Delhi District Court
Sh. Balraj vs The State on 10 December, 2015
1
IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE
(SOUTHWEST)02, DWARKA COURTS : DELHI
(Crl. Revision No. : 28/15)
Unique Case ID No. : 02405R0057822015
Case DD No. : 119/RA/KH/2014
U/s145 Cr. P.C
Sh. Balraj
S/o late Sh. Begraj
R/o V.P.O,Rawta, Delhi ... Petitioner
Vs.
1. The State
Govt. of NCT of Delhi
2. Sh. Rajbir Singh
S/o Sh. Lilu Ram
R/o V.P.O Rawta, Delhi .... Respondents
Date of institution of case 19.5.2015
Date on which, order have been reserved 23.11.2015
Date of pronouncement of order10.12.2015
ORDER
The present revision petition has been filed on behalf of the petitioner against the impugned order dated 16.4.2015 passed by SDM/RA, Kapashera in the Case No. 119/RA/KH/2014, u/s 145 Cr. PC, titled as "State Vs. Rajbir Singh & Balraj."
2. Brief facts necessary for disposal of the present revisionpetition are that a C.R No. 28/15 1/7 2 complaint was made by the complainant Rajbir Singh ( respondent no.2 herein) before the SDM/RA Kapashera , New Delhi alleging therein that the petitioner herein namely Balraj had encroached upon the Rasta leading to the house of respondent no.2 by constructing a wall in front of his house although the said land did not belong to the petitioner. On the other hand, petitioner herein stated that the land in question is part of old abadi area and belong to him and it was being used as gher since many years. Further, both the parties admitted before the SDM/RA Kapashera that land in question was lying vacant and nothing existed on it before the defendant Balraj (petitioner herein) started constructing wall upon it. Thereafter, the inquiry into the claims of both the parties was conducted by the SDM/RA Kapashera and upon inquiry, SDM/RA Kapashera was unable to determine as to which of the said parties was in possession of the aforesaid land and accordingly, vide impugned order dated 16.4.2015 SDM/RA Kapashera authorized and required Tehsildar, Kapashera to attach the land in question by taking and keeping possession thereof and to hold the same under attachment until the decree or order of a competent court determining the rights of the parties or the claim to possession shall have been obtained.
Aggrieved by the aforesaid order dated 16.4.2015, the petitioner Balraj has filed the present revision petition, wherein it has been prayed that the said impugned order dated 16.4.2015 my be set aside/quashed.
3. Upon filing of the present revisionpetition, Ld. Addl. PP accepted the notice on behalf of respondent no.1State.
Notice was also issued to the respondent no.2Rajbir and he entered his appearance and contested the present revisionpetition.
Relevant record of SDM/RA, Kapashera {hereinafter referred as TCR} C.R No. 28/15 2/7 3 was also summoned and the same has been received.
4. I have heard the arguments on the revisionpetition put forward by the Ld. counsels for the petitioner and respondent no.2 and Ld. Addl. PP for respondent no.1State and have carefully gone through the record of the case.
5. It has been submitted by the Ld. counsel for the petitioner that the impugned order dated 16.4.2015 passed by the SDM/RA, Kapashera was neither sustainable in law nor on the facts of the case. It is further submitted that SDM/RA, Kapashera has committed manifest error, while passing the impugned order as the ingredients of section 145 Cr. PC had not been complied with as there was no evidence on record for any apprehension of breach of peace. It is submitted that there was no dispute at all about the land belonging to the petitioner and the respondent as the land/house of the petitioner is situated in the old abadi of village Rawta, whereas the plot of the respondent is situated in the extended abadi of village Rawta, Delhi. It is further submitted that SDM/RA, Kapashera had committed error, while passing the impugned order and proceedings u/s 133 Cr. PC has been dropped/dismissed against the petitioner, which implies that the petitioner has not encroached upon any passage or land of the respondent. It is submitted that SDM/RA, Kapashera has erred in ignoring the demarcation report in respect of the demarcation carried out by the revenue authority on 05.11.2014, wherein it has been clearly stated that the petitioner has not encroached upon any land/rasta either belonging to Gaon Sabha or any land belonging to the respondent. It is further submitted SDM/RA, Kapashera has failed to appreciate that there was no complaint in respect of any apprehension of breach of peace, which is precondition for taking the cognizance u/s145 Cr. PC and in the absence thereof, the SDM/RA, Kapashera has wrongly concluded that there C.R No. 28/15 3/7 4 was apprehension of breach of peace or that there was a dispute of title between the parties and had thus wrongly attached the property of the petitioner. It is submitted that SDM/RA, Kapashera has failed to properly appreciate that the statement recorded on 02.1.2015, wherein the witnesses have clearly stated that the possession of the petitioner was very old one and was situated in the old Lal Dora of village Rawta, Delhi and therein it has also been stated that petitioner has not encroached upon any land or the alleged rasta belonging to the respondent and this fact was also corroborated by the demarcation carried out by the revenue authority on 05.11.2014.
It has been further submitted that the impugned order was based upon conjecture & surmises and the same have been passed by the SDM/RA, Kapashera without properly appreciating the material on record. It is also submitted that the impugned order was not sustainable in law and it has been prayed that the impugned order dated 16.4.2015 passed by the SDM/RA, Kapashera may be set aside.
6. On the other hand, it has been submitted by Ld. Counsel for respondent no.2 that there was no illegality or irregularity in the impugned order dated 16.4.2015 passed by the SDM/RA Kapashera. It is further submitted that since the possession of the land in question was not determinable, the SDM/RA, Kapashera has correctly authorized and required Tehsildar, Kapashera to attach the land in question by taking and keeping possession thereof and to hold the same under attachment until the decree or order of a competent court determining the rights of the parties or the claim to possession shall have been obtained. It is submitted that SDM/RA, Kapashera has properly appreciated the dispute and has come to the right conclusions on the basis of material on record. It is also submitted that the C.R No. 28/15 4/7 5 SDM/RA, Kapashera has properly considered the material on record and there was no illegality and irregularity in the impugned order dated 16.4.2015 and it has been prayed that the present revisionpetition filed on behalf of the petitioner may be dismissed.
Further, Ld. Addl. PP for respondent no.1State submitted that appropriate orders in the fact and circumstances of the present case may be passed.
7. I have carefully considered the submissions made on behalf of the petitioner and respondents and have carefully gone through the record of the case. I have also carefully perused the TCR.
8. The present revision petition has been filed on behalf of the petitioner against the impugned order dated 16.4.2015 passed by SDM/RA, Kapashera in the Case No. 119/RA/KH/2014, u/s 145 Cr. PC, titled as "State Vs. Rajbir Singh & Balraj."
9. It has been submitted on behalf of the petitioner that the impugned order dated 16.4.2015 passed by the SDM/RA, Kapashera was neither sustainable in law nor on the facts of the case. It is further submitted that SDM/RA, Kapashera has committed manifest error, while passing the impugned order as the ingredients of section 145 Cr. PC had not been complied with as there was no evidence on record for any apprehension of breach of peace. It is submitted that there was no dispute at all about the land belonging to the petitioner and the respondent as the land/house of the petitioner is situated in the old abadi of village Rawta, whereas the plot of the respondent is situated in the extended abadi of village Rawta, Delhi. It is further submitted that SDM/RA, Kapashera had committed error, while passing the C.R No. 28/15 5/7 6 impugned order and proceedings u/s 133 Cr. PC has been dropped/dismissed against the petitioner, which implies that the petitioner has not encroached upon any passage or land of the respondent. It is submitted that SDM/RA, Kapashera has erred in ignoring the demarcation report in respect of the demarcation carried out by the revenue authority on 05.11.2014, wherein it has been clearly stated that the petitioner has not encroached upon any land/rasta either belonging to Gaon Sabha or any land belonging to the respondent. It is further submitted SDM/RA, Kapashera has failed to appreciate that there was no complaint in respect of any apprehension of breach of peace, which is precondition for taking the cognizance u/s 145 Cr. PC and in the absence thereof, the SDM/RA, Kapashera has wrongly concluded that there was apprehension of breach of peace or that there was a dispute of title between the parties and had thus wrongly attached the property of the petitioner. It is submitted that SDM/RA, Kapashera has failed to properly appreciate that the statement recorded on 02.1.2015, wherein the witnesses have clearly stated that the possession of the petitioner was very old one and was situated in the old Lal Dora of village Rawta, Delhi and therein it has also been stated that petitioner has not encroached upon any land or the alleged rasta belonging to the respondent and this fact was also corroborated by the demarcation carried out by the revenue authority on 05.11.2014. It is further submitted that the impugned order was based upon conjecture & surmises and the same have been passed by the SDM/RA, Kapashera without properly appreciating the material on record. It is also submitted that the impugned order was not sustainable in law.
The aforesaid submissions made on behalf of the petitioner have been denied on behalf of the respondent no.2, however, I find considerable force in the said submissions made on behalf of the petitioner as the perusal of the impugned order dated 16.4.2015 reveals that the SDM/RA, Kapashera has failed to properly C.R No. 28/15 6/7 7 appreciate the material and documents on record and has also not properly considered or dealt with the contentions put forward on behalf of both the parties. The perusal of the record also reveals that the SDM/RA, Kapashera has also not properly appreciated the material on record and have not given clear and specific findings in respect of the various contentions raised on behalf of the parties. In these circumstances, in my considered opinion, the impugned order dated 16.4.2015 passed by the SDM/RA, Kapashera is not sustainable in law and is liable to be set aside.
10. Thus, in view of the above discussion & observations and having regard to the fact and circumstances of the present case, the impugned order dated 16.4.2015 passed by the SDM/RA, Kapashera is set aside and the present matter is remanded back to the concerned SDM/RA, Kapashera, who shall hear the matter afresh and shall record the clear and specific findings in respect of the various contentions raised on behalf of both the parties and shall dispose of the matter in accordance with law.
Parties are directed to appear before the concerned SDM/RA, Kapashera on 22.12.2015 for Further Proceedings.
TCR alongwith copy of this order be sent back to the concerned SDM/RA, Kapashera.
In view of the above, the present revision petition filed on behalf of the petitioner stands disposed of.
Revision file be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(court on 10.12.2015) Addl. Sessions Judge
(SouthWest)02
Dwarka Courts, Delhi
C.R No. 28/15 7/7
8
CR No. 28/15
10.12.2015
Present: Petitioner Balraj in person
Sh. Pramod Kumar, Addl.PP for respondent no.1 State.
Respondent no.2 Rajbir Singh in person.
Vide separate order, announced in the open court, the impugned order dated 16.4.2015 passed by the SDM/RA, Kapashera has been set aside and the present matter has been remanded back to the concerned SDM/RA, Kapashera, who shall hear the matter afresh and shall record the clear and specific findings in respect of the various contentions raised on behalf of both the parties and shall dispose of the matter in accordance with law.
Parties are directed to appear before the concerned SDM/RA, Kapashera on 22.12.2015 for Further Proceedings.
TCR alongwith copy of the order be sent back to the concerned SDM/RA, Kapashera.
In view of the above, the present revision petition filed on behalf of the petitioner stands disposed of.
Revision file be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(court on 10.12.2015) Addl. Sessions Judge
(SouthWest)02
Dwarka Courts,
Delhi
C.R No. 28/15 8/7