PRAFULLA KUMAR SAHU AND ANR. Vs. UMASUNDARI DEI

JUDGEMENT

(1.) THIS is a reference by the Additional District magistrate of Cuttack recommending the quashing of a final order under Section 137 Code of Criminal Procedure passed by Shri L.N. Biswal, Magistrate First Class. Cuttack, in a proceeding under Section 133 Code of Criminal Procedure The said proceeding was initiated on 12 -9 -1958 on a application filed by the opposite party Umasundari Dei. In that application it was alleged that a house standing on plot No. 245 within the Municipality of Cuttack was in a dilapidated condition likely to fall at any time and thereby cause injury to people passing by the side of the building. It was also alleged that the Municipality had demolished a portion of the building and that the opposite party was obstructing the Municipality from demolishing the remaining portion.

(2.) THE learned Sub -divisional Magistrate after calling for Police Report drew up a proceeding under Section 133 Code of Criminal Procedure which, after several vicissitudes, was eventually transferred to the file of Shri B.N. Biswal for disposal. That Magistrate heard two witnesses cited by the opposite party and made his order absolute.

(3.) IN my opinion this question in academic because of the admitted facts. The learned Sub -divisional Magistrate should not have drawn up a proceeding under Section 133 Code of Criminal Procedure at all. The building is admittedly situated within the Municipality of Cuttack and the Municipality had already taken some action for demolishing a portion of the structure which was found to be in a dangerous condition. Chapter XVIII of the Orissa Municipal Act contains detailed provisions dealing with the power of the Municipality to remove nuisance caused by such dilapidated buildings, and the remedy provided in that chapter should be adopted in case of failure to demolish any portion of buildings the existence of which proves dangerous to the public. The Municipality has ample powers under the Municipal Act to take appropriate action against any party refuses to comply with the requirements of this Chapter. In view of the fact that there are specific provisions in that Act itself to meet situations of this type, recourse to Section 133 Code of Criminal Procedure before a Magistrate is inappropriate. Ordinarily proceedings under Section 133 Code of Criminal Procedure should not be resorted to unless there is no other remedy available. Here as pointed out there is already such a remedy in the Municipal Act which is a special law enacted for the purpose.