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2011 DIGILAW 908 (GAU)

Bipin Nath v. Sitangshu Dam

2011-11-18

SWAPAN CHANDRA DAS

body2011
JUDGMENT Hon'ble Mr. Justice S.C. Das 1. A proceeding under Section 133 of Code of Criminal Procedure was drawn by Sub-Divisional Magistrate, Dharmanagar, North Tripura on a petition filed by the Petitioner (1st Party before the SDM) to adjudicate upon an allegation of public nuisance, alleged to have created by Respondent (2nd Party before SDM), by way of obstructing/occupying a public pathway/road starting from Dharmanagar-Bagbassa P.W.D. Road, leading towards Bagbassa Ward No. 1, the road measuring about 7/8 feet in breadth and 2/2.5 K Ms in length. 2. It was alleged by the Petitioner that people of the locality including the Petitioner and the Respondent were using the pathway for 40/50 years continuously and the pathway attracts the land of different persons of the locality including the land of the Respondent recorded in Khatian No. 209, plot Nos. 783 and 784. The Respondent encroached on the pathway/road putting fencing thereon and as a result the road became narrow. It was further alleged that the Respondent also obstructed the pathway throwing waste, garbage, etc. and as a result caused inconvenience and obstacle to the people at large in smooth using of the pathway. 3. The Respondent on receipt of the notice appeared before the learned SDM, Dharmanagar and submitted inter alia that there was no public pathway as alleged by the Petitioner and that the Respondent and some others, namely, Haradhan Chakraborty and Himangshu Dam, etc., contributing a part of their jote land made a pathway for use by themselves and that it was never a public pathway and there was no question of gradually encroaching the pathway by making fencing or obstructing it throwing garbage, etc. thereon. 4. Learned SDM in course of enquiry recorded evidence as adduced by both sides and also locally enquired on the issue through O/C of the P.S. and the Tehsilder of the locality and after considering the evidence and materials on record learned SDM by the impugned order dated 16.10.2003 held thus: Having found that there is no reliable evidence in support of the denial as to the existence of public right in respect of road/path in question, I proceeded as per provision of Section 133 Code of Criminal Procedure And now, on the evidence on record, I am of opinion that an unlawful obstruction has been created by the 2nd party Sri Sitangshu Dam to the people passing by the road. I am, therefore, satisfied that the order dated 28.11.2000 as originally made Under Section 133, Code of Criminal Procedure is reasonable and proper. The order dated 28.11.2002 is hereby made absolute without any modification. It is, therefore, ordered for removal of such obstructions/nuisance over the said path/road immediately for use of the people passing by the road. Any sort of hindrance/obstruction on the road be removed forthwith for making way to the people passing by the road. 5. The Respondent, herein, being aggrieved preferred a revisional application before the learned Addl. Sessions Judge, North Tripura, Dharmanagar against the order passed by the learned SDM and the learned Addl. Sessions Judge by judgment and order dated 03.02.2004 set aside the order passed by learned SDM mainly on the grounds, (i) that the alleged public pathway was not found in the settlement record and (ii) that the evidence of the Respondent (2nd Party) was not recorded first. 6. While exercising jurisdiction under Section 397 read with 400 of Code of Criminal Procedure the revisional Court was supposed to see the correctness, legality and propriety of the order and the regularity of the proceeding and it was not required at all for the revisional Court to re-appreciate the evidence unless the order passed by the Court below was found to be perverse. 7. In a proceeding under Section 133 of Code of Criminal Procedure., power is vested on the Executive Magistrates to deal with potential public nuisance which caused eminent danger to property and consequential nuisance to the public. Proceedings under Section 133 are not intended to settle private disputes but are intended to protect the public as a whole against the inconvenience. 8. In the case in hand, from the report of the O/C of the P.S. and from the report of the Tehsilder as well as from the oral evidence it has been established that there was a village pathway through private land of different persons including that of the land of the Respondent and the pathway was used by the public at large and not by the Respondent alone. While such facts are established, the order passed by the learned SDM would not have been disturbed by the revisional Court only on technical ground that the pathway was not recorded during survey and settlement operation and that the Respondent was not asked to adduce evidence at first. 9. While such facts are established, the order passed by the learned SDM would not have been disturbed by the revisional Court only on technical ground that the pathway was not recorded during survey and settlement operation and that the Respondent was not asked to adduce evidence at first. 9. In the case of Kachrulal Bhagirath Agrawal and Ors. v. State of Maharashtra and Ors., reported in (2005) 9 SCC 36 , the Hon'ble Apex Court laid down the law regarding the nature of a proceeding under Section 133 of Code of Criminal Procedure and the consequence thereof. In paragraph 10 of the judgment the Hon'ble Apex court had held thus- A proceeding under Section 133 is of a summary nature. It appears as a part of Chapter X of the Code which relates to maintenance of public order and tranquility. The Chapter has been classified into four categories. Sections129 to 132 come under the category of "unlawful assemblies". Sections 133 to 143 come under the category of "public nuisance". Section 144 comes under the category of "urgent cases of nuisance or apprehended danger" and the last category covers Sections 145 to 149 relating to "disputes as to immovable property". Nuisances are of two kinds, i.e. (i) Public; and (ii) Private. 'Public nuisance' or 'common nuisance' as defined in Section 268 of the Indian Penal Code, 1860 (in short the 'IPC') is an offence against the public either by doing a thing which tends to the annoyance of the whole community in general or by neglecting to do anything which the common good requires. It is an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity. 'Private nuisance' on the other hand, affects some individuals as distinguished from the public at large. The remedies are of two kinds - civil and criminal. The remedies under the civil law are of two kinds. One is under Section 91 of the Code of Civil Procedure, 1908 (in short 'CPC'). Under it a suit lies and the Plaintiffs need not prove that they have sustained any special damage. The second remedy is a suit by a private individual for a special damage suffered by him. There are three remedies under the criminal law. The first relates to the prosecution under Chapter XIV of IPC. Under it a suit lies and the Plaintiffs need not prove that they have sustained any special damage. The second remedy is a suit by a private individual for a special damage suffered by him. There are three remedies under the criminal law. The first relates to the prosecution under Chapter XIV of IPC. The second provides for summary proceedings under Sections133 to 144 of the Code, and the third relates to remedies under special or local laws. Sub-section (2) of Section 133 postulates that no order duly made by a Magistrate under this Section shall be called in question in any civil Court. The provisions of Chapter X of the Code should be so worked as not to become themselves a nuisance to the community at large. Although every person is bound to so use his property that it may not work legal damage or harm to his neighbour, yet on the other hand, no one has a right to interfere with the free and full enjoyment by such person of his property, except on clear and absolute proof that such use of it by him is producing such legal damage or harm. Therefore, a lawful and necessary trade ought not to be interfered with unless it is proved to be injurious to the health or physical comfort of the community. Proceedings under Section 133 are not intended to settle private disputes between different members of the public. They are in fact intended to protect the public as a whole against inconvenience. A comparison between the provisions of Section 133 and 144of the Code shows that while the former is more specific the latter is more general. Therefore, nuisance specially provided for in the former section is taken out of the general provisions of the latter section. The proceedings under Section 133 are more in the nature of civil proceedings than of criminal nature. Section 133(1)(b) relates to trade or occupation which is injurious to health or physical comfort. It deals with itself physical comfort to the community and not with those which are in themselves nuisance but in the course of which public nuisance is committed. In order to bring a trade or occupation within the operation of this Section, it must be shown that the interference with public comfort was considerable and a large section of the public was affected injuriously. In order to bring a trade or occupation within the operation of this Section, it must be shown that the interference with public comfort was considerable and a large section of the public was affected injuriously. The word 'community' in Clause (b) of Section 133(1) cannot be taken to mean residents of a particular house. It means something wider, that is, the public at large or the residents of an entire locality. The very fact that the provision occurs in a Chapter with "Public Nuisance" is indicative of this aspect. It would, however, depend on the facts situation of each case and it would be hazardous to lay down any straitjacket formula. 10. On perusal of the order passed by the learned SDM., Dharmanagar, I find that the order was passed on correct appreciation of the facts and the evidence and materials on record and interference with that order in a criminal revision petition was not at all called for and therefore the judgment and order dated 03.02.2004 passed by the learned Addl. Sessions Judge, Dharmanagar, in Criminal Revision No. 05(4) of 2003, is set aside. The order dated 16.10.2003, passed by learned Sub-Divisional Magistrate, Dharmanagar, in Case No. Misc.248/2000 under Section 133 of Code of Criminal Procedure., stands good and is upheld. 11. Send back the Lower Court's Records along with a copy of this order. 12. Criminal revision petition, is accordingly, allowed and stands disposed of.