MANUEL PHILIP PERREIRA Vs. STATE

JUDGEMENT

(1.) This reference has been made by the learned Sessions Judge at Panjim with the recommendation that the order dated 31st of January 1966 passed by the Sub Divisional Magistrate, South Goa, Margao, under S.139 of the Criminal Procedure. Code (hereinafter referred to as the Code) should be quashed, the same being illegal for the reason that the facts of the case do not fall within the ambit of S. 133 of the Code.

(2.) Briefly summarised, the facts of the case are that the petitioner Manuel Philip Perreira owns a plot situate at Margao near a sharp curve on the road running from Margao to Borim. Perreira applied to the local Municipal Committee for permission to raise some building on that plot. The necessary sanction was given on 15-10-1965. Alignment of the plot was also done by the municipal authorities, and thereafter Perreira started the building operations. Some difficulties, however, cropped up. It appears that some private persons moved the President of the Municipal Committee for taking steps to demolish the building constructed by Perreira on the score that the building had obstructed the view of the drivers plying their vehicles on Margao-Borim road and so there was likelihood of accidents. The Municipal President accepted the version of the private citizens and called upon Perreira to stop further construction. The Superintending Engineer of the Public Works Department, Panjim, also approached the President of the Committee on 26-11-1965 requesting for suspension of further construction. Perreira having refused to oblige the President despite two communications from him, the Municipality revoked the sanction given to Perreira for construction of the building. This happened on 23-12-1965. Thereafter the matters moved at some speed and on 24-12-1965 the police moved the Sub-Divisional Magistrate for taking appropriate proceedings under S. 133 of the Code. The Magistrate passed the conditional order on that very date. He directed Perreira to stop further construction of the building and if he had any objection he should appear before the Magistrate on 27-12-1965. Perreira appeared before the Court and objected to the validity of the conditional order. At the same time he prayed for appointment of jury. A jury was duly constituted. The two jurors appointed by Perreira gave the opinion that the conditional order should be scrapped. Another two jurors, named by the Magistrate, were of the opinion that the conditional order issued under S. 133 of the Code was appropriate. The foreman of the jury, who too had been appointed by the Magistrate, said in his report that the order dated 24th of December 1965 issued under S. 133 of the Code should be changed so as to require Perreira to demolish the building completely. The Magistrate accepted the change suggested by the foreman and so on 31st of January 1966 he passed the following order:

(3.) Perreira felt aggrieved with the order made by the Magistrate and so filed a revision petition in the Court of the learned Sessions Judge, Panjim. After giving hearing to the petitioner and the Public Prosecutor, the Sessions Judge forwarded the revision petition to this Court with the recommendation that the same should be accepted and the order dated 31st of January 1966 be quashed.