S DUTTA Vs. STATE AND SURENDRA NATH KAR

JUDGEMENT

(1.) TWO points of law arise for consideration in the present rule which was issued at the instance of the second party petitioner directed against at an order dated the 14th december 1974 passed by Sri A. K. Pattanayak, Sub divisional Magistrate, contact in Misc. Case No. 402 of 1974.

(2.) THE facts need not be set down in details excepting to the extent as necessary for appreciating the two points of law raised. The petitioner is a salaried officer of M/s. Bengal Salt Company, a public limited Company carrying on manufacturing salt from sea water from the Bay of Bengal on solar process on the saline waste land of contain Sea Coast. It is stated that the State of West Bengal participated in the share capital of the company on the basis of an agreement entered into between the company and the State since 1951. The company has in its possession about 1,600 acres of salt bearing land for concentrating sea-water and crystallization of salt and other processing and incidental purposes and the said lands include R. S. Plot Nos. 9, 15, 16 and 57 forming the subject matter at issue in the proceedings. A petition was filed by the first party before the learned Sub divisional magistrate, Contain under section 133 of the Code of Criminal Procedure and the learned Magistrate by his order dated the 7th December, 1974, went through the said petition dated 3-12-74 as also an enquiry report by the j. L. R. O. Contai, and drew up proceedings under section 133 of the code of criminal Procedure directing the second party petitioner to remove the obstruction forthwith and if he chooses so to do to appear on 20-12-74 before him and show cause as to why the order should not be made absolute. This order has been impugned and forms the subject matter of the present Rule.

(3.) MR. S. N. Gharai, Advocate (with mr. Anath Bandhu Pal, Advocate) appearing in support of the Rule raised two points of law as mentioned before. Firstly that the initiation has been bad because the learned Executive Magistrate had himself taken part in the local enquiry held on the 3rd December, 1974 and as such he should not have ultimately initiated the proceedings on the basis of the report submitted by the J. L. R. O. Ramnagar II on the order of the learned Magistrate. Secondly that the sine qua non of a proceeding under section 133 is an unlawful obstruction or nuisance that should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public. But in the present case, the same is conspicuous by its absence as on ultimate analysis the R. Rs. would show that plots Nos. 9,15, 16 and 57 are not in any way public or lawfully used by the public. Mr. Sekhar Kumar Basu, advocate, appearing for Mr. Durgapada Dutta, Advocate (with Mr. Apurbalal Basu, Advocate) on behalf of the first party-opposite parties Nos. 2 to 7, joined issue, submitting that it is rather early to quash the proceedings as only the court had only drawn up the proceedings under section 133 of the Code of Criminal Procedure and called upon the second party to remove the obstruction or to show cause. He further submitted that the objection taken on behalf of the second party petitioner are neither warranted by law nor on merits. Mr. S. P. Talukdar, Advocate appearing on behalf of the State of west Bengal, submitted that quashing is an extraordinary proceeding and should not be resorted to at the early stage but on the question of law regarding initiation, he submitted that there are some defects and it is the court who should consider the impacts thereof.