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High Court Of Calcutta
P. N. Sinha, J.
IRA GANGULI - Appellant
Versus
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY - Respondent
C. R. R. 1068 Of 2005
Decided On : 06/15/2007
SECTION 133 OF THE CR. PC - REMOVAL OF PUBLIC NUISANCE - IMPLEADING NECESSARY PARTIES - FOLLOWING LEGAL PROCEDURES - EVIDENCE AND HEARING - JURISDICTION OF EXECUTIVE MAGISTRATE - INVOCATION OF SECTION 133 IN CIVIL DISPUTES - INTERPRETATION OF SECTION 133 AND RELATED PROVISIONS - APPLICATION OF JUDICIAL MIND - MAINTAINABILITY OF REVISIONAL APPLICATIONS.
Fact of the Case:
The petitioners challenged orders passed by the Executive Magistrate and the Additional Sessions Judge in a proceeding under Section 133 of the Cr. PC, initiated against the petitioner's husband for alleged obstruction of a public place. The petitioners contended that the Executive Magistrate did not follow proper procedures, failed to implead necessary parties, and passed an order without recording evidence or providing an opportunity for hearing. They also argued that the dispute was of a civil nature and that Section 133 could not be invoked in such cases.
Finding of the Court:
The Court found that the Executive Magistrate had indeed failed to follow the proper legal procedures, did not implead necessary parties, and passed an order without recording evidence or providing an opportunity for hearing. The Court also held that the dispute was of a civil nature and that Section 133 of the Cr. PC could not be invoked in such cases.
Issues: 1. Whether the Executive Magistrate followed proper legal procedures in the proceeding under Section 133 of the Cr. PC? 2. Whether the Executive Magistrate erred in not impleading necessary parties in the proceeding? 3. Whether the Executive Magistrate could pass an order without recording evidence or providing an opportunity for hearing? 4. Whether Section 133 of the Cr. PC can be invoked in civil disputes?
Ratio Decidendi: 1. The Court held that the Executive Magistrate did not follow proper legal procedures as required under Sections 133 to 138 of the Cr. PC. 2. The Court held that the Executive Magistrate erred in not impleading necessary parties, particularly the petitioner who was the owner of the disputed land. 3. The Court held that the Executive Magistrate could not pass an order under Section 133 of the Cr. PC without recording evidence or providing an opportunity for hearing. 4. The Court held that Section 133 of the Cr. PC cannot be invoked in civil disputes, as settled by the principle of law.
Final Decision: The Court set aside the orders passed by the Executive Magistrate and the Additional Sessions Judge and remitted the matter back to the Executive Magistrate for deciding the application under Section 133 of the Cr. PC afresh, in accordance with proper legal procedures and after impleading all necessary parties.
( 2 ) THE learned Advocate for the petitioners submitted that plot No. 45a of jainuddin Mistri Lane was purchased by Smt. Ira Ganguly, the petitioner of c. R. R. No. 2080/04. The Calcutta Corporation had mutated the said plot in her name in the year 1988. Before that, the Land and Land Reforms Department of the Government of West Bengal by letter dated 29th June 1985 informed one pradip Kumar Das, the vendor of Ira Ganguly that premises No. 45, Jainuddin mistri Lane is not affected under any land acquisition proceeding. The Calcutta improvement Trust by letter dated 26. 12. 85 informed her that property of 45, jainuddin Mistri Lane is not allocated at present by any published/sanctioned scheme/alignment of the trust. The plot 45 was subsequently divided into plots 45a and 45b and Ira Ganguly is owner of plot 45a. Strange, the proceeding under section 133 of the Cr. PC in M. P. case No. 538/89 was started by CMDA now Kolkata Improvement Trust against Monojit Ganguly in respect of 45, jainuddin Mistri Lane. The proceeding under section 133 of the Cr. PC was thus started against a person who had no connection at all with the plot 45 or 45a of Jainuddin Mistri Lane. When Ira Ganguly came to know about starting of the proceeding under section 133 of the Cr. PC she applied for impleading her a party in the said proceeding, but, the learned Executive Magistrate by order dated July 29, 2004 rejected her prayer and refused to recall or modify the order dated 31st May, 2004.
( 3 ) MR. Abhijit Chottopadhayay for the petitioner next contended that before the learned Executive Magistrate evidence were not recorded. The learned magistrate did not follow the provisions of sections 137 and 138 of the Cr. PC and in the impugned order dated 31st May, 2004 the learned Magistrate did not discuss the evidence at all. The learned Magistrate did not give any direction for show -cause and there was no evidence and no hearing and, without following the essential requirements of a proceeding under section 133 of the Cr. PC passed an order for removal of building constructed by Ira Ganguly. The learned additional Sessions Judge did not apply his mind at all into the matter and did not take pains to go through the papers and documents for ascertaining us to which plot was involved in the proceeding and who was owner of the same. Entire dispute was of civil nature and settled principle of law is that provisions of section 133 of the Cr. PC cannot be invoked in matters of civil dispute. The plots 44/1, 44/1a and petitioner's land being plot No. 45a of Jainuddin Mistri lane are separate. Neither Monojit Ganguly nor his wife Ira Ganguly are owners of plot 44/1a but, the learned E
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