VASANT MANGA MAHAJAN Vs. BABURAO BHIKANNA NAIDU

JUDGEMENT

(1.) AN order passed by the Sub-Divisional Magistrate of Jalgaon under Section 138 read with Section 141 of Cr, P. C, 1973, is challenged in this petition by ten petitioners. They are the tenants of house No. 66 situated at Polan Peth, Jalgaon and owned by the first respondent in this petition (hereinafter referred to as "the respondent" ). According to the petitioners, the respondent served upon them a notice on 9th July 1970 asking them to vacate but they did not comply with this notice. On 19th July 1974 the Chief Officer of Municipal Council of Jalgaon served a notice on the respondent asking him to pull down the building on the ground that it was dilapidated and it was in a dangerous condition. No action was taken immediately by the respondent on this notice issued by the Municipality, but nearly after two years he made an application to the District Magistrate of Jalgaon for taking action under Section 133 of the Cr. P. C. In due course this application was forwarded to the Sub-Divisional Magistrate for action and he by his judgment and order dated 14th Sept. 1976 passed what has been described as a conditional order under Section 133 of the Code. Several steps have been taken during the course of the enquiry conducted by the Sub-Divisional Magistrate, but I will refer only to those which are strictly relevant for I ho point? arising in this petition.

(2.) ON 30th Nov. 197g the petitioners made an application to the learned Sub-Divisional Magistrate asking for permission to lead evidence in the matter. In that application they had specifically mentioned that they want to examine their engineer, one Menghani whose evidence was to be recorded. The learned Sub-Divisional Magistrate on the same day rejected this application by holding that there was no need to give oral evidence and instead affidavits may be filed. Affidavits indeed were filed thereafter including that of the engineer who was otherwise to be examined by the petitioners. Little later on 24th Dec. 1976 the petitioners made an application for issuing witness summonses to two engineers, one of whom was Menghani. The respondent also applied for witness summons to some witnesses including Joshi who was also an engineer. Though these two applications were granted, those witnesses were not examined for what reasons, it is not clear from the record. I have already mentioned above, one Menghani was an Engineer who was to be examined by the petitioners and he had made an affidavit pursuant to the order of the learned Magistrate. On 11th April 1977 the respondent made an application to the Magistrate requesting him to call for the remarks of the Executive Engineer on Menghani's affidavit. Accordingly a requisition was sent by the Court to the Executive Engineer.

(3.) FROM the report which has been sent by the Executive Engineer to the Sub-Divisional Magistrate, one can infer that the Executive Engineer had deputed one Deputy Engineer to inspect the building. But it is not clear whether he had submitted any particular report to the Executive Engineer and if so, what that report contains. The report dated 23rd Jan. 1978 sent by the Executive Engineer himself mentions that "the following remarks are offered on the affidavit and the plan by the local Architect Shri Menghani". From this it is not clear at least to me whether the remarks contained in this report were those of the Deputy Engineer or were of the Executive Engineer signing this document dated 23rd Jan. 1978. The learned Magistrate relied upon this report of the Executive Engineer and came to the conclusion that the building was in dangerous condition and all the walls of the building should be removed without any delay. This he did by his judgment and order dated 25th Sept. 1978. It is this order of the Magistrate that is impugned in this present revision application which has been supported before me by the learned Advocate Mr. C. A. Phadkar.