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2006 Supreme(Cal) 511
High Court Of Calcutta
Before Tapan Mukherjee, J.
BASAR ALI MOLLA - Appellant
Versus
STATE OF WEST BENGAL - Respondent
CRR 334 Of 2006
Decided On : 08/17/2006
Sadhan Roy Choudhury, Sandip Ghosh, Sujaya Roy, SUKUMAR GHOSH
Section 133, Cr. P. C. cannot be used to settle private disputes or to repair roads which have been abolished.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 133 - PUBLIC NUISANCE - PATHWAY USED BY STUDENTS AND TEACHERS - NO PUBLIC RIGHT - PRIVATE NUISANCE - CIVIL REMEDY - ORDER UNDER SECTION 133, CR. P. C. ILLEGAL - REVISION ALLOWED.
Fact of the Case:
Petitioners challenged the order of the Executive Magistrate directing them not to create any disturbance or obstruction unlawfully or destroy the path, remove the said unlawful obstruction within 15 days and not to disturb the teachers, students/public for using the path measuring an area of 1 decimal at plot No. 1546 and 1 decimal at plot No. 1547 of Mouja-Fakirtakia, P. S: Sandeshkhali, District: 24 Parganas (North).
Finding of the Court:
The disputed pathway was not being used by the public at large but only by the students and teachers of Sisu Siksha Kendra from 2003 to the last week of February 2005. The pathway was destroyed and merged with the fishery. There was no invasion of public rights and the obstruction, if any, was to a handful of persons. The remedy for such obstruction could not be had by resorting to Section 133, Cr. P. C. The nuisance, if any, was purely private and the appropriate remedy was to approach the Civil Court.
Issues: Whether the pathway in question was a public pathway or road and was used by the general public.
Ratio Decidendi: Section 133, Cr. P. C. relates to passing of order for removal of public nuisance in case of emergency. It does not apply to private nuisance and private dispute and it is never intended to settle a private dispute.
Final Decision: The impugned orders passed by the learned Executive Magistrate are hereby set aside.
( 2 ) THE respondent Nos. 1 and 2 in both the cases submitted an application under Section 133, Cr. P. C before the learned Sub-divisional executive Magistrate registered as case No. M. P. 725 of 2005 contending that one cent of land in plot No. 1547 and one cent of land in plot No. 1546 of mouja Faqirtakia, P. S: Sandeshkhali used as road so constructed by their father for use by their family members and public and on the death of their father the students, teachers, guardians of Sisu Siksha Kendra situated to the adjacent north of the path and the public have been using the said path-way for a pretty long time and they gifted the said path-way to the said Sisu Siksha kendra. The petitioner Nos. 1 and 2 who are O. Ps' in the said case being No. M. P. 725 of 2005 constructed the fencing and cut the earth of the said path-way and closed the road and also caused inconvenience to the egress and ingress of the persons using the said path-way. The encroachment of the said pathway is to be removed otherwise the teachers, students and guardians of the students of Sisu Siksha Kendra are facing much inconvenience.
( 3 ) ON consideration of the said application and inquiry reports of b. D. O. , Sandeshkhali-l and BL and LRO, Sandeshkali-1 the impugned order dated 17. 1. 2006 was passed by the learned Executive Magistrate. Then during pendency of the said case being M. P. 725 of 2005, learned Sub-divisional magistrate passed the impugned order dated 7. 7. 2006.
( 4 ) IT has been contended by the learned lawyer on behalf of the petitioners that the disputed plot No. 1547 measuring 92 decimals belonged to anu Molla, the father of the petitioner Nos. 1 and 2 and the O. P. No. 1 and the said Anu Molla transferred 33 decimals of land out of said plot No. 1547 to his son the petitioner No. 1, Basar Ali Molla by registered deed of sale dated 4. 3. 1983 and he constructed his dewelling house on the land on amicable arrangement and got his name recorded in the L. R record and the remaining 59 decimal of land were inherited by legal heirs of late Anu Molla and they were in possession of the same by mutual partition. The plot No. 1546 in question measuring 89 decimals is a vested land and the petitioner No. 3 got patta of 37 decimals of land and petitioner No. 4 also got patta of the portion of said land in plot No. 1546 and they are possessing the same. The O. P. No. 1 transferred 10 decimal of land in plot No. 1505 and 1506 to Sisu Siksha Kendra and also transferred one decimal of land in plot No. 1547 for using the same by Sisu Siksha Kendra as path and Chhakat Molla, son of O. P. No. 2 also transferred one decimal of land in plot No. 1546 to Sisu Siksha Kendra for use of the same also as path though he had no transferable right. The plot No. 1505 and 1506 are surrounded by fishery on all the sides and there was no way to enter into the said plot so 0. P. No. 1 and his son transferred two decimal of land to said Sisu Siksha Ken
