Calcutta High Court (Appellete Side)
Mrinal Kanti Panda vs Tapan Kumar Kamila & Anr on 6 May, 2014
Author: R. K. Bag
Bench: R. K. Bag
1
17.
06.05.2014
F.B. CRR No. 182 of 2013 Mrinal Kanti Panda Vs. Tapan Kumar Kamila & Anr.
In the matter of : An application under Section 482 of the Code of Criminal Procedure, 1973 and read with Article 227 of the Constitution of India;
Mr. Milan Chandra Bhattacharyya, Mr. Subhajit Panja ..... For the Petitioner.
The affidavit-of-service filed on behalf of the petitioner is kept with the record.
The petitioner has preferred this criminal revision challenging the order dated 13th December, 2012 passed by learned Executive Magistrate, Contai, Purba Medinipur in Misc. Case No. 766 of 2012, by which learned Magistrate directed the petitioner not to construct any building without approval of the local authority and not to encroach on the land of any other person or on public land and also to remove illegal construction made on the disputed land.
It appears from the materials on record that the opposite party started one proceeding under Section 144 of the Code of Criminal Procedure against the petitioner and the said case was 2 registered as Misc. Case No. 766 of 2012 before the Court of learned Executive Magistrate, Contai, Purba Medinipur. It also appears from the orders passed by learned Executive Magistrate in the said proceeding that some portion of the land in question belonged to the opposite party and the petitioner was constructing building on some portion of the said land. It also appears from record that learned Executive Magistrate called for report from the Block Land & Land Reforms Officer, Contai-I and from the Inspector-in-Charge of Contai Police Station in respect of the said land and about the maintenance of peace in the said locality. The copy of orders passed by learned Executive Magistrate do not indicate that the Block Land & Land Reforms Officer, Contai-I and the Inspector-in-Charge of Contai Police Station submitted any report in connection with this proceeding before learned Executive Magistrate till the date of passing the impugned order on 13th December, 2012. It is pertinent to point out that the Chairman of Contai Municipality is not a party to the proceeding under Section 144 of the Code of Criminal Procedure. Surprisingly, it appears from the impugned order that the Chairman of Contai Municipality has submitted a report in this proceeding on which learned Magistrate has acted, though no report from the Block Land & Land Reforms Officer, Contai-I and from the Inspector-in-Charge of Contai Police Station was submitted before learned Magistrate.
With the above factual matrix, Mr. Milan Chandra Bhattacharyya, learned counsel appearing for the petitioner submits that the impugned order passed by learned Executive Magistrate is illegal as learned Magistrate passed the order of demolition of the structure which is not permissible under 3 Section 144 of the Code of Criminal Procedure. According to Mr. Bhattacharyya, the impugned order is liable to be set aside.
None appears on behalf of the opposite parties in spite of service of notice as reflected from the affidavit-of-service filed by the petitioner.
On consideration of the impugned order challenged in this criminal revision, I find that learned Executive Magistrate called for the report from the Block Land & Land Reforms Officer, Contai-I and from the Inspector-in-Charge of Contai Police Station for the purpose of arriving at his satisfaction for drawing up the proceeding under Section 144 of the Code of Criminal Procedure, 1973. However, learned Magistrate passed the impugned order giving some direction to the petitioner and also direction to the Chairman of Contai Municipality to remove the illegal construction done by the petitioner on the land in question without considering the report of the Block Land & Land Reforms Officer, Contai-I and the report of Inspector-in- Charge of Contai Police Station. Had learned Magistrate been satisfied about the apprehension of breach of peace, he would have drawn up the proceeding under Section 144 of the Code of Criminal Procedure, 1973 without calling for the reports from two public officers viz. Block Land & Land Reforms Officer, Contai-I and the Inspector-in-Charge of Contai Police Station. Since learned Magistrate passed the impugned order without recording his satisfaction about the apprehension of breach of peace, I am of the opinion that the impugned order passed by learned Magistrate is not legal and valid. Accordingly, learned Magistrate acted in excess jurisdiction conferred on him by law by passing the impugned order which is liable to be set aside.
4In view of my above findings, the impugned order dated 13th December, 2012 passed by learned Executive Magistrate, Contai in Misc. Case No. 766 of 2012 is set aside. The criminal revision is disposed of.
The department is directed to send a copy of this order to the learned Court below for favour of information and necessary action.
Criminal Section is directed to supply urgent Photostat certified copy of this order to the petitioner, if applied for, after compliance with all necessary formalities.
( R. K. Bag, J. )