T P RAJEEVAN Vs. SUB DIVISIONAL MAGISTRATE

JUDGEMENT

(1.) Unusually this petition has been filed invoking the inherent powers as well as the revisional jurisdiction of this Court jointly. The subject-matter of this petition is an order which is neither fish nor flesh. It was passed by the Sub Divisional Magistrate, Tellicherry on 26-9-1984 on the application of the second respondent without specifying the provision of law under which the action was taken. The authority which empowered such an action is also not indicated in the order. Presumably, the order seems to have been issued under the provisions of Ss. 133, 137 and 138 of the Cr. P. C. and the order reads thus:

(2.) What appears from the records is that the building bearing door No. 3/385 of the Kadirur Panchayat belongs to the second respondent. He retained one room with him and rented out the hall along with another room to the petitioner for housing a tutorial college by name "Sarathi". In 1983, the second respondent made an attempt to get a license for installing a stone crusher near the building. The attempt is alleged to have failed due to objection from various sources. The case of the petitioner is that the second respondent suspected the hands of the petitioner behind it. It is said that a legal war between the second respondent and the petitioner followed. The second respondent is alleged to have made some attempts to evict the petitioner, but failed It is further stated that the second respondent moved the predecessor of the Sub Divisional Magistrate, who issued the impugned order for invoking the provisions of S. 133 of the Cr. P. C. and in that attempt also he failed. The another petition is alleged to have been filed before the first respondent. On that petition the first respondent obtained reports from his subordinates and passed the impugned order without notice to the petitioner.

(3.) Jurisdiction seems to have been invoked initially under S.133(1)(d) of the Cr. P. C. But the order appears to have been passed as a final order under S. 138(2). For the purpose of invoking such jurisdiction there are three stages. The first stage is under S. 133(1). That could be said to be an ex parte stage where the person against whom the conditional order is proposed to be made is nowhere in the picture. It appears that the learned Sub-Divisional Magistrate assumed jurisdiction on his satisfaction by the evidence collected by him that the building is in such a condition that it requires repairs, otherwise it is in danger of falling down at any moment. In order to have such a satisfaction for the purpose of issuing a conditional order the Magistrate may rely on any police report or other information and the consequent enquiries made by him. On such enquiry, he must get the satisfaction that the building is in such a condition as contemplated in S.133(1)(d). It is on such satisfaction that the Magistrate will have to pass a conditional order requiring the responsible person, within a time to be fixed in the order, to remove, repair or support such building. If the person objects to do so, the Magistrate will have to direct him to appear at a time and place fixed in the order and show cause why the order should not be made absolute.