ISMAIL Vs. KUNJAN MARAKKAR

JUDGEMENT

(1.) Building bearing No. 1/375 of Edavanakkad Panchayat belongs to the third respondent under whom the petitioner is a tenant who is running a flour mill in the building. On 6-5-1996, the landlord issued Annexure A1 notice to the petitioner asking him to vacate the building on the ground of bona fide necessity. It is stated in the notice that the building is in a dilapidated condition and beyond repairs. The petitioner gave Annexure A2 reply in which it is stated that the building could be repaired and that the request made by him to the landlord for effecting repairs was not heeded by her. The petitioner also offered to carry out the repairs himself. Thereafter, the third respondent filed a suit O. S. No. 316 of 1997 in the vacation court and obtained an order of temporary injunction against the petitioner restraining him from effecting repairs to the building in question. On appearance of the petitioner, the order of injunction was modified and he was permitted to carry out the repairs after obtaining an order from the Accommodation Controller. The petitioner approached the Accommodation Controller an obtained an order directing the third respondent to carry out the repairs of the building. As per order in A.C.P. No. 5 of 1997, the petitioner was also permitted to carry out the repairs in case the third respondent did not carry out the repairs within the time stipulated in the order. The order of the Accommodation Controller was challenged before this court in O. P. No. 1450 of 1998 which was dismissed, confirming the order in A.C.P. No. 5 of 1997. Thereafter the petitioner effected repairs to the building. The suit filed by the third respondent was also later dismissed.

(2.) Respondents 1 and 2 filed an application before the Sub Divisional Magistrate, Fort Cochin complaining that the building occupied by the petitioner is in a dilapidated state which poses danger to the public and so the same should be demolished. The Sub Divisional Magistrate as per Annexure A5 order directed the respondents therein who are the third respondent and the petitioner herein to demolish the said building within three days from the date of receipt of the order and to appear before him on 10-6-1997 to show cause why the order should not be made absolute. The order is purportedly passed under S.133 CrPC. Annexure A5 order is not in accordance with law. If the Sub Divisional Magistrate is satisfied that the building is in a dilapidated condition, initially he can only pass a conditional order to show cause why the order should not be made absolute. Instead what is done in the present case, is that, as could be seen from Annexure A5, a direction was given to the respondents to demolish the building and then to show cause why the order should not be made absolute. After demolishing the building, it is not known why the respondents therein should show cause as to why the order should not be made absolute. Hence, the order which is not passed in accordance with the provisions of S.133 CrPC. is liable to be quashed.

(3.) Further, it is clear from the background of the case that the Sub Divisional Magistrate has no jurisdiction to interfere in the matter as the Accommodation Controller and the civil court were in seisin of the matter and orders were passed by those authorities. The petitioner was permitted to carry out the repairs which he did. Thereafter the building cannot be said to be in a dilapidated condition and hence it requires no demolishing. When the civil court and the statutory authority under the Kerala Buildings (Lease and Rent Control) Act were in seisin of the matter, the Sub Divisional Magistrate should not have interfered in the dispute which is absolutely civil in nature. In that view of the matter also, the impugned order is liable to be quashed.