PRAVAKAR SAMANTA Vs. NARENDRA PADHI

JUDGEMENT

(1.) THE petitioner and Opp.party No.2 are opp.parties and Opp.party No.1 is the petitioner in a proceeding under Section 133 of Cr.P.C. in CRLMC No.30 of 2007 pending in the Court of learned Sub -Divisional Magistrate, Jajpur.

(2.) ON 19.1.2007 Opp.party No.1, an advocate, filed the aforesaid CRLMC alleging inter -alia that he has his dwelling house as well as office over plot No.588/1093 appertaining to Khata No.132 of Mouza Naharpur. The present petitioner and opp.party No.2 are stacking Chips, Bajuri and asbestos etc. on the Govt. land adjoining to the aforesaid plot of Opp.party No.1 as well as on some portion of his land for business purpose causing dust of minerals to enter his premises creating an unhealthy atmosphere and public nuisance in the locality. Hence, the proceeding under Section 133 of Cr.P.C. for necessary direction to the petitioner and Opp.party No.2 to remove the aforesaid materials said to have been stacked near the premises of Opp.party No.1.

(3.) IN response to the said notice, the petitioner and Opp.party No.1, filed their respective show cause on the date fixed i.e. on 30.3.2007, contending inter -alia that the proceeding was not maintainable since C.S. No.66 of 2007 filed by the present petitioner seeking declaration of title confirmation of possession and in the alternative recovery of possession in respect of Plot No. 588/1093, which was wrongly recorded in the name of Opp.party No.1 in the major settlement is pending disposal in the Court of learned Civil Judge (Sr. Division), Jajpur. The petitioner and Opp.party No.2 in their show cause further contended that, the dispute being purely civil in nature and that too, between two individuals, the proceeding under Section 133 of Cr.P.C. was not maintainable. They specifically stated in the show cause that they had been doing their business since last 25/30 years without causing any inconvenience to the general public including Opp.party No.1. It is their further case that the allegation made by Opp.party No.1 comes under the purview of Environment (Protection) Act, 1986 and therefore, initiation of the proceeding under Section 133 of Cr.P.C. is not maintainable. Accordingly, petitioner and Opp.party No.2 prayed to quash the proceeding. They also filed a separate petition challenging the maintainability of the proceeding. After hearing learned counsel for both sides regarding the maintainability of the proceeding, learned Sub -Divisional Magistrate, Jajpur vide order dated 11.5.2007 held that the proceeding was maintainable.