UJALAMAYI DASI Vs. CHANDRA KUMAR NEOGI

JUDGEMENT

(1.) This is in substance a suit brought in the Court of the Moonsiff to set aside an order made by the Magistrate under section 308 of the Code of Criminal Procedure for the removal of a wall as encroaching on a public road. The order was made against the plaintiff's husband, but the plaintiff in substance alleges that the wall belonged to her, and not to her husband, and that she is not bound by the order made against her husband. If she is not bound by the order which has been passed against her husband, there is no necessity for her to have it set aside. The case must be decided as if the suit had been brought by the husband. Section 308 gives the Magistrate a summary jurisdiction for removing nuisances. It enacts that whenever a Magistrate may consider that any unlawful obstruction or nuisance should be removed from any thoroughfare or public place; or that any trade or occupation, by reason of its being injurious to the health or comfort of the community, "should be suppressed or should be removed to a different place; or that the construction of any building or the disposal of any combustible substance as likely to occasion conflagration should be prevented; or that any building is in such a state of weakness that it is likely to fall, and thereby cause injury to persons passing by, and that its removal in consequence is necessary; or that any tank or well adjacent to any public "thoroughfare should be fenced in such a manner as to prevent danger "arising to the public,--he may issue an order to the person causing such obstruction or nuisance, or carrying on such trade or occupation, or being the owner, in possession of, or having control over, such building, "substance, tank, or wall as aforesaid, calling on such person, within a time to be fixed in the order, to remove such obstruction or nuisance, or to suppress or remove such trade or occupation, or to stop the construction of, or to remove such building, or to alter the disposal of such substance, or to fence such tank or well (as the case may be,) or to appear before such Magistrate within the time mentioned in the order and show cause why such should not be enforced."

(2.) Section 309 provides for the service of the order, and then section 310 provides that the person to whom such order is issued shall be bound within the time specified in the order, to obey the same, or to appear before the Magistrate to show cause as aforesaid, or he may apply to the Magistrate by petition for an order for a Jury to be appointed to try whether the order is reasonable and proper.

(3.) Now these summary powers are given to the Magistrate for the purpose of enabling him speedily to remove nuisances. If when a Magistrate having entered into the question has determined that a nuisance does exist, be is to be restrained by a Court of Civil Judicature from carrying his order into execution, it might be two or three years before the nuisance could be removed, by which time as suggested by the Government pleader, all the injury may have been actually sustained. While the suit is going on, persons may be poisoned by the malaria arising from the nuisance, or the conflagration may take place, or lives may be lost by the falling of a ruinous wall on passengers, or their cattle may be drowned in a tank or well which has not been properly fenced to prevent danger.