BAJRANGLAL SINGHANIA Vs. MANILAL SINGHANIA AND ANR.

JUDGEMENT

(1.) THE petitioner who figured as opposite party in a proceeding under Section 133 Cr.P.C., has approached this Court assailing an order passed under Section 138 Cr.P.C. confirming the conditional order made under Section 133 directing his vacation from the Dharmasala in question by 22 -7 -1988. The facts as appear from the records are that the present petitioner is the brother's son of the opp. party No. 1 Manilal. His grandfather Mamchand constructed the Dharmasala. It is the petitioner's case that being driven out from the family home he has been occupying some rooms in the Dharmasala since 1976 and has been residing there with his family. A petition was filed under Section 133 Cr.P.C. by the opp, party No. 1 alleging the petitioner to be creating nuisance in the Dharmasala, which is dedicated for the use of the general public, by picking up quarrel with the inmates and denying them the use of the facilities like toilets, water tap, stair case, etc, by locking them. The learned Executive Magistrate passed a conditional order under Section 133 Cr.P.C. calling upon the petitioner to remove such nuisance by vacating the Dharmasala by 22 -7 -1988 or to appear before him on that date and show cause as to why the order should not be made final. The petitioner appeared on 7 -2 -1989 and filed show cause asserting, while admitting that the building was a Dharmasala, that it was a joint family property run by the family management and that he has a right of residence there and he has been residing there since 1976. He also denied to be causing any public nuisance. On that date, the matter was posted for hearing to 28 -2 -1989. On 28 -2 -1989 the learned Magistrate adjourned the matter to 21 -3 -1989 for argument and for evidence of the first party (opp. party No. 1). On 25 -4 -1989 he examined, cross -examined and discharged the petitioner and posted the matter to 23 -5 -1989. Ultimately on 21 -8 -1990 the order was passed to the following effect ;

(2.) MR . Basu, the learned counsel appearing for the petitioner has urged, assailing the order:

(3.) THE other submission made by Mr. Basu has also great force. Section 133 Cr.P.C. in terms empowers the Magistrate to direct removal of the obstructions or the nuisances as enumerated in different clauses of Sub -section (1) of Section 133. Assertion of a right of residence is not a nuisance and the Magistrate would have no powers to direct a vacation. If while residing, a nuisance is caused otherwise or an obstruction is made otherwise, it is liable to be directed to be removed. Even if the Dharmasala is a public place and the petitioner was creating any nuisance or causing any obstruction therein like the ones complained of, the Magistrate would have been perfectly within his powers to direct stopping of such nuisances or removal of such obstructions after following the proper procedure of law, but it was not certainly within his powers to direct vacation of the petitioner. The question was considered by a decision of this Court : 31 (1965) CLT 1033 (Keshar Deo v. State of Orissa and Ors.) wherein it was held that it is not within the powers of the Magistrate exercising jurisdiction under Section 133 Cr.P.C. to ask a party to vacate a house in his possession or to remove his goods there -from. All that he is empowered under the law is to pass an order to remove or repair the building.