N.C. Talukdar, J.
1. Two points of law arise for consideration in the present Rule which was issued at the instance of the second-party petitioner directed against an order dated the 14th December, 1974 passed by Sri A. K. Pat-tanayak, Sub-divisional Magistrate, Contai in Misc. case No. 402 of 1974.
2. The facts need not be set down in details excepting to the extent as necessary appreciating the two points of law raised. The petitioner is a salaried officer of M/s. Bengal Salt Company, a public limited company carrying on manufacturing salt from sea water from the Bay of Bengal on solar process on the saline waste land of Contai Sea Coast. It is stated that the State of West Bengal participated in the share capital of the company on the basis of an agreement entered into between the company and the State since 1951. The company has in its possession about 1600 acres of salt bearing land for concentrating sea-water and crystallisation of salt and other processing and incidental purposes and the said lands include R. S. Plots Nos. 9, 15, 16 and 57 forming the subject-matter at issue in the proceedings. A petition was filed by the first-party before the learned Sub-Divisional Magistrate, Contai under Section 133 of the Code of Criminal Procedure and the learned Magistrate by his order dated the 7th December, 1974 went through the said petition dated 3-12-74 as also an enquiry report by the J. L. R. O., Contai, and drew up proceedings under Section 133 of the Code of Criminal Procedure directing the second-party petitioner to remove the obstruction forthwith and if he chooses so to do to appear on 20-12-74 before him and show cause as to why the order should not be made absolute. This order has been impugned and forms the subject-matter of the present Rule.
3. Mr. S. N. Gharai, Advocate (with Mr. Anath Bandhu Pal, Advocate) appearing in support of the Rule raised two points of law as mentioned before. Firstly that the initiation has been bad because the learned Executive Magistrate had himself taken part in the local enquiry held on the 3rd December, 1974 and as such he should not have ultimately initiated the proceedings on the basis of the report submitted by the J. L. R. O., Ramnagar II on the order of the learned Magistrate, Secondly that the sine qua non of a proceeding under Section 133 is an unlawful obstruction or nuisance that should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public. But in the present case, the same is conspicuous by its absence as on ultimate analysis the R. Rs. would show that plots Nos. 9, 15, 16. and 57 are not in any way public or lawfully used by the the public. Mr. Sekhar Kumar Basu, Advocate, appearing for Mr. Durgapada Dutt, Advocate (with Mr, Apurbalal Basu, Advocate) on behalf of the first party-opposite parties Nos. 2 to 7, joined issue, submitting that it is rather early to quash the proceedings as only the court had only drawn up the proceedings under Section 133 of the Code of Criminal Procedure and called upon the second-party to remove the obstruction or to show cause. He further submitted that the objections taken on behalf of the second-party petitioner are neither warranted by law nor on merits. Mr. S.P. Talukdar, Advocate appearing on behalf of the State of West Bengal, submitted that quashing is an extraordinary proceeding and should not be resorted to at the early stage but on the question of law regarding initiation, he submitted that there are some defects and it is the Court who should consider what are the impacts thereof,
4. Having heard the learned Advocate, appearing on behalf of the respective parties and on going through the materials on the record, we find that there is much force behind the first dimension of Mr. Gharai's submission relating to the initiation, but as on merits the materials are not yet forthcoming, we do not consider it fair to make any observation thereupon at this stage. Coming now to the first dimension of Mr. Gharai's contention, we find from the report itself that the learned Executive Magistrate had taken part himself in the local enquiry held on the 3rd December, 1974 and as such should not have initiated the proceedings on the basis of a report submitted toy J. L. R. O. who himself records that he enquired into the matter on the material date as amin and in the presence of the learned S. D. O. Contai along with officers. The procedure adopted accordingly is not in accordance with law and the discretion to be exercised by the Court directing such an enquiry must be a discretion unfettered by considerations which are not envisaged by the provisions of the section. In view of the facts and circumstances of the case, there has been a non-conformance to the said principle and as such we hold that the initiation has been bad.
5. Coming now to the second branch of Mr. Gharai's contention, it appears that on the footing that the disputed plots are plots belonging to private ownership having been recorded in the record of rights as factory or tank or path. Prima facie it appears that Section 133 of the Code of Criminal Procedure would not apply if that be the ultimate position. Mr. Basu appearing for Mr. Dutt on behalf of the first party opposite parties Nos. 2 to 7 submitted that apart from the record of rights referred to by Mr. Gharai, there are other documents which would establish the position the other way and in any view this Court may be pleased not to come to any ultimate decision on the said point at this stage. We agree with Mr. Basu that at this stage it is not possible for us to come to any decision either way and we leave the point open. The first dimension of the submission raised by Mr. Gharai goes to the very root of the case at the stage of initiation and in view of our findings already arrived at as above, we hold that the proceedings are not maintainable.
6. In the result, the Rule is made absolute; and we quash the impugned order dated the 14th December 1974 passed by Sri A. K. Pattanayak, Sub-divisional Magistrate, Contai under Section 133 of the Code of Criminal Procedure.
A.N. Banerjee, J.
7. I agree.