SMT. BHUBANESWARI GOSWAMI Vs. KALIRAM BURMAN

JUDGEMENT

(1.) THIS is a revision against an order of the Magistrate passed in proceedings Under Section 147 of the Criminal Procedure Code. The opposite party, Sri Kaliram Burman, hereinafter referred to as the first party, made a petition Under Section 147, Cr.PC. Police report was called for and proceedings were drawn up on 31 -7 -1958. The first party contended that there was a serious apprehension of a breach of the peace with regard to the construction of a brick wall within 1% Feet of the first party's dwelling house. The wall is 6 feet or 7 feet high and is obstructing the air and light from the window of the bed rooms of the first party which he continuously enjoyed for the last 28 years.

(2.) IN the present petition, three main contentions have been raised by the counsel for the petitioner. Firstly, it is contended that Section 147, Cr.PC. does not contemplate the case of interference with the user of a portion of his own land. Section 147, Cr.PC., according to the petitioner, gives jurisdiction to the Magistrate to pass an order in cases where any person's right of user as an easement over the land or any right other than that of an owner in the land is disputed which is likely to result in the breach of the peace. Where the petitioner claims that he has been using the land as an incident of ownership, he possesses no right in the land apart from the ownership, and Section 147, Cr.PC. is not attracted. His remedy, if any, is to bring a civil suit before a proper Court. Secondly, he contends that the notice issued to the second party in the present case was defective. The notice was issued to the second party calling upon her to show cause why the construction should not be removed. The form of the notice, according to the petitioner, is defective. This notice presupposes that the Magistrate had formed an opinion that the construction was unlawfully made by the second party. It was lastly contended that Under Section 147, Cr.PC, the Magistrate had no right to pass a mandatory order directing any of the parties to the proceedings to remove the construction. It was further urged in this connection that in the absence of any proof of the fact that the right claimed by the first party had been exercised within three months next before the institution of the enquiry, no order could be made under that Section. Section 147 provides as follows:

(3.) SECTION 145, Cr.PC. deals with the cases where a dispute likely to cause breach of peace concerning any land or water or the boundaries exists. The Magistrate, on being satisfied of the existence of such a dispute, can make an order in writing and initiate proceedings Under Section 145, Cr.PC. Section 147, Cr.PC. deals with disputes regarding any alleged right of user on any land or water. Section 145 deals with cases where there is a dispute with regard to the land itself likely to result in breach of peace, whereas Section 147 deals with cases where there is a dispute with regard to a right in or over the land.