B.K. Sharma, J.
1. The writ petition has been filed assailing the legality and validity of the proceeding initiated by the Sub-Divisional Magistrate under Section 133 of the Cr.P.C.
2. The petitioner and the respondents No. 4 and 5 are closely related. The dispute relates to construction of a drain in the common pathway over the land duly partitioned among them and after the partition, the names of the co-shares were duly recorded in the Khatian. The common pathway was recorded as C.S. Plot No. 11787 pertaining to the said Khatian.
3. As per the statements made by the petitioner, the respondents No. 4 and 5, who are the full blood brothers, in the recent past became interested to have a drain in between their homestead and the homestead of the petitioner separated by the aforesaid common pathway. According to the petitioner, such a drain is not at all necessary in view of the existing municipal drains in the northern, southern and western side, sufficient for drainage.
4. The respondent No. 4, elder brother of respondent No. 5 lodged a complaint with East Agartala P.S. to the effect that the petitioner is preventing to excavate a drain creating nuisance. Pursuant to the said complaint, the police submitted a report on 2.6.2006 to the Sub-divisional Magistrate, Agartala, West Tripura (respondent No. 3), a copy of which has been annexed as Annexure-B to the writ petition, hi the report, the drain has been described as a domestic drain.
5. On receipt of the said report, the respondent No. 3 drew up a proceeding against the petitioner under Section 133 Cr.P.C. While issuing notice to the petitioner, he was asked to execute a bond of Rs. 2000 on the ground that the petitioner was threatening the respondent No. 4. It has been stated that there is close nexus amongst the respondent Nos. 3, 4 and 5 being classmates during their period of study. It is the case of the petitioner that going by the circumstances, no proceeding under Section 133 Cr.P.C. could have been drawn and at best, it could be a proceeding under Section 107 Cr.P.C. The show cause notice dated 19.6.2006 is quoted below:
In the Court of S.D.M. Sadar, Ext. Magt.A SHOW CAUSE NOTICE Case No.NGR-478(Ex)06 Next Dt.
ToSr/Smt. Sankar SahaS/O. D/O. W/O. S/O. Lat. Hiralal SahaVill. 12/02 Thana RoadP/S East Agartala, Ganaraj Chowmohini
Whereas Sr./Smt. Sambhunath Saha S/O. W/O. Balaram Saha, Vill-12/02 Thana Road, P.S. East Agartala, resident of Banamalipur has lodged a complaint against you that, last 02/06/2006, Time 8 'o' clock you/you all have by display of fear on him due to which mere is likelihood of breach of peach and security in the locality. It appears to me this appreciation is without any basis.
You/you all are hereby given notice under the Criminal Procedure Code wither to appear in person or/through advocate duly appointed before this Court on 27,06.2006, within 11 a.m. and to reply as to why a bond of Rs. 2,000/-with one surety for a period of one year should not be executed by you will proceed in accordance with law.
Today 19.6.06 Eng., date, Given under my signature and seal.
Sd/Illegible19.6.06Sub-Divisional MagistrateSadar, Tripura (W)
6. In response to the show cause notice, the petitioner appeared before the Sub-Divisional Magistrate (SDM) on 27.6.2006. However, the officer was not present in the office till 4.00 P.M. Situated thus, the petitioner submitted an application in the office with the prayer for bail and executed a bail bond. After that, the office assistant told the petitioner that his presence was no longer necessary on that day. He also supplied the copy of the police report to the petitioner. However, the SDM in the later part of the day issued bailable warrant against the petitioner. On the basis of such bailable warrant, the police raided the house of the petitioner, but he could not be found as was away to some other place.
7. The petitioner having come to know about the aforesaid search made by the police, appeared before the SDM on the next working day and submitted about his appearance in 27.6.2006. He also narrated the position on that day by submitting an application. In the application, the petitioner prayed for bail, as per the application and bail bond submitted on 27.6.2006. According to the petitioner, although he was allowed to go on bail in acceptance of the earlier bail bond executed for Rs. 2000/-, but the SDM asked him to allow the drain to flow by excavating the same and made it known that granting of bail to him was conditional subject to opening of the drain.
8. By order dated 5.7.2006, while granting bail to the petitioner, the matter was fixed on 31.7.2006, but on 24.7.2006 a police party alongwith some labourers went to the spot and excavated a drain just close to the wall of the building of the homestead of the petitioner. According to the petitioner, no drain was excavated covering the entire pathway, but the same was excavated only on the small portion of the pathway close to the wall of the building of the petitioner.
9. After the aforesaid incident, the petitioner on three different occasions made prayer to the SDM for supply of certified copies of the orders passed in the proceeding. However, according to the petitioner, the copies have not been supplied to him. Inspite of meeting the SDM by the learned Counsel for the petitioner praying for furnishing the certified copies of the orders, the same have not been furnished as yet on the ground that the records are not with him and also that the records are not traceable.
10. The petitioner asserts that the SDM acted in the proceeding beyond jurisdiction, which was agitated by the petitioner by filing a complaint to the District Magistrate and Collector on 5.7.2006 (Annexure-G). He also submitted a written objection on 31.7.2007 to the SDM against the proceeding initiated under Section 133 Cr.P.C. Be it stated here that the said proceeding has been registered and numbered as Case No. NGR-478 (Ex) 06 (Sri Sambhu Nath Saha--1st party v. Sri Sankar Saha--2nd party).
11. In the objection filed by the petitioner, it was contended that the proceeding was not maintainable as there was no existence of public nuisance and that the 1st party in the guise of the proceeding wanted to settle private dispute. It was categorically stated that there was no public drain in the spot. The petitioner also enclosed the photocopy of the settlement map. It was pointed out in the objection that, one Sri Sital Chandra Saha of the locality had on 5.4.2006 lodged a written complaint to the O/C East RS. Agartala against the 1st party members for forcibly cutting a half drain in one side by avoiding the landowner of the other side of the road. It was also pointed out that a letter was submitted to the SDM on 10.4.2006. Further statement made in the objection was that on receipt of the complaint the police came to the spot and restrained the 1st party members from digging any drain.
12. In the objection, it was also revealed that a Title Suit being T.S. No. 60/2006 has been instituted by the 1st party alongwith others as plaintiff against the 2nd party and the same is pending in the Court of learned Civil Judge (Jr. Division), and accordingly, no proceeding under Section 133 Cr.P.C. is maintainable. It was further stated that since the police report clearly revealed that the dispute related to a domestic drain, no proceeding under Section 133 Cr.P.C. is maintainable.
13. The respondents No. 4 and 5 in their counter affidavit while denying the contentions raised in the writ petition have agreed about the Partition Deed indicated in the writ petition. According to them as per terms of the Partition Deed the drain in question was in existence. The factum of pendency of Title Suit No. 60/2006 by and between the parties have been admitted by the respondents. According to them the suit was filed when the petitioner started unauthorized construction on the suit land encroaching upon the pathway. It has further been stated that the existing drain was stealthily filled up by the petitioner and on raising protest, the petitioner came with an aggressive mood. Situated thus, the respondents and others brought the matter to the notice of the police by way of filing a complaint on 21.5.2006 with a prayer to remove the obstruction from the drain.
14. As per the said affidavit, it was on the basis of the aforesaid complaint the SDM, initiated the proceeding under Section 133 Cr.P.C. It has been stated that on receipt of the police report, the SDM sent 2/3 officials to ascertain the actual position, which mea sure, the petitioner opposed by obstructing the officials. It is the further case of the respondents that when the stoppage of the drain seriously affected them, they approached the SDM for early action in the matter. Accordingly, on the basis of the prayer, the respondent No. 3 in exercise of his power under Section 133 Cr.P.C. removed the obstruction to the drain. The allegation of friendship between the respondents and the SDM has been denied. The respondents have denied the purported illegal action on the part of the SDM.
15. The respondent Nos. 1 to 3 have also filed counter affidavit denying the contentions raised in the writ petition. In the affidavit they have referred to the Partition Deed mentioned above and the purported mention in the deed about the drain in question. According to the respondents the obstruction in the drain has also affected others in the locality. As per the affidavit, the SDM on the basis of the report furnished by the police was satisfied about the existence of sufficient ground to proceed under Section 107 Cr.P.C. However, the notice was issued under Section 133 Cr.P.C. and the petitioner submitted surety bond of Rs. 2000/-. Further statement made is that the SDM took the right decision, as there was every chance of breach peace and tranquility.
16. As regards the grievance of the petitioner that the documents were not furnished to him, same has been stated to be on account of calling for the records by the District Magistrate from the SDM. In the document annexed to the counter affidavit, Annexure-A is a certificate issued by an authority certifying the road in question to be a private road. The certificate also stated about the stagnation in water flow.
17. By order dated 13.8.2007, the records of the proceeding in Case No. NGR 478 (Ex) 06 was called for from the SDM and the learned State Counsel has produced the same. I have heard Mr. P. Rathor, learned Counsel for the petitioner as well as Mr. N.C. Pal, learned State Counsel. I have also heard Mr. S.M. Chakraborty, learned Sr. Counsel assisted by Mr. N. Majumdar, learned Counsel representing the respondents No. 4 and 5. I have also gone through the records of the proceeding.
18. The records have revealed that the proceedings under Section 133 Cr.P.C. was initiated on the basis of the police report, copy of which has been annexed to the writ petition as Annexure-B. On the very first day of the proceeding, while issuing notice fixing the matter on 27.6.2006 the SDM recorded his satisfaction to draw up proceeding under Section 133 Cr.P.C. against the petitioner and directed him to execute a bond of Rs. 2000/ - for maintaining peace for a period of one year or till the completion of the enquiry whichever was earlier. However, again by order dated 19.6.2006 the proceeding under Section 133 was drawn up on the basis of the same very police report. On the basis of the report a finding was recorded that the petitioner illegally took up construction over the common path. Accordingly, notice was issued to the petitioner as to why he shall not be asked to stop the activities. The matter was fixed on 27.6.2006.
19. On 27.6.2006, the learned SDM took up the proceedings under Section 107 Cr.P.C. It was recorded in the order that although the petitioner appeared by filing Vokalatnama, but was not found on call. Such absence of the petitioner was recorded to be an insult to the Court. Accordingly, bailable warrant of arrest was issued against the petitioner with direction to the police to execute the same. Thereafter, the matter was fixed on 5.7.2006. On 5.7.2006, the submission made by the petitioner that there was no apprehension of breach of peace and the petitioner be granted bail and the proceedings be dropped was recorded. The 2nd party was also heard. An order was passed to remove the obstruction made by the petitioner himself, under threat of forceful removal by the administration. The target date was also fixed as 6.7.2006 i.e. the next day. The police was also directed that in case of not adhering to the order by the petitioner, the obstruction to the drain be removed by engaging labour. Thus, the direction was to execute the order for removal of the purported obstruction in the drain.
20. The matter was again taken up on 22.7.2006. In the order passed on that day, the satisfaction for initiation of proceeding under Section 133 Cr.P.C. was recorded. It was also recorded as to how the local Tahsildar was directed to make an enquiry relating to the dispute and the purported obstruction put to him by the petitioner. From the order it appears that the SDM constituted a team to execute the order of removal of purported obstruction in the drain. The team consisted of 7 officers including the police officer. A direction was issued to the team headed by one Sri Gopal Debnath, DCM, Sadar to proceed to the spot for removal of the purported obstruction. In the order, it was also provided that the said DCM would take cash amount for payment of labour charge. The O/C, East Agartala Police Station was requested to detail atleast 20 Nos. of Armed personnel for smooth executed of the order.
21. The matter was again taken up on 31.7.2006 and on being apprised of the execution of the order passed earlier, the case was dropped without trial. It was recorded in the order that although the petitioner was present in the court but on call, he was not available. The order sheet reveals that the matter was again taken up at 4 P.M. in the name of providing opportunity to the petitioner. His submission was recorded, in which it was pointed out that there was no public nuisance, no drain was in existence, T.S. No. 60/06 being pending in the Civil Court, the proceeding was not maintainable, the matter relates to private dispute etc. The petitioner also produced documents in support of his contention. However, after recording the submission, the SDM in his order dated 31.7.2006 held that the matter was an emergent nature requiring immediate action and accordingly order for execution in the manner stated above was passed. The proceeding was dropped with a note of caution to the petitioner not to repeat any nuisance.
22. Above is all about the proceeding before the SDM called in question in this writ petition, hi the police report, the pendency of the Title Suit was mentioned. The drain was described as Kacha domestic drain. By the report, the police made a request for passing conditional order to remove the obstruction from the drain by the petitioner. It is on the basis of this police report, the SDM proceeded with the proceeding in the aforesaid manner.
23. Section 133 Cr.P.C. provides for taking evidence towards removal of unlawful obstruction or nuisance from any public place lawfully used by the public. In the instant case, the petitioner appeared before the SDM filing his objection to the proceeding, in which specific pleas such as non-existence of any drain, pendency of Civil Suit, the dispute being a private dispute etc. were raised. However, brushing aside the pleas of the petitioner the SDM executed his order for excavating the drain by constituting a team of 7 officers empowering it to engage labourers with further direction to the police to provide armed personnel.
24. If a dispute is of civil nature, such dispute cannot be entertained by a Magistrate under Section 133 Cr.P.C. The provision of the Section can be used only for settlement of dispute in relation to public right in the general interest of public at large. Unless a nuisance is created at a public place, Section 133 does not apply and no order can be passed under this section. As has been held by this Court in Bhaba Kanta v. Ramachandra reported in 1987 Cr.L.J. (Gau.) 1155, when the obstruction did not cause public nuisance or the alleged conduct did not affect public right, the Magistrate has no jurisdiction to continue the proceeding under Section 133 Cr.P.C. For the applicability of Section 133 Cr.P.C. the public must have a right of way which is being obstructed or on which nuisance is made or it must be a public place where the alleged obstruction is created. The ingredients of Section 133 Cr.P.C. imply not only that the way, river or channel must be one of public use, but the obstruction must be to that of public use.
25. In the instant case, apart from the police report, the SDM did not take any evidence, which was to be led by the 1st party. No justification was made that the conduct of the petitioner amounted to obstruction in public place or was in the nature of public nuisance. The SDM although was not required to record evidence in passing conditional order, he was required to record evidence when he made the conditional order absolute. In the order dropping the proceeding, no discussion has been made on the documents produced by the petitioner. The purpose and object of the section is not intended to settle private dispute between two members of the public, but is intended to protect the public as a whole against the alleged inconvenience. This aspect of the matter has not been gone into by the SDM. Admittedly, the purported obstruction or nuisance is on the private property and thus, no interference could be made taking recourse to Section 133 Cr.P.C.
26. The procedure adopted by the SDM has been noted above. He has gone to the extent of issuing bailable warrant of arrest against the petitioner. He also constituted a team of 7 officials towards execution of the conditional order with further direction to the police to deploy minimum 20 armed personnel. He also granted the liberty to the leader of the team to take cash amount towards payment of labour charge. The SDM in exercising his quasi-judicial power, acted overenthusiastically and in the process failed to follow the mandatory requirement of Section 133 Cr.P.C.
27. This Court in Thaneswar Bora v. Sri Kumud Sarmah reported in (1986) 2 GLR 161 considered the ambit and scope of Sections 133,137 and 138 Cr.P.C. and the conditions precedents towards exercising the power vested on the Executive Magistrate. It has been held that if a private right is affected, the provisions are not attracted nor could the Magistrate assume jurisdiction to pass a final order. Similarly in Arfan Ali v. Binod Bihari De reported in (1990) 1 GLR 228, it has been held by this Court that the Magistrate exercising its power under Section 133 Cr.P.C. must satisfy himself that it is a public nuisance or obstruction affecting injuriously a number of persons and that the Section does not relate to a private dispute for which proper forum is the Civil Court.
28. From the proceedings and the reflections made from the records what has transpired is that the parties were involved in a family partition which mentioned about the private road. Although, according to the 1st party-respondents a drain was in existence, according to the petitioner, no such drain was there. In the police report the drain has been described as a domestic drain. In the affidavit-in-opposition filed by the respondents also, it has been indicated that the drain is on private land. The dispute having been raised in respect of private property and the dispute being a private dispute, the SDM could not have proceeded with the matter invoking power and jurisdiction under Section 133 Cr.P.C. and that too in the manner and method in which he initiated and completed the same. The over enthusiasm, which the SDM has shown in his entire episode is staring and glaring on the face of it. After passing the conditional order and getting the order for excavating the drain executed in the manner mentioned above, he dropped the proceeding without recording any evidence. He also did not address to the plea of the petitioner that a Civil Suit was pending.
29. From the aforesaid discussions made on the basis of the materials on record, I have no hesitation to hold that the SDM proceeded with the matter with gross irregularity and illegality giving a complete good-bye to the mandatory requirement and procedure envisaged under Section 133 Cr.P.C. This being the position both on facts as well as on law, the entire proceeding in Case No. NGR 478 (Ex)/06 is liable to be set aside and quashed, which I accordingly do.
30. Writ petition is allowed, without, however, any order as to costs. The Registry shall transmit the LCR to the Court below alongwith the copy of this judgment and order.