Disposed

Bajranglal Sharma v. Ashok Kumar Gupta

Chhattisgarh HC14 Sept 2023CRR/566/2023

Case brief

AI extract

What is this about?

In a criminal revision under Section 397 Cr.P.C., the applicant challenged an order of eviction and demolition by the S.D.M. not being preliminary. The High Court held the petitioner should have approached the Sessions Court but noted pending rent proceedings and stayed demolition until the final rent order passes.

What did the court decide?

Demolition of the suit shop stayed until a final order is passed by the Rent Control Authority.

Bajranglal Sharma Vs Ashok Kumar Gupta — Civil Procedure and Limitation | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRR No. 566 of 2023

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Order Reserved on : 27.06.2023 Order Delivered on : 14.09.2023

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Bajranglal Sharma, S/o Late Moolchand Sharma, aged about 73 years, R/o Besides Govind Bada, Shankar nagar, Durg, District Durg, P.S. - Durg, Mohan Nagar, Durg, District Durg.

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---- Applicant Versus

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Ashok Kumar Gupta, S/o Late Laxman Prasad Gupta, aged about 76 years, R/o Block 20B/5 Nehru nagar West, Bhilai, District Durg (C.G.)

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---- Respondent

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For Applicant : Mr. Alok Bakshi, Advocate For Res./Caveator : Mr. Amiyakant Tiwari Advocate For State : Mr. Ayaz Naved, G.A.

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Hon'ble Smt. Justice Rajani Dubey

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C A V Order

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1. The applicant has filed this criminal revision being aggrieved by order dated 24.05.2023 (Annexure P/1) passed by the Sub Divisional Magistrate, Durg (City/Rural), District Durg (hereinafter referred to as ‘S.D.M.’), in Criminal Case No.241/2023, whereby the application filed by the respondent herein under Section 133 of the Cr.P.C. has been allowed and the applicant herein directed to vacate the

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suit shop within a period of seven days.

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2. Brief facts of the case, as projected by the applicant, are that respondent Ashok Kumar Gupta had filed an application (Annexure P-3) before the Rent Controlling Authority (herein after referred to as ‘the RCA’) being registered as Case No.2A/90 year 2018-19, seeking vacant possession of his shop in which the petitioner herein is in occupation of the same, on the ground of non payment of rent and for personal requirement of the respondent, which is still pending before the RCA. During the pendency of proceeding before the RCA, the respondent herein filed an application (Annexure P-5) under Section 133 of Cr.P.C. before the learned S.D.M., Durg, on the ground that the entire building is old one, the construction is of very old times, which needs demolition and the petitioner Bajranglal Sharma herein is not vacating the same, hence, the same may be got vacated. During the pendency of the proceeding under Section 133 of Cr.P.C., the Court of S.D.M., Durg, directed the police authority to submit its report, whereupon on 10.04.2023, a report (Annexure P-7) was filed. In the report filed by the respondent/landlord, it was mentioned that the condition of the building is not proper, whereas in the report filed by the applicant herein, it has been categorically stated that the shop which is to be

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got vacated is in proper condition but the learned S.D.M. has passed the impugned order dated 24.05.2023. Hence, this petition filed by the applicant.

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3. Learned counsel for the applicant submits that the impugned order is bad in law as well as on facts. The learned S.D.M. has not appreciated the facts when there are two separate and contradictory reports of the Architect filed before the Court even then without recording the evidence and without giving opportunity of cross examining the persons concerned, the final order cannot be passed. The learned S.D.M. erred in law in not appreciating the fact that the application under Section 133 of the Cr.P.C. was moved only to evict the petitioner from the suit shop. Learned counsel further submits that the proceeding in this regard has been pending before the RCA, Durg, wherein the ground of condition of the building and requirement of it’s repairing/demolition has not been taken at all. As such, it is clear that the respondent had filed the application only to evict the present applicant anyhow. Learned counsel also submits that the applicant filed reply before the learned S.D.M., Durg, categorically stating therein that the proceedings before the R.C.A., Durg, are pending for hearing. It is also clear from the document that that first a notice was sent by the Municipal Corporation, Durg, to the

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applicant on 31.10.2022. In this notice, it is mentioned that some complaint is pending but before the learned S.D.M. no such complaint was ever filed by the respondent. The notice was replied by the son of the respondent namely Abhishek Gupta on 28.11.2022 along with the report of the Architect. Prior to filing the application under Section 133 of the Cr.P.C. before the S.D.M. the Municipal Corporation, Durg gave a notice to the petitioner on 24.02.2022, in which the Municipal Corporation directed the petitioner to vacate the shop immediately. The petitioner herein replied to this notice on 16.03.2023 along with a report of Architect dated 04.03.2023, before the Municipal Corporation Durg, thereafter an application under Section 133 Cr.P.C. was moved before the S.D.M., Durg. Learnec counsel also submits that the Municipal Corporation, Durg, has not proceeded further against the petitioner but the learned S.D.M. immediately passed the order under Section 133 of Cr.P.C. The order impugned is illegal because the final order has been passed without passing any interim order in the case. There was no interim order saying that there is eminent danger if the building is not demolished. The learned S.D.M. has given much importance to the report submitted by the police. There was no sufficient material before the Court of S.D.M. to hold conclusively that the shop

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and building needed immediate demolition and the petitioner should vacate the suit shop immediately.

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It has been also argued by learned counsel that the respondent used the application under Section 133 of Cr.P.C. as tool to anyhow get the petitioner vacated from the shop fully knowing that the proceedings before the R.C.A. are pending. Therefore, the impugned order is liable to be set aside. In support of his submission, learned counsel placed reliance on the decision of Hon’ble Supreme Court in the matter of C.A. Avarachan Vs. C.V. Sreenivasan and Anr.1 and the decision of High Court of Madhya Pradesh in the matter of State of Madhya Pradesh Vs. Khizar 2 Mohammad and Ors. .

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4. Learned counsel for respondent supporting the impugned order submits that the instant petition is not maintainable in the light of provisions contained in explanation to Section 397(1) of Cr.P.C.. The petitioner without availing the remedy before the Sessions Judge has directly come before this Court and did not find any urgency. Consequently, the urgent hearing as well as the petition is liable to be dismissed. Learned counsel further submits that the petitioner has no locus to seek any direction as prayed in the light of the fact that the premises has already been

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2 1996 M.P.L.J. 1007

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1 (1996) 7SCC 71

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vacated and the caption premises is now vacant and sealed in pursuance of the order dated 24.05.2023 of the S.D.M.. Since the order impugned has already been complied with and the possession has already been taken over, therefore, no stay or interim relief in favour of the applicant can be granted. The interim relief as sought for can also not be granted in absence of any specific challenge to the notice dated 21.05.2023 and 24.02.2023. As per the report of Municipal Authority, the premises is in very bad condition and it is situated in densely populated area near a school. The premises can collapse any time which will cause loss of life. Thus, the petition being without any merit is liable to be dismissed. In support of his submission, learned counsel placed reliance on the decision of High Court of Madhya Pradesh in the matter of Shridhar Shastri V. Prakashwati3

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5. In compliance to the Court’s order dated 16.06.2023, the State has also filed its reply, which shows that in compliance of impugned order passed by the learned S.D.M., Durg, dated 24.05.2023, the proceeding for vacating the suit shop is to be taken place on 15.06.2023 at 11.00 AM. For compliance of impugned order, the Commissioner, Municipal Corporation, Durg, has issued a memo on 13.06.2023 and the proceeding for vacating the suit shop is

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to be taken place. Thereafter, a Panchnama report was

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3 1990 LawSuit (MP) 366

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drawn and as per Panchanama dated 15.06.2023 (Document B), the said premises was vacated on 15.06.2023 in presence of the officers of Municipal Corporation, Durg, and the same was got sealed.

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6. Heard learned counsel for the parties and perused the material on record.

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7. Hon’ble Apex Court in the matter of C.A. Avarachan (supra), held in para 4 as under :-

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“4. In our opinion the omission on the part of the Sub-Divisional Magistrate to draw up a preliminary order, which is a sine qua non for initiating proceedings under Section 133 of the Code of Criminal Procedure and without following the procedure provided for by Section 138 CrPC, the order made by the Sub-Divisional Magistrate on 13.01.1988 is unsustainable and is vitiated. The High Court fell in error in not properly appreciating the effect of non-compliance with the mandatory requirements of drawing up a preliminary order before proceedings under Section 133 CrPC. Neither the order of the High Court nor that of the Sub-Divisional Magistrate can therefore be sustained.”

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8. The impugned order (Annexure P/1) has been passed by the learned S.D.M., Durg, on 24.05.2023. Thereafter, immediately on 29.05.2023, the petitioner filed this petition, however, during the summer vacation, the matter could not

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be listed and when the matter was heard on 27.06.2023, till then the disputed shop was got vacated. The impugned order has been passed by the S.D.M. and Section 397(1) clearly speaks that all magistrates, whether executive or judicial, are regarded as subordinate to the sessions judge, as such, the order of the S.D.M. is amenable before the Court of Sessions but the petitioner filed this petition without availing the remedy before the Sessions Court. It is also clear from the documents on record that the suit shop got vacated in compliance of the impugned order dated 24.05.2023 passed by the learned S.D.M., Durg. The documents on record and pleadings also demonstrate that proceeding under Rent Control Act is still pending before the R.C.A. Before passing the impugned order, a notice was issued to the petitioner by the learned S.D.M., which was duly replied by him. The learned S.D.M. recorded its finding that the registered sale deed is of 21.06.1952 and suit shop is 71 years old a and passed the impugned order under Section 133 of Cr.P.C holding that there was a possibility of danger being caused to the surrounding houses and that, therefore, in public interest, it was necessary to enforce the conditional order.

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9. Section 133 of Cr.P.C. provides as under :-

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“ Section 133 in The Code Of Criminal Procedure,

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1973 - (1) Whenever a District Magistrate or a Subdivisional Magistrate or any other Executive Magistrate specially empowered in this of 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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(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

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(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

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(c) that the construction of any building, or, the disposal of any substance, as is likely to occasion configuration or explosion, should be prevented or stopped; or

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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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(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

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public; or

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(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 a time to be fixed in the order-

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(i) to remove such obstruction or nuisance; or

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(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

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(iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or

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

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

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

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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

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absolute.

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

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10. The learned S.D.M., after appreciating the documents and material brought before it by the parties, passed the impugned order according to Section 133 of Cr.P.C. In these circumstances, I am not inclined to interfere with the impugned order (Annexure P/1) passed by the learned S.D.M., Durg. However, considering the facts and circumstances of the case and further considering the fact that the proceeding of the suit shop is pending consideration before the R.C.A., it is ordered that the suit shop shall not be demolished until final order is passed by the learned R.C.A. It is made clear that the suit shop be demolished in case the final order is passed in favour of the respondent herein.

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11. Accordingly, the petition stands disposed of.

Sd/-

(Rajani Dubey)

JUDGE

pkd

Bajranglal Sharma v. Ashok Kumar Gupta

Case brief

What is this about?

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Bajranglal Sharma v. Ashok Kumar Gupta

Case brief

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