NABADWIP MUNICIPALITY Vs. PURNA CHANDRA MUKHERJI

JUDGEMENT

(1.) This is a reference under Section 438 of the Criminal Procedure Code made by the Sessions Judge of Nadia recommending that two orders passed by the District Magistrate under Section 202 of the Bengal Municipal Act, dated the 27 June and 20 October 1924, be set aside.

(2.) The facts, so far as they are necessary for the decision of this reference, are as follows. By his letter, No. 182, dated the 23 June 1924, the Vice-Chairman of the Nabadwip Municipality informed the District Magistrate of Nadia that on the 26 April the Commissioners passed a resolution regarding the raising of the northern portion of the Municipal road named Dwarik Babu's Road. Babu Purna Chandra Mukherji, the Chairman of the Municipality, in opposition to this resolution, erected a brick wall the very next morning right across the northern portion of the said road. On the 31 May the Commissioners passed a resolution that a notice under Section 202 of the Bengal Municipal Act might be issued on Babu Purna Chandra Mukherji requiring him to remove the wall. On the 2 June, the Vice-Chairman issued a requisition on Babu Purna Chandra Mukherji under this Section. As he failed to remove the obstruction within the prescribed time, the Magistrate was asked in this letter to pass necessary orders for removal of the encroachment. On receipt of this letter the District Magistrate, by an order, dated 25 June, requested Babu Satis Chandra Bose, Sub-Deputy Collector, to hold a local inquiry and report by the morning of the 27th. The Sub-Deputy Collector held a local enquiry in the presence of the Vice-Chairman, Babu Purna Chandra Mukherji, and others. On receipt of his report the Magistrate, on the 27 June, recorded an order in which he stated that he did not think that an order by him under Section 202 of the Municipal Act was justifiable, and that he did not see his way to order summary removal of the wall. This decision was conveyed to the Municipality by the District Magistrate's letter No. 329 M., dated the 1 July 1924. The Vice-Chairman replied in his letter No. 258, dated the 18th/21 July 1924, asking for re- consideration of the order, and repeated this request in a letter of reminder No. 412, dated the 19 September 1924. On the 20 September the District Magistrate asked his senior Deputy Collector, Babu C. C. Gupta, to hold an inquiry in the presence of parties and report. This officer held an inquiry accordingly and submitted a report, dated the 20 October 1924. On receipt of this report the District Magistrate passed an order, on the same date, directing the Municipality to remove the obstruction Under Section 202 of the Municipal Act and recover costs from Babu Purna Chandra Mukherji.

(3.) The learned Sessions Judge, on an application made to him by Babu Purna Chandra Mukherji to set aside the order of the 20 October, has recommended that both the order of the 27 June refusing to take action, and the order of the 20 October taking action under Section 202 of the Municipal Act, be set aside on the ground that the District Magistrate could not perform his function under this Section by acting on the report of another Magistrate.