribed under S. 133 Cr. P.C. This view has also been expressed earlier by a single Judge of this court in AIR 1965 All 215 Asharfi Lal v. State in the following words:

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“A proceeding under S. 133 should be taken in case of emergency where the public shall be put to great inconvenience and shall suffer an irreparable injury if the encroachment or nuisance is not removed at once by adopting the summary procedure contained in Ch. 10 and, therefore, ordinarily no action under S. 133, can be taken where the obstruction or nuisance has been in existence for a long period. However, there is no legal bar to seeking remedy under Sec. 133 where there exists a genuine emergency to have the encroachment or nuisance removed. Such an action can be taken even though the encroachment or nuisance has been in existence for a reasonably long period. But if the obstruction has been in existence for a long period without any change in circumstances the removal of such obstruction cannot be said to be urgent and the remedy must be sought in civil courts.”

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10. In Vasant Manga Nikumba v. Baburao Bhikanna Naidu ,

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1995 Supp (4) SCC 54, the Hon’ble Supreme Court held that: - “3. …The object and public purpose behind Section 133 is to prevent public nuisance that if the Magistrate fails to take immediate recourse to Section 133 irreparable damage would be done to the public. The exercise of the power should be one of judicious discretions objectively exercised on pragmatic consideration of the given facts and circumstances from evidence on record. The proceedings under Section 133 is not intended to settle private disputes or a substitute to settle civil disputes though the proceeding under Section 133 is more in the nature of civil proceedings in a summary nature .

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Page No.4 of 6

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4. A reading of Section 133 would clearly indicate that the Executive Magistrate has been empowered, on receiving a report of the police officer or other information and on taking such evidence as he thinks fit that any building, tent or structure is in such a condition that, due to failure to remove, disrepair, or without support 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 he is empowered to specify the time to remove, repair or provide support to such building, tent or structure or tree. Two options are open to the Executive Magistrate on considering whether structure, building etc. is in such a dilapidated condition which requires to be demolished immediately which brooks no delay to avert danger to the life and property of the neighbourhood or passers-by unless they could be suitably repaired or supported so as to avert danger to the public or have it removed, etc . The condition precedent to exercise the power under Section 133 is the imminent danger to the property and consequential nuisance to the public . The removal of the building is so urgently required as it is likely to fall and cause injury to persons living or carrying on business in the neighbourhood or passers-by. The nuisance is the concomitant act resulting in danger to the life or property due to likely collapse etc. The dangerous condition of the building is in praesenti but not in future. The section is limited to injuries likely to be caused to the passers-by or persons living or carrying on business in the neighbourhood. Each case has to be considered in the light of the facts and circumstances obtained in each case.”

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The proceedings under Section 133 Cr.P.C. are summary in nature and primarily meant to ensure removal of nuisance and to order demolition of a building causing nuisance in cases of imminent danger to the public. In the present case various civil litigation regarding the building in question were already pending between the parties when the application under Section 133 Cr.P.C. was filed. From the conduct of the revisionist in filing the revision in the year 2001 and thereafter

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Page No.5 of 6

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repetitively seeking adjournments of the revision and not trying to get the revision decided even after 23 years, indicates that there is no imminent danger of the building collapsing. It appears that the revisionist had taken recourse to the proceedings under Section 133 Cr.P.C. to bypass adjudication of rights in the pending civil proceedings.

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In these circumstances, there appears to be no illegality in the impugned order dated 06.06.2001 declining to continue the proceedings under Section 133 Cr.P.C. The revision lacks merit and the same is accordingly dismissed .

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(Subhash Vidyarthi, J.)

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Order Date :- 20.2.2024 Ram.

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Page No.6 of 6

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Digitally signed by :- RAM SINGH High Court of Judicature at Allahabad, Lucknow Bench

Bhagwan Laxmi Narain Mandir Trust Situate at Mohalla- v. State of U.P.and ORS.6

Case brief

What is this about?

What did the court decide?

Bhagwan Laxmi Narain Mandir Trust Situate at Mohalla- v. State of U.P.and ORS.6

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Cases cited

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