DIGENDRA KUMAR DEB Vs. TARINI CHARAN DEY

JUDGEMENT

(1.) THIS revision petition by Digendra Kumar Deb arises out of an application made by Tarani Charan Dey. under S.147 of the Criminal P.C., praying that Digendra Kumar Deb be directed to remove obstruction in the shape of a fencing set up by him over a public pathway which he (Tarini Charan Dey) had been using for egress from and ingress to his homestead situate on the west of that pathway. The preliminary order was passed on 8th August 1960. After perusing the written statements filed by the parties and going through the evidence led by them, Shri S.C. Das, Magistrate first Class, Kailashahar, passed the final order on 23rd April 1962, holding that public road runs over the enclosed part of the land, that Tarini Charan Dey had been exercising his right of way over that public road within three months next preceding the preliminary order, and that the action of Digendra Kumar Deb in obstructing the pathway was likely to result in breach of peace. The Magistrate, therefore, directed the removal of the fencing set up by Digendra Kumar Deb and prohibited him from causing any obstruction in exercise of the right of pathway by Tarini Charan Dey. A period of 15 days was given to Digendra Kumar Deb for removal of the fencing and he was also called upon to pay Rs. 10/ - by way of costs to Tarini Charan Dey.

(2.) HAVING felt aggrieved with the order of the Magistrate, Digendra Kumar Deb filed a revision petition in the Court of the Sessions Judge. That petition came up for hearing before Shri S.B. Laskar, the Additional Sessions Judge, who, by his order dated 7 -6 -1965, dismissed the same on confirming all the findings reached by the Magistrate. The present revision petition under S.439 and S.561A of the Code is directed against the order of Shri S.B. Laskar.

(3.) THE contention of Shri Choudhury that the Magistrate would have been well advised to take recourse to the provisions of S.133 in preference to those of S.147 is equally untenable. It is correct that provisions of the two sections cover common field to the extent that they embrace cases of nuisance over public paths and roads. However, S.147, in addition, also embraces cases of the nature of private nuisance for it includes, inter alia, a case involving infringement of the right of easement which obviously can be claimed by an individual. Further, the most salient distinction between the two sections is that to bring the case under S.147 it has to be established that the dispute between the parties is likely to cause a breach of the peace, while this is obviously not an essential ingredient of S.133. Since in the instant case there was a distinct allegation by Tarini Charan Dey that the obstruction set up by Digendra Kumar Deb was likely to cause a breach of peace between the two parties, and since the Courts below have held that there was a likelihood of breach of peace between them, the case clearly falls within the ambit of S.117 and is not covered be the provisions of S.133.