MD YUNUS Vs. STATE OF BIHAR

JUDGEMENT

(1.) CRI . Misc. No. 7289/98 is directed against an order by which a proceeding under Section 133, Cr PC was initiated, Cr Rev. No. 358/99 is directed against the final order passed in that proceeding. The dispute in both the cases being one and the same, they are being disposed of by this common order. The relevant facts may be set out as follows. On October 1, 1997. Opposite First Party, Bindeshwari Prasad and Gopalji Prasad filed application alleging that the adjoining house belonging to. Opposite Second party, Mithilesh Kumar and Bimlesh Kumar was in dilapidated condition which could fall down any moment, thus giving rise to apprehension of injury to the local residents. On receipt of the said application, which was registered as Case No. 90/97 under Section 133, Cr PC show -cause notice was issued to said Mithilesh Kumar and Bimlesh Kumar. The petitioners herein, who are tenants in the building in question, filed intervention petition denying the allegation of the applicants regarding the dilapidated condition of the building. The Opposite Second Party filed show cause. On 8.9.1998, a proceeding under Section 133 was formally initiated. Earlier, it appears, a report had been called for from the Special Officer, Ara Municipality which was received. From the extracts of the order -sheet of the case, it appears that on 29.4.1999, the Opposite First Party i.e. the applicants of the Misc. case, filed application seeking permission to withdraw the case which was objected to by the Opposite Second Party. On 8.6.1999, the withdrawal petition was rejected and the final order was passed. The Magistrate directed the Opposite Second Party to get the building demolished. It may be mentioned here that before the said order was passed, neither party led any evidence. The order was passed on the basis of the report submitted by the Special Officer vide his letter dated 19.3.1998 and another report of the Pleader Commissioner.

(2.) THE case of the petitioners herein is that they are tenants in the building since 30.6.1980, doing business in the sale of footwear therein. The Opposite Second Party who are the owners of the building, filed title suit No. 265/83 for their eviction on the ground of default. The suit was dismissed on 19.3.1987. The appeal being title appeal No. 446/87 was also dismissed on 29.7.1989. The Opposite Second Party preferred Second Appeal No. 460/89 which too was dismissed on 29.9.1997. After the Opposite Second Party failed to obtain a favourable order for eviction of the petitioners from the building, they set up the Opposite First Party and got the aforesaid application under Section 133, Cr PC filed through them.

(3.) AT this stage, the relevant provisions regarding &aposPublic Nuisances&apos occurring in Sub - Chapter B of Chapter X of the Cr PC may briefly be noticed as hereunder :