Rajasthan High Court - Jodhpur
Ram Narayan vs State & Ors on 24 July, 2013
Author: Sandeep Mehta
Bench: Sandeep Mehta
SB Criminal Misc. Petition No.278/2010
Ram Narayan. Vs. State of Rajasthan & Ors.
(1)
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
:::
JUDGMENT
:::
S.B. Criminal Misc. Petition No.278/2010
Ram Narayan. vs. State of Rajasthan & Ors.
Date of Judgment :: 24th July, 2013.
HON'BLE MR. JUSTICE SANDEEP MEHTA
Mr.MK Garg, for the petitioner.
Mr.AR Nikub, PP for the State respondents.
...
BY THE COURT :
Heard learned counsel for the parties.
The instant misc. petition has been preferred on behalf of the petitioner challenging the order dated 10.2.2010 passed by the learned Additional Sessions Judge No.2, Bikaner Camp at Sri Doongargarh in Criminal Revision No.34/2009 whereby the revisional court whilst rejecting the revision petition filed by the petitioner, upheld the order dated 24.7.2006 passed by the learned S.D.M., Sri Doongargarh in Criminal Case No.2/2006 whereby he directed removal of the construction raised by the petitioner by holding the same to be an encroachment and a public nuisance under Section 133 Cr.P.C.
SB Criminal Misc. Petition No.278/2010 Ram Narayan. Vs. State of Rajasthan & Ors. (2) Succinctly stated the facts of the case are that the respondents no.2 to 4 filed a complaint in the Court of learned S.D.M., Sri Doongargarh under Section 133 Cr.P.C. The allegation levelled in the complaint was that the complainants were the residents of the Momasar Bas locality through which a road bisecting ward no.8 and ward no.4 passed from east to west. The complainants alleged that on this road, Sugan Nath and Ram Narayan (petitioner) had encroached by planting some stone slabs towards the western side and thereby, had committed an encroachment by extending their possession on 15 feet of the road area. The complainants alleged that before the encroachment was made, the road was about 20 feet wide but because of the encroachment, the passage of the people through the said road had been narrowed and obstructed. It was further alleged that the encroachers had also encroached upon the pipeline of the P.H.E.D. A notice of the complaint was issued to the petitioner. The petitioner filed a reply and stated that he had not committed any encroachment on any public land. He further took a plea that the complainants were the members of Land Mafia and were not having any property in Momasar Bas and their own encroachment has been removed by the Municipality on a complaint made in this regard. It was also SB Criminal Misc. Petition No.278/2010 Ram Narayan. Vs. State of Rajasthan & Ors. (3) mentioned that no person named Sugan Nath was living in the locality. A specific plea was taken that the petitioner was not having possession of any land in excess of his patta and that construction raised by him was in consonance with the building line.
The learned S.D.M. directed physical verification and called for a report. The Municipal Board, Sri Doongargarh after conducting physical verification forwarded a report dated 14.7.2006 which was taken on record. The learned S.D.M. thereafter placing reliance on the pleadings of the parties and the map prepared by the Municipal Board, vide his order dated 24.7.2006 held that the petitioner as well as one Jal Nath had encroached upon the public road and thereby they committed public nuisance and directed removal of encroachment allegedly made by the petitioner on the road. The petitioner challenged the said order in revision and the revisional court affirmed the same by order dated 10.2.2010.
Now, the petitioner has approached this Court by way of the instant miscellaneous petition seeking quashing of the orders impugned.
Whilst considering the misc. petition, this Court vide order dated 27.7.2011 directed the S.D.M., Sri Doongargarh to submit the latest report regarding the position of the SB Criminal Misc. Petition No.278/2010 Ram Narayan. Vs. State of Rajasthan & Ors. (4) disputed property/encroachment. The S.D.M. has forwarded a report dated 12.12.2011 along with the map prepared by the Municipal Board. The map discloses that Ram Narayan's house is located on the Northwest corner at the cross roads. The road is shown to be 16.5 feet wide at a particular place whilst the same is 22.5 feet wide at some distance. In front of the house of Jal Nath, the road is only 15 feet wide. There is variation in the width of road at various spots. The report also reads that the obstructing electricity pole has been shifted elsewhere.
Assailing the orders passed by the subordinate Courts, the learned counsel for the petitioner submits that the finding of the learned S.D.M. in the impugned order that the petitioner had encroached upon the road is absolutely incorrect. He contends that the fard mauka dated 14.7.2006 prepared by the Municipal Board shows that the petitioner was having possession of 163 feet land from west to east and as per the physical verification report, the actual land in possession of the petitioner was 5 feet less than what was shown in his patta. No other neighbour of Ram Narayan was found to be having a patta for their respective properties. It was also reported that to the north west corner of Ram Narayan's house, an electric pole and shrub were standing in the middle of road which were causing the hurdles on the SB Criminal Misc. Petition No.278/2010 Ram Narayan. Vs. State of Rajasthan & Ors. (5) road. He submits that the electric pole has been shifted as per the report dated 12.12.2011 and the petitioner admittedly is having possession of his own property and has not encroached upon any public land/road. He further contends that the physical verification carried out by the officials of the Municipal Board establishes that the petitioner was having possession over 163 feet land from West to East whereas the patta which he was having showed excess land of 5 feet. He thus submits that the direction issued to the petitioner in this matter to remove the encroachment is absolutely illegal because the land which the petitioner possesses is his own land and on physical verification, the petitioner was found in possession of lesser land than what he owns as per his patta. Thus, he prays that the order impugned deserves to be quashed because the same is based on misreading of the facts.
Notice of the misc. petition was issued to the respondents no.2 to 4 but nobody has appeared on their behalf.
Learned Public Prosecutor has vehemently opposed the arguments advanced by the learned counsel for the petitioner.
Heard and considered the arguments advanced by the learned counsel for the parties and perused the orders SB Criminal Misc. Petition No.278/2010 Ram Narayan. Vs. State of Rajasthan & Ors. (6) impugned as well as the record and the report dated 12.12.2011.
From a perusal of the report dated 12.12.2011 forwarded by the S.D.M., Sri Doongargarh and the map annexed thereto, it is apparent that the petitioner's land is broadly within the building line which is shown to be existing on the road in question. The road is having different width at different places. Thus, it is apparent that no consistency has been maintained in the building line adjunct to the road in question but it is not clear from record as to whether the inconsistency in width is due to the encroachments or the same existed at the time of issuance of the pattas. The learned S.D.M. whilst directing the removal of the encroachment did not peruse the ownership documents of the various concerned persons and without recording any evidence directed the petitioner to remove the possession from the land in question. The report dated 14.7.2006 submitted to the S.D.M. by the Municipal Board in pursuance to the direction for physical verification nowhere mentions that the petitioner had encroached upon any government land/road. On the other hand, the report specifically mentions that the possession of the petitioner is five feet short of the land shown in his patta. Therefore, the order dated 24.7.2006 passed by the learned S.D.M., Sri SB Criminal Misc. Petition No.278/2010 Ram Narayan. Vs. State of Rajasthan & Ors. (7) Doongargarh directing the petitioner to remove his possession from the land in question is ex-facie illegal and is based on misreading of facts and thus, amounts to abuse of process of Court.
The upshot of the above discussion is that the instant misc. petition succeeds and the order dated 24.7.2006 passed by the learned S.D.M., Sri Doongargarh as affirmed by the order dated 10.2.2010 passed by the learned Additional Sessions Judge No.2, Bikaner Camp at Sri Doongargarh are hereby quashed.
Stay petition also stands disposed of.
Record be sent back forthwith.
(SANDEEP MEHTA), J.
S.Phophaliya