- (1.)This is an application under Article 227 of the Constitution of India read with sections 401 and 482 of the Code of Criminal Procedure, 1973 challenging the order dated 4th January, 2012 passed by learned Sub-Divisional Magistrate, Tehatta, Nadia in connection with case No. 577 of 2011 under section 133 of the Code of Criminal Procedure 1973 (hereafter to be referred as Code of 1973) thereby directing the petitioner (O.P. in said case) to remove the obstruction from P.W.D. road within seven days and on its failure to do so, the Assistant Engineer (Road) Plassy Highway Sub-Division to remove the same with the help of Inspector in-charge, Tehatta police station. It is the case of the petitioner that he is occupying plot No. 871 Mouza Tehatta, J.L. No. 101 P.S. Tehatta measuring about 720 sq. feet under permissive possession of one Khodabox Thandu Mondal for last 50 years for carrying his business of a restaurant providing sweet and tea. It is his further case that for running said business he paid tax to the Panchayat Samity and also had valid food licence issued by Food Inspector Tehatta R.P.M.C. It is his specific case that though the Assistant Engineer (Road) Plassy Highway Sub-Division, Nadia issued a notice dated 10th January, 2002 alleging that the petitioner encroached the highway land and directed the petitioner to remove the encroachment under section 10 of the West Bengal Highways Act, 1964, (hereafter to be referred as Act of 1964) but it was nowhere mentioned in said notice the plot number of the land alleged to be encroached by the petitioner being highway. It is further stated that the private respondent Bikash Kumar Biswas lodged a complaint before the Sub-Divisional Magistrate, Tehatta, Nadia alleging that the petitioner blocked the front of the shop of the O.P. by making a bamboo structure on P.W.D. highway road which initiated said case 577 of 2011. On receipt of one notice dated 22.12.2011 in connection with said case when the petitioner appeared before the learned Court on 4th of January, 2012, learned Court passed the impugned order without giving any opportunity of hearing the petitioner and without taking any evidence. The impugned order is bad in law and should be quashed by this Court.
(2.)Mr. Biswaroop Biswas, appearing for the petitioner, submits that the initiation of the case being case No. 577 of 2011 under section 133 of the Code of 1973 was not maintainable as there was an allegation of encroaching a public highway and that only a case under section 10 of the Act of 1964 could have been initiated for removal of said alleged encroachment of highway. According to him, when there is specific statute prescribing procedure for removing encroachment on public highway then it should not have been initiated under some general proceedings like section 133 of the Code of 1973. In support of his contention he has referred case laws reported in Chandra Kishore Jha vs. Mahavir Prasad & Ors., 1999 8 SCC 266, Manish Goel vs. Rohini Goel, 2010 4 SCC 3933 and Chief Information Commr. and another vs. State of Manipur and Another, 2012 AIR(SC) 864 In those case laws it was laid down that when a procedure is laid down statutorily and there is no challenge to the said statutory procedure the Court should adopt the prescribed statutory procedure and no other procedure to resolve the dispute.
(3.)Mr. Atish Kumar Biswas, learned counsel appearing for the private O.P., on the other hand, submits that under section 133 of the Code of 1973 there was specific provision for removal of unlawful obstruction or nuisance from any public place and hence it cannot be said that obstruction from highway can only be removed under section 10 of the Act of 1964 and not under section 133 of the Code of 1973.