BALKEES Vs. REVENUE DIVISONAL OFFICER

JUDGEMENT

(1.) The Revision petitioner is the counter petitioner in MC. No. 80/12/D(5767/12/D) on the files of the Sub Divisional Magistrate, Fort Kochi. The above petition was filed by the 3rd respondent herein under S. 133 of the Code of Criminal Procedure seeking a direction to demolish the structure which was allegedly constructed by the revision petitioner in a manner causing danger and nuisance to the 3rd respondent and her family members. On the above application, the first respondent conducted an enquiry through the Village Officer and on the basis of the site inspection report and report of the Village Officer, passed an order under S. 133 of the Cr.P.C. directing the revision petitioner to stop the construction of the building at once or to appear the court on 10.8.2012 and show cause why this order should not be enforced. The revision petitioner has entered appearance and trial proceeded with trial. After trial, the first respondent made the provisional order absolute with modification and thereby directed the revision petitioner to demolish the illegally constructed wall within 15 days from the date of receipt of the impugned order. The said order is under challenge in this Revision Petition. It is the third respondent's case that the revision petitioner has resorted to unauthorised construction by making construction of the building close to the building of the third respondent, on the top of the northern wall of her house in violation of the Kerala Municipality Building Rules causing danger and nuisance to the third respondent's life and property. According to her, the house is an asbestos sheeted small house. So during rainy season there is every likelihood of leaking water inside her house.

(2.) The learned counsel for the revision petitioner submits that in view of the averments in the complaint the petition itself is not maintainable under S. 133 Cr.P.C. and the Sub Divisional Magistrate has no jurisdiction to entertain the petition and pass such an order. The first respondent has wrongly invoked the powers under S. 133 Cr.P.C. to decide a dispute between two private parties involving their private rights. In short, the impugned order is one passed without jurisdiction. This is the argument advanced by the learned counsel for the Revision petitioner.

(3.) Per contra, the learned counsel appearing for the third respondent submits that the averments in the complaint are sufficient to invoke the jurisdiction under S. 133 Cr.P.C. and the impugned order passed by the first respondent is legally sustainable. The counsel further submits that the construction of the building on the top of the wall of the 3rd respondent's house may cause imminent danger and nuisance to the third respondent's life and property. Therefore, if there is any likelihood of causing danger or nuisance, certainly the petition will come under public nuisance and thereby within the jurisdiction provided under S. 133 of the Cr.P.C.