Hon'ble Mr. Justice S.C. Das

1. A proceeding under Section 133 of Code of Criminal Procedure was drawn by Sub-Divisional Magistrate, Dharmanagar, North Tripura on a petition filed by the Petitioner (1st Party before the SDM) to adjudicate upon an allegation of public nuisance, alleged to have created by Respondent (2nd Party before SDM), by way of obstructing/occupying a public pathway/road starting from Dharmanagar-Bagbassa P.W.D. Road, leading towards Bagbassa Ward No. 1, the road measuring about 7/8 feet in breadth and 2/2.5 K Ms in length.

2. It was alleged by the Petitioner that people of the locality including the Petitioner and the Respondent were using the pathway for 40/50 years continuously and the pathway attracts the land of different persons of the locality including the land of the Respondent recorded in Khatian No. 209, plot Nos. 783 and 784. The Respondent encroached on the pathway/road putting fencing thereon and as a result the road became narrow. It was further alleged that the Respondent also obstructed the pathway throwing waste, garbage, etc. and as a result caused inconvenience and obstacle to the people at large in smooth using of the pathway.

3. The Respondent on receipt of the notice appeared before the learned SDM, Dharmanagar and submitted inter alia that there was no public pathway as alleged by the Petitioner and that the Respondent and some others, namely, Haradhan Chakraborty and Himangshu Dam, etc., contributing a part of their jote land made a pathway for use by themselves and that it was never a public pathway and there was no question of gradually encroaching the pathway by making fencing or obstructing it throwing garbage, etc. thereon.

4. Learned SDM in course of enquiry recorded evidence as adduced by both sides and also locally enquired on the issue through O/C of the P.S. and the Tehsilder of the locality and after considering the evidence and materials on record learned SDM by the impugned order dated 16.10.2003 held thus:

Having found that there is no reliable evidence in support of the denial as to the existence of public right in respect of road/path in question, I proceeded as per provision of Section 133 Code of Criminal Procedure And now, on the evidence on record, I am of opinion that an unlawful obstruction has been created by the 2nd party Sri Sitangshu Dam to the people passing by the road. I am, therefore, satisfied that the order dated 28.11.2000 as originally made Under Section 133, Code of Criminal Procedure is reasonable and proper. The order dated 28.11.2002 is hereby made absolute without any modification. It is, therefore, ordered for removal of such obstructions/nuisance over the said path/road immediately for use of the people passing by the road. Any sort of hindrance/obstruction on the road be removed forthwith for making way to the people passing by the road.

5. The Respondent, herein, being aggrieved preferred a revisional application before the learned Addl. Sessions Judge, North Tripura, Dharmanagar against the order passed by the learned SDM and the learned Addl. Sessions Judge by judgment and order dated 03.02.2004 set aside the order passed by learned SDM mainly on the grounds, (i) that the alleged public pathway was not found in the settlement record and (ii) that the evidence of the Respondent (2nd Party) was not recorded first.

6. While exercising jurisdiction under Section 397 read with 400 of Code of Criminal Procedure the revisional Court was supposed to see the correctness, legality and propriety of the order and the regularity of the proceeding and it was not required at all for the revisional Court to re-appreciate the evidence unless the order passed by the Court below was found to be perverse.

7. In a proceeding under Section 133 of Code of Criminal Procedure., power is vested on the Executive Magistrates to deal with potential public nuisance which caused eminent danger to property and consequential nuisance to the public. Proceedings under Sect