Decided on June 10,1983

STATE Respondents


- (1.) THIS Revisional application under section 401 read with section 482 of the Code of Criminal Procedure is directed against order dated 10. 2. 83 passed by the Sub-divisional Magistrate (Executive) Howrah Sardar in M. P. 1793 of 1982 : MC 332 of 1982. By the impugned order passed in a proceeding under section 133 Cr. PC the learned Magistrate has ordered "so I order under section 133 cr. PC that the opposite parties must remove the said Khatal along with its animals immediately that is by 17. 2. 83 failing which the O. C. Bally P. S. is directed to remove the said Khatal along with the animals in such a distance that the said nuisance is removed. " The order quoted seems to have been, passed under section 142 of the Code.
(2.) OPPOSITE party No. 2 in the present proceedings filed in the Court of Sub-divisional Magistrate ( Sardar ) Howrah an application under section 133/142 of the code against the present petitioners and some others on 21. 9. 82. In the said petition it was alleged that he was the owner of the property situate at 5, Girish Ghosh road, Belur, P. S. Bally measuring about 20 cuttahs and the said land was situate in a crowded residential locality. It was alleged further that the opposite parties forcibly and illegally occupied the' said land and began to use the land as a Khatal keeping thereon a number of cows and buffaloes and started business in milk. Local people complained to the petitioner and requested him to arrange for removal of the khatal as they were put to physical discomfort arising from the user of the land as a khatal. It was alleged that the local people had informed the thana about the nuisance and health hazards caused by the location of a khatal on the land and there were occasions when the opposite parties were convicted under the provisions of the Cattle Trespass act. Apprehending injury and suffering to the local people and spread of epidemic disease on account of the existence of the khatal, the opposite party No. 2 made a prayer in the said petition for drawing up proceedings under section 133 Cr. P. C. against the opposite parties and for passing an order restraining the petitioners from running the aforesaid khatal, keeping the buffaloes and cows on the disputed property and also for an order for removal of the khatal. Points to be noted are that the petition was not verified ; the petitioner was not examined in support of the petition nor any evidence was taken; nor documentary evidence was produced to show that local people ever complained about physical discomfort or apprehended injury to health to the local thana or that any of the petitioners was ever convicted under the cattle Trespass Act and finally there is no averment in the petition that the petitioner resided or carried on business on a place situate close to the disputed property and himself suffered any physical discomfort or apprehended any injury. The perusal of the petition conveys the impression that the petitioner being dispossessed from the land where the khatal was put up by the opposite party was interested in getting back possession of that land by having the khatal removed and for the above purpose he made a reference to the danger to public health. Upon the said petition the learned magistrate passed an order drawing up proceedings under section 133 Cr. P. C. and made a conditional order why the khatal would not be removed and directed the opposite parties to show cause by 30. 9. 82. Section 133 of the Code permits passing of a conditional order on the basis of a report of a Police Officer, In the instant case the conditional order just mentioned was not passed on any Police report still it appears from the order dated 29. 11. 82 that a police report was called for by the learned Magistrate. Seeing the police report the learned Magistrate came to know of complaints made by local people about bad smell emanating from the khatal and the likelihood of mosquito being bred causing health hazards. The learned Magistrate still called for a report from the Chairman of the Bally Municipality. Thereafter the order impugned was passed on 10. 2. 83. The report from the Commissioner Bally municipality was received in the meantime.
(3.) MR. Moitra the learned advocate for the petitioners before this Court challenges the legality and correctness of the final order passed dated 10. 2. 83. In addition he challenges the correctness of the initial order dated 21. 9. 82. The notice served on the opposite party bearing date 1. 10. 82 appears to have been signed by the Executive Magistrate (Sadar) Howrah. It is urged that a District Magistrate or a sub-divisional magistrate or any other Executive Magistrates specially empowered in this behalf is only competent to pass an order under section 133 (1) of the Code and the notice on its face does not show that the Executive Magistrate signing the notice was specially empowered. This point is not taken serious note of. as this point has not been taken in the revision petition rather it is admitted that the learned S. D. M. (Ex.)Howrah drew up the proceedings.;

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