SRABAN KUMAR SUR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS revisional application under Article 227 of the Constitution is directed against the order dated 5. 3. 2007 passed by the learned Sub-Divisional magistrate, 1st Court, Howrah in M. P. Case No. 759/06 in a proceeding under section 133 of the Cr. PC directing removal of all unlawful obstructions on the g. T. Road. The learned Executive Magistrate by the impugned order dated 5. 3. 07 directed the Executive Engineer, PWD, Howrah Division to take immediate action to remove all such unlawful obstructions from the G. T. Road. Thereafter the Assistant Engineer, PWD by Memo No. 266 dated 20. 3. 07 informed Bina Sur to remove all unlawful obstractions with encroachment of holding No. 286 of Mouja with JL No Belur- 15 in respect of 510. 00 sft. After receiving such memo of the Assistant Engineer, PWD, the petitioner moved this Court in this revisional application praying for setting aside the order of the learned Executive Magistrate on the ground of illegality.

(2.) MR. D. N. Batabyal, learned Advocate for the petitioner submitted that entire proceeding started by the learned Executive Magistrate is vitiated by illegality as the impugned order dated 5. 3. 07 was passed by the learned magistrate against Bina Sur who was dead by the time when the order was passed. Bina Sur expired on 19. 6. 06 whereas learned Magistrate passed the order on 5. 3. 07 without impleading the legal heirs or the legal representatives of deceased Bina Sur. The petitioner informed the Magistrate about the fact of death of Bina Sur, but the learned Magistrate paid no heed and did not hear the petitioner nor impleaded the petitioner or other legal heirs of deceased bina Sur into the proceeding. Mr. Batabyal further contended that the Bally municipality issued tax payment notices upon the heirs of Bina Sur which shows that names of legal heirs of Bina Sur were mutated in the assessment registrar of Bally Municipality and the legal heirs also paid tax to the municipality.

(3.) MR. Batabyal further submitted that it was a proceeding under section 133 of the Cr. PC and not a proceeding under the West Bengal Highways Act. Initially on 9. 3. 06 a notice was issued under section 10 (2) of the West Bengal highways Act against Bina Sur for removal of obstructions from the G. T. Road. Subsequently the learned Magistrate passed the order under section 133 of the cr. PC without following the legal procedures which are required to be observed and followed in a proceeding under section 133 of the Cr. PC. The impugned order fails to reflect the preliminary and primary satisfaction of the learned magistrate directing alleged removal of encroachment. In a matter of urgency preliminary order of removal may be made but, the learned Magistrate has to disclose his satisfaction into the matter before passing such preliminary order of removal. The impugned order was capricious and fails to reflect the proper mind of the Magistrate into the matter. It is also evident that the learned magistrate confused himself into the matter and neither properly followed provisions of section 133 of the Cr. PC nor proceeded in accordance with the provisions of the West Bengal Highways Act. The CS and RS record-of-rights reveal that the breadth of the G. T. Road recorded therein are intact at present and there was no encroachment on the G. T. Road to dimisish the breadth of the g. T. Road. There was jurisdictional error by the learned Magistrate as previously notice was issued under section 10 (2) of the Highways Act but, subsequently the proceeding under section 133 of the Cr. PC was started and the impugned order for alleged removal of obstruction was passed under section 133 of the Cr. PC against a dead person. The order of the learned Magistrate accordingly was not in accordance with law and it should be set aside.