DATTATRAYA NAGAPPA SHETTY ANKOLEKAR Vs. STATE OF MYSORE

JUDGEMENT

(1.) This is an application in revision to set aside the order purporting to have been passed under S.137 Crl.P.C. The petitioner, Dattatreya Nagappa Shetty is the owner of Municipal house bearing 1297 situate in the main bazaar, Karwar Town. Some parts of this building are leased out to the tenants on monthly rent. The Police of Karwar made a report to the Sub Divisional Magistrate, stating that the house belonging to the petitioner was extremely dilapidated and was likely to fall and cause injury to the persons living in the neighbourhood or cause injury to persons carrying on business in the neighbourhood or passing by, etc. The Divisional Magistrate passed a preliminary order which reads as follows:

(2.) Proceedings under S.133 Crl.P.C. are not intended to settle private disputes between the two members of the public. But on the other hand, it is intended to protect the public as a whole against inconvenience. The complainant or the informant has no rights in the matter and is not a person who could be described as a party to the proceedings under this section. The Magistrate therefore should bear in mind that he is supposed to be acting purely in the interests of the public and should be on his guard against any tendency tc rse S.133 as a substitute for litigation in the Civil Courts in order to secure settlement of a private dispute or for the purpose of establishing the title of a particular individual.

(3.) Since there was a danger to the neigbours or to persons living in the building, the conditions of S.133 are fulfilled and such dangerous structure can even be called public nuisance. If the building is standing by the side of a road, as in this case, the Magistrate gets jurisdiction to order the owner of the building to demolish it if it is in a dilapidated condition and if it is not demolished there would be a danger to the persons living in the neighbourhood or passing by the side of it. There is no dispute in this case that the building is in such a condition that if it is not demolished, there would be a danger and cause injury to the neighbours and also persons passing by it. Therefore the Sub-Divisional Magistrate was well within his right in passing the first order. What is challenged in this petition is that the Sub-Divisional Magistrate had no authority or power to direct the petitioner to reconstruct the building and then put the same in the possession of the tenants who were in occupation. As already pointed out, the Magistrate has no jurisdiction to deal with the persons who are living inside the building. Under S.133 of the Code, the only power given to the Magistrate is to order the removal. There is no provision for ordering the reconstruction of the house which is ordered to be demolished and put back the tenarts in the reconstructed premises, under this section. The Sub-Divisional Magistrate seems to have mistaken the willingness of the petitioner to demolish the building if tenants vacated the premises, on the assurance made by the petitioner that he would put back the tenants after reconstruction. Even if the petitioner made such a statement, the Sub-Divisional Magistrate does not get jurisdiction to direct the petitioner to reconstruct and put back the tenants in the reconstructed premises because the Sub-Divisional Magistrate cannot alter or vary the preliminary order made in this case. That is not the purpose and object of S.133, Crl.P.C. The Sub-Divisional Magistrate on the facts of this case was well within his rights in directing the petitioner to repair the building with a view to make it safe for the persons who are living nearby and persons who pass by it. For this purpose, he could direct to demolish a portion or whole of the building. If it is demolished it becomes safe to every body. He cannot direct to reconstruct it and order restoration of status quo ante. The order of the Sub-Divisional Magistrate directing the petitioner to put back the tenants in the repaired premises is without jurisdiction. Therefore, I quash that part of the order and the other part of the order requiring the petitioner to demolish the dilapidated portion or whole ot the house as the case may be or to repair the house to avoid injury to the persons living in the neighbourhood and also to the persons passing by the road, is affirmed. It is imperative for the petitioner to demolish the dilapidated portion or the whole of it as the case may be but it is upto him to reconstruct it.