Judgment:
ORDER
K.T. Thomas, J.
1. The owner of a building situated at Viyyur (Trichur) filed a petition before the Sub Divisional Magistrate (Executive), Trichur complaining that his building is in a very dangerous condition and is likely to fall down. Upon the said petition, proceedings have been initiated by the Sub Divisional Magistrate under Section 133 of the Cr. P.C. (for short 'the Code'). He obtained a report from the police in regard to the allegations in the petition. On 20-11-1984 the Sub Divisional Magistrate passed a conditional order calling upon the owner of the building as well as the occupants thereof to pull down the entire building immediately and if they object in doing so, they were directed to appear before him to show cause why the order should not be made absolute. One of the occupants, the 2nd respondent herein, filed objections before the Sub Divisional Magistrate, in which among other things, he contended that the owner of the building has been trying to evict the tenants without recourse to the Rent Control Law and that the petition filed by him is only a ruse to throw him out of the building. After taking evidence the Sub Divisional Magistrate passed final orders on 16-5-1986, making the conditional order absolute. The occupants of the building were directed to vacate the premises within three weeks from the date of receipt of the said order to facilitate the owner to pull down the building.
2. Aggrieved by the said order, the 2nd respondent filed a revision petition before the Sessions Court, 'Trichur. The learned Sessions Judge set aside the order of the Sub Divisional Magistrate, and hence the owner of the building has filed this Criminal Revision petition challenging the order of the Sessions Court.
3. The learned Sessions Judge, without considering the evidence, took the view that the Sub Divisional Magistrate should not have initiated proceedings under Section 133 of the Code on account of the non obstante clause in Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 196.5 (for short 'the Act'). The learned Counsel for the petitioner contended that the above view' of the learned Sessions Judge is apparently wrong.
4. Section 11 of the Act is not intended to be an exception to Section 133(d) of the Code. What is inhibited in Section 11 of the Act is only eviction of the tenant except in accordance with the provisions contained therein. Section 133 of the Code is intended to meet an entirely different contingency, though sometimes the occupants of the building including the tenants may have to vacate the building consequently. The learned Sessions Judge declined to go into the merits of the case only because the owner of the building did not resort to the provisions of the Act. The relevant portion of the impugned order reads thus : 'I do not intend to go to the merit of the case as to whether the building requires immediate demolition as that is a matter to be considered by the Rent Controller'.
5. It is contended that by refusing to go into the merits of the matter, the learned Sessions Judge has abdicated his powers under Section 397 of the Code. Section 11 of the Act does not contemplate a contingency where a building is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by. It is true that under Section 11(4)(iv) of the Act, a landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building, 'if the building is in such a condition that it needs reconstruction'. This is subject to a few other conditions, such as bona fide requirement of the landlord to re-construct the building, the availability of a plan and licence with the landlord to put up the new edifice, his ability to rebuild and that the proposal of the landlord to reconstruct the building should not be a pretext for eviction. True that Section 11(1) of the Act starts with the non obstante clause referred to by the learned Sessions Judge and it reads thus:
11(1). Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act.
A reading of the above will show without doubt that what is prohibited therein is only eviction of a tenant except in the manner provided thereunder. If a landlord does not propose to evict the tenant, Section 11 of the Act does not come into play. But if the building has reached such a condition as it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, resort to the provisions in Section 133 of the Code can be made, albeit Section 11 of the Act. Section 11(4)(iv) of the Act and Section 133(d) of the Code are intended to be involved in entirely different circumstances. The consideration for passing an order under Section 133(d) of the Code is substantially different from the consideration for passing an order of eviction under Section 11(4)(iv) of the Act. Therefore the non obstante clause in Section 11( 1) of the Act does not oust the jurisdiction of the Magistrate under Section 133 of the Code.
6. In Suresh Prakash v. Krishna Swarup 1976 Cri LJ 462 a single Judge of the Allahabad High Court had occasion to consider a similar situation. It was argued in that case that recourse to Section 133 of the Code cannot be permitted in view of the provisions in U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 and the building can be got demolished under the provisions of that Act. After referring to the case law on the subject, the learned Judge held that the provisions of the said Act do not bar the proceedings under Section 133 of the Code. In Abdul Rasheed v. State of U.P. 1970 All Cri C 301 Seth J. has held that proceedings under Section 133 of the Code are independent of civil proceedings and the former need not be dropped simply because civil proceedings would have been resorted to. The said decisions, thus lend support to the view which I have taken.
7. The learned Sessions Judge has obviously gone wrong in refusing to consider the revision on merits. The order passed by him, therefore cannot be sustained. I, therefore, allow the criminal revision petition and set aside the order impugned. The case is sent back to the Sessions Court for fresh disposal on merits.
8. I direct the revision to be disposed of within one month from the date of receipt of the records in this case. Despatch the records forthwith.