IRA GANGULI Vs. KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) These two revisional applications are directed against the order dated 31st May, 2004 passed by the learned Executive Magistrate, 1st Court, Alipore in connection with M.P. Case No. 538/89 under section 133 of the Cr. PC and also against the order dated 29th July, 2004 passed by the said Executive Magistrate refusing to recall or modify the order dated 31st May, 2004 and against the order dated 30th March, 2005 passed by the learned Additional Sessions Judge, Fast Track Court No. IV, Alipore in Criminal Revision No. 454/04 thereby affirming the order dated 31st May, 2004 passed by the learned Executive Magistrate in the aforesaid M.P. case. Being aggrieved by the order of the learned Executive Magistrate dated 31st May, 2004 and July 29, 2004 the petitioner Smt. Ira Ganguly has preferred C.R.R. No. 2080/04. The petitioner of C.R.R. No. 1068/05 is the husband of the petitioner of C.R.R. No. 2080/04, and the petitioner of C.R.R. No. 1068/05 has preferred the revisional application against order of the learned Additional Sessions Judge affirming the order of the Executive Magistrate. As the factual matrix and points of law involved in these revisional applications are identical, I intend to dispose of both the revisional applications by this common judgment and order.

(2.) The learned Advocate for the petitioners submitted that plot No. 45A of Jainuddin Mistri Lane was purchased by Smt. Ira Ganguly, the petitioner of C.R.R. No. 2080/04. The Calcutta Corporation had mutated the said plot in her name in the year 1988. Before that, the Land and Land Reforms Department of the Government of West Bengal by letter dated 29th June 1985 informed one Pradip Kumar Das, the vendor of Ira Ganguly that premises No. 45, Jainuddin Mistri Lane is not affected under any land acquisition proceeding. The Calcutta Improvement Trust by letter dated 26.12.85 informed her that property of 45, Jainuddin Mistri Lane is not allocated at present by any published/sanctioned scheme/alignment of the trust. The plot 45 was subsequently divided into plots 45A and 45B and Ira Ganguly is owner of plot 45A. Strange, the proceeding under section 133 of the Cr. PC in M.P. case No. 538/89 was started by CMDA now Kolkata Improvement Trust against Monojit Ganguly in respect of 45, Jainuddin Mistri Lane. The proceeding under section 133 of the Cr. PC was thus started against a person who had no connection at all with the plot 45 or 45A of Jainuddin Mistri Lane. When Ira Ganguly came to know about starting of the proceeding under section 133 of the Cr. PC she applied for impleading her a party in the said proceeding, but, the learned Executive Magistrate by order dated July 29, 2004 rejected her prayer and refused to recall or modify the order dated 31st May, 2004.

(3.) Mr. Abhijit Chottopadhayay for the petitioner next contended that before the learned Executive Magistrate evidence were not recorded. The learned Magistrate did not follow the provisions of sections 137 and 138 of the Cr. PC and in the impugned order dated 31st May, 2004 the learned Magistrate did not discuss the evidence at all. The learned Magistrate did not give any direction for show -cause and there was no evidence and no hearing and, without following the essential requirements of a proceeding under section 133 of the Cr. PC passed an order for removal of building constructed by Ira Ganguly. The learned Additional Sessions Judge did not apply his mind at all into the matter and did not take pains to go through the papers and documents for ascertaining us to which plot was involved in the proceeding and who was owner of the same. Entire dispute was of civil nature and settled principle of law is that provisions of section 133 of the Cr. PC cannot be invoked in matters of civil dispute. The plots 44/1, 44/1A and petitioner's land being plot No. 45A of Jainuddin Mistri Lane are separate. Neither Monojit Ganguly nor his wife Ira Ganguly are owners of plot 44/1A but, the learned Executive Magistrate in spite of that started the proceeding against Monojit Ganguly.