BIPIN NATH Vs. SITANGSHU DAM

JUDGEMENT

(1.) A proceeding under Section 133 of Cr.P.C. was drawn by Sub-Divisional Magistrate, Dharmanagar, North Tripura on a petition filed by the petitioner (1st Party before the SDM) to adjudicate upon an allegation of public nuisance, alleged to have created by respondent (2nd Party before SDM), by way of obstructing/occupying a public pathway/road starting from Dharmanagar-Bagbassa P.W.D. Road, leading towards Bagbassa Ward No.1, the road measuring about 7/8 feet in breadth and 2/2.5 KMs in length. It was alleged by the petitioner that people of the locality including the petitioner and the respondent were using the pathway for 40/50 years continuously and the pathway attracts the land of different persons of the locality including the land of the respondent recorded in Khatian No.209, plot Nos.783 and 784. The respondent encroached on the pathway/road putting fencing thereon and as a result the road became narrow. It was further alleged that the respondent also obstructed the pathway throwing waste, garbage, etc. and as a result caused inconvenience and obstacle to the people at large in smooth using of the pathway.

(2.) THE respondent on receipt of the notice appeared before the learned SDM, Dharmanagar and submitted inter alia that there was no public pathway as alleged by the petitioner and that the respondent and some others, namely, Haradhan Chakraborty and Himangshu Dam, etc., contributing a part of their jote land made a pathway for use by themselves and that it was never a public pathway and there was no question of gradually encroaching the pathway by making fencing or obstructing it throwing garbage, etc. thereon.

(3.) WHILE exercising jurisdiction under Section 397 read with 400 of Cr.P.C. the revisional Court was supposed to see the correctness, legality and propriety of the order and the regularity of the proceeding and it was not required at all for the revisional Court to re-appreciate the evidence unless the order passed by the Court below was found to be perverse.