T. Muhammed Ashraf vs The Sub-Divisional Magistrate

K. Ramakrishnan, J.—This is an application filed by the petitioner who is the petitioner in M.C.No. 136/13/D(D-9806/13) of Sub Divisional Magistrate Court, Kochi issue direction to the first respondent to implement Ext.P5 order passed by the Sub Divisional Magistrate u/s 133 of the Code of Criminal Procedure under Article 227 of the Constitution of India.

It is alleged in the petition that petitioner is residing within the jurisdiction of first respondent and the building owned and possessed by 5th respondent, is situated in a very dangerous condition as it is likely to fall down at any time causing eminent danger to the public. He filed Ext.P2 petition before the first respondent regarding this aspect and the same was forwarded to the third respondent for a report and Ext.P3 report was obtained and on that basis, first respondent has passed Ext.P5 order. But, no steps have been taken by the first respondent to implement that order. So, he has no other remedy except to approach this court seeking the following relief:

To direct the Sub Divisional Magistrate Kochi, the 1st respondent herein to dispose of Exhibit P2 and P4 within a time limit fixed by this Honourable Court.

Notice on admission was issued to 5th respondent and 5th respondent appeared through Counsel and submitted that the facts alleged in the petition are not true. Considering the nature of relief claimed in the petition, this court felt that the petition itself can be disposed of after hearing the Counsel for the petitioner, 5th respondent, the learned Government Pleader appearing for the official respondents.

The only grievance of the petitioner is that Sub Divisional Magistrate namely the first respondent who passed Ext.P5 order is not implementing the order and delaying the same and according to the petitioner, the present condition of the building causes great danger to the public at large. This was denied by the Counsel for the 5th respondent as according to the learned Counsel, the 5th respondent had already filed objection before the Sub Divisional Magistrate in the above proceedings and necessary repairs have been made to the building and as such there is no eminent danger caused as apprehended by the petitioner now and it is only a show cause notice issued and only after passing final orders, the implementation aspect will arise.

The Learned Government Pleader submitted that the proceedings are pending before the first respondent.

It is an admitted fact that 5th respondent is the owner and person in possession of the disputed building which according to the petitioner is causing eminent danger to the public which warrants the intervention of the first respondent to pass orders u/s 133 of the Code of Criminal Procedure. It is also an admitted fact that the petitioner herein filed Exhibit P2 complaint before the first respondent and after getting Exhibit P3 report from the third respondent Village Officer, the Sub Divisional Magistrate has issued Exhibit P5 conditional order u/s 133(1) of the Code of Criminal Procedure directing the 5th respondent herein to demolish and remove the building to avoid danger and nuisance to the petitioner herein within 15 days or appear before the Sub Divisional Magistrate on 27.12.2013 at 11.00 a.m. and show cause why this order should not be enforced and file objections if any. So, it is clear from this, what is passed by the court below is only a conditional order and no final orders have been passed.

The Counsel for the 5th respondent submitted that on the basis of Exhibit P5, 5th respondent appeared before the Sub Divisional Magistrate and filed objections. If that be the case, the Sub Divisional Magistrate has to conduct enquiry as provided under Sections 137 and 138 of the Code of Criminal Procedure and pass appropriate orders. Before that, it is not proper for this court to direct the first respondent to implement the order immediately as claimed by the petitioner in this petition. But, however, the prayer No. 1 directing the first respondent to dispose of the case at the earliest possible time can be granted to the petitioner as the proceedings u/s 133 of Code of Criminal Procedure has to be disposed of as expeditiously as possible as it is intended to prevent nuisance or danger being caused to the public on account of some wrongful act done by the persons alleged to have committed the wrong. So, considering the circumstances, this court feels that the petition is disposed of as follows:

The first respondent Sub Divisional Magistrate, Kochi, is directed to dispose of M.C.No. 136/13 pending before that court as expeditiously as possible at any rate within four months from the date of receipt of this order, after complying with all the procedures required to be followed u/s 137 and 138 of the Code of Criminal Procedure and considering the objections raised by the 5th respondent in the proceedings in accordance with law.

With the above direction and observation, the petition is disposed of. Office is directed to communicate this order to the first respondent immediately.