OM PRAKASH MAHANSARIA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This revision is directed against the ex pane order dated 27-2-97 passed by S.D.M. Sadar, Ranchi i.e. O.R No. 2 in Case No. M/1932/96 which was a proceeding under Section 133 of the Code of Criminal Procedure and through this order the petitioner was directed to remove alleged public nuisance from a public place.

(2.) The fact in short for the purpose of this application is that O.Ps. of this case i.e. Ram Bilas Jalan and others filed a petition before the S.D.M. Sadar alleging therein that they had purchased different sub plots of Plot No. 1717 under Ward No. 1 of Ranchi Municipality from one Amiya Kumar Banerjee and the vendor for convenience of all the purchasers made arrangement for a public drain for drainage of the rainy water and other refuse, 96' long and 3' wide which goes upto the main road i.e. kutchery road. Similarly the vendor and rightful owner made an arrangement of a public way for all the purchasers having 18' wide and 96' long for the passage of the purchasers and this road leads to the main road i.e. kutchery road. The O.P. of the proceeding i.e. petitioner here also purchased 5 Kathas of land from one Santosh Devi Poddar in the year 1995 of a portion of plot No. 1717 and made construction of the house and encroached public drain by giving slab and thus, flow of the water was also obstructed and had further fixed a gate for using the drain portion as a passage for going to the clinic and thus, some portion of the passage has also been encroached. Accordingly, O.Ps. prayed for removal of the public nuisance.

(3.) The S.D.M. Sadar on being satisfied from the report has drawn up a proceeding under Section 133 of the Cr.P.C. and passed a conditional order on 2-11-96 asking the petitioner who was O.P. in the Court below to remove the nuisance and filed the show cause, if any. In pursuance of the order of the S.D.M. the O.P. petitioner entered appearance and filed a show cause admitting therein that one Amiya Kumar Banerjee and his brother were the original owner of the entire plot No. 1717 and this plot was divided into several parts and it was sold to several persons including one Santosh Devi Poddar and from Santosh Devi Poddar . he purchased a portion of this plot measuring 5 Kathas and the O.Ps. also purchased various sub-plots from the said original owner and had constructed houses thereon. It is admitted by this petitioner that a passage for use of all the purchasers was provided and similarly there was provision for a drain running West to East having 3' wide and 96' long but according to arrangement made by the original owner in the deed dated 28-2-86 in the name of Santosh Devi Poddar the vendor of this petitioner there was specific provision that the drain will be covered in order to avoid accumulation of mosquito, fly and the dust and accordingly the petitioner simply gave removable slab on the drain for better health and hygiene as the ioner also being a doctor running a clinic there, and the petitioner has not obstructed the drain or the public way in any way.