N.K. Sen, J.
1. This Rule which was issued at the instance of the second party to a proceeding under Section 133 of the Code of Criminal Procedure, is directed against an order dated 13-12-1957 passed by Shri S. N. Chakravarty, Magistrate First Class, Burdwan, by which he directed that certain encroachments said to have been caused by the petitioner should be removed.
2. The matter in controversy between the parties arose in the following way. The petitioner owns and possesses a tank named 'Bara Tal-bona' which is situated at village Koyor and is recorded in settlement Khatian as Dag No. 2612. A village public road runs from Koyor Railway station and passes by the adjoining east and south of the tank. Two roads recorded as public roads in the settlement khatian as Dag Nos. 673 and 1973 mark the eastern and southern boundaries of this tank. The opposite parties who claim to represent the inhabitants of this village allege that the petitioner in the month of June, 1953 encroached upon the public road with the adjoining east and south of the tank by placing earth on portion of the road running along the two banks. Thinking that the right of the public to pass along the road was being interfered with by the alleged encroachment on the path way some villagers made a verbal complaint to the President of the Local Union Board who, however, took no notice of this matter. Therefore, towards the close of January 1954 some villagers sent a written complaint to the Engineer. District Board, Burdwan about this alleged encroachment, the District Board being recorded as the owner of the roads. It appears that the Sub-Overseer of the District Board reported that there was some encroachment but the President of the local Union Board, being requested to take action remained inactive and ignored the request until a second request was made. This time the Surveyor to the District Board with the help of the Sub-Overseer surveyed the bank and the roads and reported that there was an encroachment. On 27-8-1954 upon this report the President of the local Union Board was requested to take action. No 'action appears to have been taken at all, and the District Engineer, too, then did not move any further in the matter. The details as to how the proceeding came to be instituted are set out above in order to have a clear idea as to how the alleged encroachment was treated as a nuisance by the authorities, since the District Board authorities and the local Union Board did not think it necessary to take any steps for the removal of the alleged encroachment. The villagers submitted a petition 'Exhibit 1' to the Sub-Divisional Officer of Burdwan, whereupon the present proceeding was drawn up against the petitioner. The petitioner in due course filed his written statement denying the existence of the public right over the disputed portion of the pathway. Thereafter, evidence wastaken under the provisions of Section 137 of the Codeof Criminal Procedure but before a final order couldbe passed therein, the matter was taken up in revision to this Court. The Rule that was issued (Criminal Revision case No. 820 of 1955) was finallydisposed of on the 16th of July, 1955 by DebabrataMookerjee, J., who discharged the Rule refusing tointerfere with the matter at that stage. Thereafter,the learned Magistrate concluded the enquiry andpassed a final order which was again challenged ina Revisional application made to this Court (CriminalRevision No, 630 of 1956). The Rule that was issued,was finally made absolute and the order of the Courtbelow was set aside on 8-3-1957. The matter wassent back to the Court below to be re-heard fromthe stage it reached after allowing an opportunityto the petitioner to adduce evidence in rebuttal ofthe evidence of the court witnesses. Thereafter, thematter went back and in the result, the previous orderpassed by the learned Magistrate was confirmed.In the proceeding that was drawn up it was statedthat the second party had encroached upon apublic road in plots Nos. 1973 and 693 in MouzaKoyor by raising an embankment measuring
145 Ft. x 2Ft. + 6 Ft. + 128 Ft. x 8 Ft+7 Ft.
and thereby causing obstruction to the public. The petitioner filed his written statement and his case was that the tank in question belonged to him. He admitted that he had indeed, placed some earth on the embankments but there was no encroachment. So far as the trees stood on the bank his case was that these trees had existed there for a very pretty long time & as such even if there was any encroachment, they did not exist for a very long time and therefore, the proceeding under Section 133 of the Code of Criminal Procedure was not called for.
3. Mr. J.M. Banerjee appearing on behalf of the petitioner has submitted various points for my consideration. In the first place, he has complained of the incongruous findings arrived at by the Court below and he argues that on the basis of these findings an order under Section 133 cannot be allowed to stand. He has, next, complained that the evidence in the case does not justify the order that was made and lastly, causing inconvenience to traffic does not amount to a nuisance for the removal of which an order under Section 133 of the Code of Criminal Procedure is called for.
4. It appears that several persons surveyed the plots for the purpose of finding out if there was an encroachment and if so, the extent of it. The learned Magistrate could not place any reliance on the evidence of the Sub-Overseer of the District Board (P. W. 3) and on the evidence of the Surveyor of the District Board (P. W. 4). He therefore, examined the Pleader-Commissioner as Court witness No. 1, who was engaged for the purpose of making survey of the disputed banks of the tank. The encroachment was supposed to be upon the public road adjoining to the east and south of the tank which, admittedly, belonged to the petitioner. P. W. 3, the Sub-Overseer of the District Board found the encroachment as follows:
(a) On the eastern side i. e., on the road east of
the bank 145' ft. in length x 2' ft. (on the north) --------------------------------------- 2
plus 6 ft. on the south, and
(b) On the road south of the tank 128' ft. x 8' ft. --------------- 2
+ 7' ft. ------ 2
5. It will be noticed that in the proceeding the alleged encroachment was stated to be exactly what this witness has stated. About his evidence the learned Magistrate observes that he did not prepare any sketch map not to speak of a field book. His report does not contain even the plot numbers. P. W. 4 for the first party is the District Board Surveyor who said that he surveyed the road, east of the tank, the eastern bank and the adjoining lands but he did not survey the road south of the tank. According to him the encroachment on the eastern road was from north to south:
70 Ft. x 5 Ft. + 10 Ft. + 133 Ft.x10 Ft. + 70 Ft. x
10 Ft. + 0 Ft.
The learned Magistrate observes that as for this witness he produced a sketch map eight or nine months after his survey. He said that he did not submit his sketch map along with his report. His report to the Engineer (Exhibit 6) does not even show that he made any survey or prepared any sketch map. The learned Magistrate, therefore, concludes in the following terms:
'In these circumstances, it is to me clear that the evidence of these two witnesses (3 and 4 or their report regarding the encroachment is far from reliable or acceptable. It is for these reasons that I find it necessary to ask Shri Mondal (Court witness No. 1), the senior most Pleader Commissioner of Burdwan Civil Court, to make a detailed survey'.
6. Mr. Banerjee submits that although the learned Magistrate thoroughly disbelieved the prosecution witnesses 3 and 4, yet he says that the encroachment will not be less than 145' ft, as specified by the Sub-Overseer and noted in the proceedings. With regard to the petitioner's case, the learned Magistrate has found that, admittedly, there are several old trees on the bank of the pond. The witnesses of the first party say that they formerly belonged to the road but they had shifted to the bank as a result of the placing of earth by the second party. The second party's case is that the trees all along were on the bank. The Court witness has stated that there are few trees appearing fifteen or sixteen years old. Upon a consideration of the evidence, the learned Magistrate has come to the conclusion that the encroachment on the aforesaid southern portion is pretty old and as the Court witness could not give the precise location of the trees, the benefit must go to the second party, i.e. the petitioner. Mr. Banerjee, on this point, complains that the learned Magistrate not having accepted that there was any encroachment on the south was wrong in coming to a contradictory finding that there was no obstruction to the south which was causing serious inconvenience to the traffic.
7. As regards the evidence of the Court witness the complaint which Mr. Banerjee has made is that the witness himself has admitted that certain boundary of some of the near-about plots in the locality does not agree with the said boundary as per c. s. map. The c. s. map. was stated to be wrong by this witness and he admitted that if the c.s. map was accepted as correct then it would lessen the encroachment by the second party. This witness admitted that the c. s. map was found to be wrong in some places. He proceeded on the basis that the learned Magistrate refused to accept the c. s. plot to be wrong. The learned Magistrate proceeded on the basis that in the absence of sufficient materials. to show that the c. s. map in this particular case was wrong, he could not presume it to be wrong. On the basis of this finding Mr. Banerjee for the petitioner argues that having accepted the correctness of the c. s. map the Court below was wrong in proceeding upon the evidence of court witness No. 1 alone. Summing up the above points Mr. Banerjee for the petitioner argues that the proceeding itself was bad inasmuch as the encroachment mentioned therein was based on a report of the Sub-Overseer whose evidence in Court was disbelieved.
8. Two other points of law were also urged on behalf of the petitioner, by Mr. Banerjee namely that the learned Magistrate was wrong in referring to and placing reliance upon the evidence of witnesses recorded by him while proceeding under Section 139A of the Code and secondly, that the finding of a mere inconvenience to traffic as has been arrived at in this case did not entitle the Court to make an order under Section 133 of the Code and upon this finding, the proper order to make was to refer the parties to the Civil Court.
9. The Rule has been opposed by Mr. Sambhu Nath Banerjee on behalf of the State and Mr. Satya Priya Ghosh for the opposite parties. Mr. Ghosh appearing on behalf of the opposite parties in answer to the above contentions of the petitioner argues that in a proceeding under Section 133 of the Code, a Court was only to find out if there was any unlawful obstruction or nuisance which should be removed from any pathway, river or channel used by the public. He has submitted that in the present case the roads upon which encroachment had been made were, admittedly, public pathways which may be lawfully used by the public. Mr. Ghosh has also argued that the proceedings under Section 133 of the Code being essentially of a summary nature and the learned Magistrate having found that there was an encroachment which was causing inconvenience to traffic, this Court would not be justified in interfering with the order that was passed.
10. On behalf of the petitioner Mr. Banerjee relied on a decision of the Lahore High Court in the case of Emperor v. Tulsi Ram decided by Young, C.J., and Tekchand, J., 39 Cri LJ 775: (AIR 1938 Lah 523). Their Lordships held that Section 133 of the Criminal Procedure Code was not intended for longstanding obstructions But for an unlawful obstruction lately built in a public place and on proof of urgency or imminent danger to the public interest that action under Section 133 etc. could be taken and this provision should not be allowed to be used as a substitute' for litigation in Civil Courts. Chapter X of the Code deals with 'public nuisances' and provides a speedy and summary method for dealing with them in cases of great emergency and where there is imminent danger to the public interest. The fact that an obstruction has been allowed to stand without objection in a public place for many years itself indicates that there is no such emergency or imminent danger to the public interest. The existence of a long-standing obstruction cannot, therefore, without proof of something having recently happened, be considered to be a public nuisance. This case was followed by the same High Court in the case of Consolidation Co-operative Society v. Har Govinda, 40 Cri LJ 758: (AIR 1939 Lah 276). On the authority of these decisions Mr. Banerjee argues that in the present case there was no finding of any imminent danger to public interest nor was there any finding that something had recently happened which could be considered to be a public nuisance and as such, the order passed by the learned Magistrate was insufficient for making the order that he passed. Mr. Sambhu Nath Banerjee who has appeared for the State to oppose the Rule has drawn my attention to two cases.
11. He cited the case of Jagroshan Bharthi v. Madan Pande, AIR 1927 Pat 265 where Jwala Prasad, J., said that encroachment upon a public road is an obstruction to the public path and it is a nuisance in itself under Section 268 of the Indian Penal Code. No length of user could justify an encroachment upon a public way and the question of a sufficient width of the road being left in support of encroachment for public use was no ground for allowing the encroachment or obstruction to continue. He, however, observes that it was the duty of the Magistrate to come to a finding whether the claim of the person complained of to such encroachment was bona fide or not and the question of possession was relevant for that purpose. Mr. Shambhu Nath Banerjee also cited a case of the Allahabad High Court, Queen-Empress v. Kedar Nath ILR 23 All 159 where it was held that any obstruction upon a public road was a nuisance within the meaning of Section 133 of the Code of Criminal Procedure, whether in point of fact, it caused practical inconvenience or not.
12. It is true that in the present case, the learned Magistrate has not found anything more than the obstruction was causing inconvenience to the traffic in my judgment, this finding is not enough for the purpose of passing an order under Section 133. In this connection, it will be further seen that the learned Magistrate's conclusion cannot be supported in the face of his own finding to which my attention was drawn. Once he finds the settlement map to be correct, he was not justified in placing an implicit reliance upon the court witness No. 1, Pleader Commissioner. It is also true that the learned Magistrate has relied upon the evidence that was taken while he proceeded under Section 139A of the Code. The Criminal Procedure Code, indeed, provides for taking evidence at two stages, once when the existence of a public right is denied and thereafter under Section 139. In the case of Lal Behari Dey v. Jatindra Chandra Dey, 52 Cal WN 12: (AIR 1949 Cal 57) Lodge, J., who decided that case has pointed out that a Magistrate cannot make any final order merely upon enquiry under Section 139A without thereafter proceeding under Section 137 or 138 of the Code. It appears that although the learned Magistrate has referred to the evidence taken under Section 139A, he has not implicitly relied upon the same. Therefore. I do not think that any prejudice has been caused to the petitioner thereby. In view, however, of the fact that upon the evidence adduced in the case, the learned Magistrate has come to different findings, this order passed by him cannot be allowed to stand.
13. The next question for consideration is if the matter is to be re-heard again. Having given my anxious consideration, I think that since the evidence in the case, does not disclose any case of urgency or imminent danger, the present proceeding must not be made a substitute for a Civil Suit.
14. In the result, therefore, I set aside the order passed by the learned Magistrate and make the Rule absolute.