Delhi District Court
Harkishan Yadav vs ) State on 2 December, 2016
In the Court of Sh. Ajay Kumar Jain, Additional Sessions
Judge02, South District, Saket Court, Delhi.
Criminal Revision No. 06/2016
In the matter of :
Harkishan Yadav
S/o. Late Bhagwan Sahai
R/o. Village SaidulAjaib,
New Delhi ......Revisionist.
Versus
1) State
2) Surender Singh
S/o. Swarup Singh
R/o. House No. 53,
Village SaidulAjaib,
New Delhi .....Respondent.
Date of assignment : 29.02.2016
Reserved for order on : 01.12.2016
Date of decision : 02.12.2016
O R D E R
1) By way of present criminal revision petition, revisionist
challenged the impugned order dated 16.02.2016 passed by Shri Vikas Ahlawat, SDM, Seket, New Delhi in case titled as State Vs. Harkishan Yadav under section 133 Cr.P.C.
2) Brief facts of the case are that in the year 2010 a complaint was lodged by Sh. Surender Singh i.e. respondent No. 2 Cr. Revision No. 06/2016 Page No.1/8 herein before the concerned SDM alleging public nuisance by way of obstruction/illegal encroachments in public land comprise in Khasra No. 278 of Village Saidullajab, New Delhi by respondent. Thereafter, notices were issued to the parties and after hearing the contentions of the parties, an order under section 133 Cr.P.C. dated 06.01.2014 was passed with directions to the revisionist Harkishan Yadav to remove the said illegal construction/obstruction immediately and to appear before the SDM Court on 31.01.2014 to file the compliance or to show why this order should not be enforced. However, the revisionist not complied the order, but preferred to show cause why the order under section 133 Cr.P.C. dated 06.01.2014 be not enforced.
3) During proceedings, complainant Surender Singh contended that the revisionist constructed the L shape boundary wall on the public land on the pretext that it will be used for storing the building material till the time work of renovation of his house is complete, however, despite completion of renovation he did not remove the said encroachment despite requests from the resident of the village. He further contended that this chowk land is the only place where the water tank get stationed to distribute the water to the people of the area and also used as parking by the residents. The reports were also called from the Halka Patwari which revealed that the said land was encroached by the revisionist by constructing a boundary wall which causes obstruction/nuisance to the residents of the village and apprehension of breach of peace. The objections to the reports Cr. Revision No. 06/2016 Page No.2/8 filed by the revisionist in which he alleged that the said land does not form the part of public land and denied the existence of public land. The complainant also filed the reply and stated that the land in question is a public land and encroachment of public land is creating nuisance and obstruction by the nearby neighbours. He further alleged that revisionist is sitting on the land with more share than as shown in revenue records.
4) After hearing the contentions, it was observed by Ld. SDM that the disputed land forms the part of Khasra No. 278 and on the site there exists a Y shape public pathway which separates the property of Harkishan Yadav from the disputed site and the disputed site seems to be an open chowk on which some building material is lying and at the right side there is a small wall alleged to have been raised by revisionist Harkishan Yadav. It is also held that on 21.05.2012, the revisionist agreed to remove the encroachment, however, later he chose to contest the proceedings and trying to take the benefit of joint ownership of the Khasra. It is also submitted in the report that revisionist is occupying the land more than his share, though it is not disputed that the disputed land is the part of Khasra No. 278 and the sizra of the site available shows that the disputed site is separated from the ownership of revisionist by a pathway. However, in any case, the ownership of the revisionist has to be contiguous and cannot be accepted to be scattered in bits and pieces. Besides this, the existence of Y shape pathway has not been denied by both the parties. It is further observed that with the time the use of the land Cr. Revision No. 06/2016 Page No.3/8 by the public transforms into the right. Though there is no record to show that the disputed land is recorded as a public chowk, but the testimony of 10 people on affidavit and on local inquiries by the revenue officials revealed that the disputed land was being used as a public chowk since long time and a direction vide order dated 17.12.2014 was passed for removing the illegal construction/obstruction on the public chowk (disputed land) and the order dated 06.01.2014 made absolute.
5) Thus, according to this order, the revisionist is found to have been occupying land more than his share and the disputed land though not found as a part of public land, but it transforms into public land as a right because of being used as a public chowk since a very long time. The revisionist not able to show categorically that disputed land is a part of his share though being the part of Khasra No. 278.
6) However, this order was challenged by way of criminal revision and Ld. Additional Sessions Judge (South) vide order dated 28.01.2015, observed that trial record suggests that public right was specifically denied by revisionist, however, no specific order was passed by the Ld. SDM under section 137 (2) of Cr.P.C. as to whether any reliable evidence in support of such denial exists and furthermore no proceedings were conducted by the SDM under section 138 Cr.P.C. before passing final order. Accordingly, the order dated 17.12.2014 was set aside vide order dated 28.01.2015 from the stage of Section 137 Cr.P.C. and Ld. SDM was directed to first record a finding about the denial of public right Cr. Revision No. 06/2016 Page No.4/8 by the revisionist and thereafter may proceed in accordance with Section 137 and 138 Cr.P.C.
7) Pursuant to this order, fresh notices were issued and the revisionist again denied the public rights and filed the detailed submissions in this regard. The main plea of the revisionist remains that the revenue authorities as per record states that the disputed land forms the part of Khasra No. 278 which is a private land and respondent is one of the land holders. Furthermore, in compliance of directions of Ld. Additional Sessions Judge, an inquiry under section 137 Cr.P.C. was conducted wherein the Tehsildar and the Executive Magistrate were directed to file the detailed report. Pursuant to this, a detailed report dated 05.10.2015 was submitted in which it is reported that the disputed land is part of Khasra No. 278 and a Y shape public pathway exists on the site which separates the house of revisionist from the disputed site and the site seems to be an open chowk and its right side has been blocked by the wall raised by Harkishan Yadav. After considering the reports and arguments, the Ld. SDM observed that the public pathway separates the property of Harkishan Yadav from the disputed site and the disputed site seems to be a part of open chowk and right side of it has been blocked by a small wall raised by the revisionist. Ld. SDM also taken consideration other pleas as discussed before and vide impugned order dated 16.02.2016, made the conditional order dated 06.01.2014 absolute and directed the revisionist to remove the illegal construction/obstruction on the public chowk (disputed Cr. Revision No. 06/2016 Page No.5/8 land) in Khasra No. 278. This impugned order is challenged through the present revision petition.
8) The main plea in the present revision is that the Ld. Magistrate based on the objection and documents submitted is required to satisfy himself with regard to denial of public rights, however, if he is not satisfied with the denial of public rights on the subject land, then it requires the Magistrate to hold an inquiry by taking evidence under section 138 Cr.P.C. before passing any final order. However, in present case, without taking any evidence, the Ld. SDM passed the impugned order. Counsel for the revisionist relied upon the judgments i.e. Krishna Sahu & Anr. Vs. State AIR 1966, Calcutta 215, Gowdappa Gowda Vs. Tippan Gowda 1964 (1) Cr.L.J. 11 (Mysore) and Darsan Ram Vs. State 1958, Law Suit (Patna) 108.
9) Ld. Counsel for the respondent No. 2 (complainant) stated that as per the contentions of the revisionist, the Ld. SDM committed error by overlooking the procedure laid down and this fact is categorically mentioned in the grounds of revision petition where it is specifically submitted by the revisionist that SDM was required to give his finding under section 137 (2) and if no such evidence is found, the SDM should have directed parties to lead evidence in order to proceed with the inquiry as laid down in section 138 Cr.P.C. Ld. Counsel for the complainant submitted that the complainant has no objection if the matter is again remanded back to the SDM to complete the inquiry after fully complying the procedures as envisaged under section 137 and Cr. Revision No. 06/2016 Page No.6/8 138 Cr.P.C. However, Ld. Counsel for the revisionist submitted that despite opportunity, Ld. SDM had not complied the procedure and now the matter cannot be remanded back and impugned order dated 16.02.2016 is liable to be set aside and complainant if have any grievance should approach civil Court.
10) Considering the fact there is a categorical report that the disputed land is used as a public chowk since long and thus falls into the category of public land despite being the part of Khasra No. 278. Therefore, in these circumstances, the proceedings conducted under section 133 Cr.P.C. cannot be held to be not maintainable per se despite the undisputed fact that the disputed land forms the part of Khasra No. 278 which is a private land, however, as the Ld. SDM has not followed the procedure prescribed in letter and spirit because Section 137 (2) mandates if there is no evidence to suggest public right do not exist, then Magistrate shall proceed as per procedure laid down in Section 138 Cr.P.C. which mandates Magistrate shall take evidence in the matter as in summon case. Therefore the impugned order dated 16.02.2016 is set aside and the matter is remanded back with the directions to conduct the proceedings by complying mandate of Section 137 (2) and 138 Cr.P.C. However, it is also clarified that the conditional order dated 06.01.2014 remain in force till the completion of enquiry. Parties are directed to appear before the Ld. SDM on 17.12.2016 at 10.00 A.M. Revision petition is disposed of accordingly.
11) Copy of the order alongwith Trial Court record be Cr. Revision No. 06/2016 Page No.7/8 returned back. File of the revision petition be consigned to Record Room.
Announced in the open Court (AJAY KUMAR JAIN) On 02nd day of December, 2016 Additional Sessions Judge02, South District, Saket Courts, New Delhi Cr. Revision No. 06/2016 Page No.8/8