INDU BHUSAN MUKERJI Vs. NILMANI GHOSH

JUDGEMENT

(1.) IN my opinion, this rule must be made absolute. It appears that the Municipality wanted the opposite party before us to remove a hut. It has been found by the Magistrate that this hut is an encroachment upon a public road in the sense of the Bengal Municipal Act, that is to say, a road over which the public have a right of way. Under Section 202, Bengal Municipal Act, it is open to the Commissioners to issue a notice requiring any person to remove any obstruction or encroachment which he may have erected in or on any road or open drain, sewer or aqueduct. This is not a question of open drain or a sewer or an aqueduct and I need make no further reference to these matters. The Municipality issued a notice in Bengali, headed Section 202 of this Act. It pointed out quite specifically what the hut was that the opposite party was directed to remove and it described it as being upon roadside land; and the Magistrate has come to the conclusion that, although the hut is in fact an obstruction of, the public road and although Section 202 is expressly referred to in the notice, the notice is bad because it describes the hut as having been put upon the roadside land and not as having been put upon the road. That is the gist of his finding. IN my opinion, the Magistrate is entirely wrong. The only requirement of Section 202 is that the Commissioners shall issue a notice which shall show to the opposite party in a way in which he can understand what the obstruction or the encroachment is that he is required to remove. The fact that they describe it as roadside land and not a road has no importance at all, provided always that it is found as a fact that the obstruction is an obstruction of the public road in the sense defined in the Act. If there is any desire on the part of the opposite party to challenge the finding as to whether this land is part of the public road either by appeal from the decision made against him or otherwise, that is a matter upon which I say nothing and with which we have nothing whatever to do. IN the circumstances, the order of the Magistrate will be set aside and the case must be sent back to him to give judgment in accordance with law. Graham, J.

(2.) I agree.