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Sunderabai Vishwanath Piparwar Vs. The Sub-Divisional Magistrate, Rajura and Ors. - (High Court of Bombay) (01 Aug 2022)

Non-compliance of the mandatory requirement of drawing up a preliminary order vitiates the entire proceedings



The Petitioner is challenging the conditional order passed by the Sub-Divisional Magistrate ('SDM'), in term of Section 133 of the Code of Criminal Procedure, 1973 (CrPC), by which the Petitioner including Municipal Council, Rajura were directed to remove or demolish dilapidated building within stipulated period.

Bear reading of Section 133 of the CrPC indicates that in case of public nuisance, the first step is about passing of conditional order to remove the nuisance. In case, the said conditional order was not obeyed then the objector has to be called to appear and respond the show cause notice, as to why the order should not be made absolute. Show cause notice must be preceded with a conditional order for removal of nuisance. In case at hand, the Respondents are unable to show that the impugned order is preceded by any conditional order of SDM. The Supreme Court in case of C.A. Avarachan Vs. C.V. Sreenivasan and Another, ruled that non-compliance of the mandatory requirement of drawing up a preliminary order vitiates the entire proceedings.

The SDM though termed impugned order as a conditional order, however has not issued show cause notice to the other side for the purpose of inquiry. Section 138 of the CrPC contemplates that after passing of preliminary order followed by show cause notice, the SDM is bound to make inquiry by taking evidence in the matter. On his satisfaction, the order can be altered or made absolute. There is no record to indicate that, the show cause notice was served on any one or notified by proclamation so as to give an opportunity to the objectors. The impugned order apparently shows that no opportunity was given to the other side, as it was not preceded by the preliminary order of issuing show cause notice. Apparently, the essential requirements of Section 133 of the CrPC have not been followed. In the circumstances, impugned order and the order passed in revision would not sustain in the eyes of law.

The impugned order passed by the SDM and consequential order passed in revision are quashed and set aside. The matter is remitted back to the SDM for its fresh consideration in accordance with law. All the objections raised by the petitioner including maintainability are kept open. Petition disposed of.


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