Case Note & Summary
The matter arose from a criminal application filed before the Nagpur Bench of the Bombay High Court challenging an order passed by the Tahsildar, Hinganghat, under Section 133 of the Code of Criminal Procedure, 1973, directing the demolition of a structure in which the applicants claimed tenancy rights. The structure belonged to respondent No.3, who was the owner. The dispute also involved the Chief Officer of the Municipal Council, Hinganghat, which had issued a notice under Section 195 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, requiring demolition of the dilapidated structure. The High Court heard the application finally, reserved judgment on August 10, 2021, and pronounced it on September 3, 2021, but the provided excerpt does not include the final operative direction. The factual background showed that on October 27, 2010, the Municipal Council issued a notice to respondent No.3, the owner, to demolish the structure within seven days because it was dilapidated and posed a risk of loss of life and financial loss. On August 2, 2011, respondent No.3 applied to the Tahsildar for permission to demolish, leading the Tahsildar to initiate proceedings under Section 133 CrPC. The Tahsildar passed an order on October 15, 2011, directing removal/demolition. The applicants challenged that order in revision before the Sessions Court, which partly allowed the revision on November 1, 2011, holding that the affected persons were not given individual notice before the demolition order. The Sessions Court set aside the order and remanded the matter for fresh decision after hearing all concerned. After remand, a spot inspection was carried out, and a report dated February 7, 2015, prepared in the presence of the Naib-Tahsildar, applicants, respondent No.3, and the Municipal Council Engineer, recorded that the structure was highly dilapidated, parts had fallen, and it posed a public nuisance. The Tahsildar then heard the parties and again directed removal/demolition. The applicants filed a second revision, which the Sessions Court dismissed on April 26, 2019. Aggrieved, the applicants filed the present criminal application. On August 7, 2019, the High Court admitted the application and granted interim stay, recording the applicants' undertaking that they would be responsible for any loss of life. The legal issues raised were whether the conditions precedent for exercising power under Section 133 CrPC existed; whether the proceedings were a misuse of criminal process by the landlord to settle a civil dispute of tenancy and dispossession; and whether the spot inspection report could be relied upon. The applicants argued that the dispute was civil in nature and that the landlord sought to evict them under the guise of Section 133; they rejected the spot inspection report and contended that parts of the structure were still in use. Respondent No.3 and the Tahsildar supported the orders, arguing that the spot inspection report confirmed the danger. Respondent No.2 Municipal Council, through counsel, submitted that private disputes could not be resolved under Section 133 CrPC and that respondent No.3 desired to dispossess the applicants, though this was contrary to the Municipal Council's own notices. The Court considered Section 133 CrPC, which empowers a Magistrate to make a conditional order for removal of nuisance when a building is likely to fall and cause injury. The Court referred to the Supreme Court decision in Kachrulal Bhagirath Agrawal v. State of Maharashtra, which held that Section 133 proceedings are summary in nature and form part of Chapter X CrPC relating to public order, and that public nuisance is distinct from private nuisance. The available excerpt ends before the High Court's final ruling on the merits, so the final decision and operative relief are not recorded in the provided text.
Headnote
A) Criminal Procedure - Public Nuisance - Conditional Order for Removal of Nuisance - Code of Criminal Procedure, 1973, Section 133 - Section 133 empowers an Executive Magistrate to pass a conditional order if any building, tent or structure is in such a condition that it is likely to fall and cause injury to persons living or carrying on business in the neighbourhood or passing by, and removal, repair or support is necessary. The provision is summary in nature and falls under Chapter X of the Code relating to maintenance of public order and tranquillity. Held that a proceeding under Section 133 is of a summary nature, and remedies for nuisance include civil remedies under Section 91 of the Code of Civil Procedure, 1908, and criminal remedies under Chapter XIV of the Indian Penal Code, 1860, as well as summary proceedings under Sections 133 to 144 CrPC (Paras 13-14). B) Criminal Procedure - Conditions Precedent - Misuse of Section 133 CrPC for Civil Dispute - Code of Criminal Procedure, 1973, Section 133 - Applicants contended that the conditions precedent for exercise of power under Section 133 CrPC were absent because landlord respondent No.3 sought to use the criminal process to dispossess tenants in a civil landlord-tenant dispute; respondent No.3 and Tahsildar contended that the spot inspection report confirmed the dilapidated condition and the order was proper. The High Court noted the rival submissions and the settled position that private disputes cannot be settled under Section 133 CrPC, but the available excerpt does not record the final determination on this issue (Paras 9-12). C) Criminal Procedure - Natural Justice - Remand by Revisional Court - Notice and Hearing - Code of Criminal Procedure, 1973, Section 133 - The first revision application was partly allowed by the Sessions Court because although a public notice was issued before the demolition order, the affected persons were not individually put to notice when the order of demolition was issued. The Sessions Court set aside the order and remanded the matter for fresh decision after giving opportunity of hearing to all concerned (Para 4). D) Evidence - Spot Inspection Report - Dilapidated Condition of Structure - Code of Criminal Procedure, 1973, Section 133 - After remand, a fresh spot inspection was conducted in the presence of the Naib-Tahsildar, applicants, respondent No.3 and the Engineer of Municipal Council. The report dated 07/02/2015 recorded that the structure was highly dilapidated, parts had already fallen, and it would be a nuisance to the public. The Tahsildar relied on this report to direct removal/demolition, while the applicants did not accept the report (Paras 5-6). E) Criminal Procedure - Interim Relief - Stay of Demolition and Undertaking - Code of Criminal Procedure, 1973, Section 133 - On 07/08/2019, the High Court admitted the application and granted interim stay of the impugned orders, recording the applicants' undertaking that they would be responsible for any loss of life. The application was then taken up for final hearing (Para 8).
Issue of Consideration
Whether the conditions precedent for exercising power under Section 133 CrPC were present; whether the proceedings under Section 133 CrPC were misused by the landlord to settle a civil tenancy dispute and dispossess the applicants; whether the spot inspection report could be relied upon to establish the dangerous condition of the structure.
Law Points
- Section 133 CrPC is summary in nature and falls under Chapter X CrPC for maintenance of public order and tranquillity
- Section 133 CrPC empowers Executive Magistrate to pass conditional order if building is likely to fall and cause injury
- public nuisance is distinct from private nuisance
- remedies for nuisance include civil suit under Section 91 CPC and criminal prosecution under Chapter XIV IPC
- private civil disputes cannot be resolved through Section 133 CrPC
- spot inspection report can establish dilapidated condition if prepared in presence of parties.
