BEJAY KRISHNA GOSWAMI Vs. PROVASH RANJAN GOSWAMI

JUDGEMENT

(1.) This Rule which was issued at the instance of the second party to a proceeding under Section 133 of the Code of Criminal Procedure, is directed against an order dated 13-12-1957 passed by Shri S.N.Chakravarty, Magistrate First Class, Burdwan, by which he directed that certain encroachments said to have been caused by the petitioner should be removed.

(2.) The matter in controversy between the parties arose in the following way. The petitioner owns and possesses a tank named 'Bara Tal-bona' which is situated at village Koyor and is recorded in settlement Khatian as Dag No. 2612. A village public road runs from Koyor Railway station and passes by the adjoining east and south of the tank. Two roads recorded as public roads in the settlement khatian as Dag Nos. 673 and 1973 mark the eastern and southern boundaries of this tank. The opposite parties who claim to represent the inhabitants of this village allege that the petitioner in the month of June, 1953 encroached upon the public road with the adjoining east and south of the tank by placing earth on portion of the road running along the two banks. Thinking that the right of the public to pass along the road was being interfered with by the alleged encroachment on the path way some villagers made a verbal complaint to the President of the Local Union Board who, however, took no notice of this matter. Therefore, towards the close of January 1954 some villagers sent a written complaint to the Engineer. District Board, Burdwan about this alleged encroachment, the District Board being recorded as the owner of the roads. It appears that the Sub-Overseer of the District Board reported that there was some encroachment but the President of the local Union Board, being requested to take action remained inactive and ignored the request until a second request was made. This time the Surveyor to the District Board with the help of the Sub-Overseer surveyed the bank and the roads and reported that there was an encroachment. On 27-8-1954 upon this report the President of the local Union Board was requested to take action. No 'action appears to have been taken at all, and the District Engineer, too, then did not move any further in the matter. The details as to how the proceeding came to be instituted are set out above in order to have a clear idea as to how the alleged encroachment was treated as a nuisance by the authorities, since the District Board authorities and the local Union Board did not think it necessary to take any steps for the removal of the alleged encroachment. The villagers submitted a petition "Exhibit 1" to the Sub-Divisional Officer of Burdwan, whereupon the present proceeding was drawn up against the petitioner. The petitioner in due course filed his written statement denying the existence of the public right over the disputed portion of the pathway. Thereafter, evidence was taken under the provisions of Section 137 of the Code of Criminal Procedure but before a final order could be passed therein, the matter was taken up in revision to this Court. The Rule that was issued (Criminal Revision case No. 820 of 1955) was finally disposed of on the 16th of July, 1955 by Debabrata Mookerjee, J., who discharged the Rule refusing to interfere with the matter at that stage. Thereafter, the learned Magistrate concluded the enquiry and passed a final order which was again challenged in a Revisional application made to this Court (Criminal Revision No, 630 of 1956). The Rule that was issued, was finally made absolute and the order of the Court below was set aside on 8-3-1957. The matter was sent back to the Court below to be re-heard from the stage it reached after allowing an opportunity to the petitioner to adduce evidence in rebuttal of the evidence of the court witnesses. Thereafter, the matter went back and in the result, the previous order passed by the learned Magistrate was confirmed. In the proceeding that was drawn up it was stated that the second party had encroached upon a public road in plots Nos. 1973 and 693 in Mouza Koyor by raising an embankment measuring <FRM>JUDGEMENT_599_AIR(CAL)_1959Html1.htm</FRM> and thereby causing obstruction to the public. The petitioner filed his written statement and his case was that the tank in question belonged to him. He admitted that he had indeed, placed some earth on the embankments but there was no encroachment. So far as the trees stood on the bank his case was that these trees had existed there for a very pretty long time & as such even if there was any encroachment, they did not exist for a very long time and therefore, the proceeding under Section 133 of the Code of Criminal Procedure was not called for.

(3.) Mr. J.M. Banerjee appearing on behalf of the petitioner has submitted various points for my consideration. In the first place, he has complained of the incongruous findings arrived at by the Court below and he argues that on the basis of these findings an order under Section 133 cannot be allowed to stand. He has, next, complained that the evidence in the case does not justify the order that was made and lastly, causing inconvenience to traffic does not amount to a nuisance for the removal of which an order under Section 133 of the Code of Criminal Procedure is called for.