Allahabad High Court
Shiv Narayan Singh vs State Of U.P. And Others on 30 August, 2024
Author: Subhash Chandra Sharma
Bench: Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:140084 Court No. - 82 Case :- CRIMINAL MISC. WRIT PETITION No. - 22541 of 2009 Petitioner :- Shiv Narayan Singh Respondent :- State of U.P. and Others Counsel for Petitioner :- Man Bahadur Singh Counsel for Respondent :- Govt. Advocate,Anil Kumar Pandey,Dinesh Kr.Mishra,Gokaran Singh,Harindra Prasad,R.P.Singh Parihar,Rishi Srivastava Hon'ble Subhash Chandra Sharma,J.
Pleadings have been exchanged.
Heard learned counsel for both the parties as well as learned A.G.A.
This writ petition has been filed with the following prayers:-
(i) A writ order or direction in the nature of certiorari quashing the impugned order dated 17.09.2009 passed by the learned Additional Sessions Judge Court No. 3, Mau in Criminal Revision No. 119 of 2008 (Shiv Narayan Singh Vs. State of U.P. and Another) as well as the impugned order dated 26.05.2008 passed by the learned City Magistrate, Mau in Case No. 5 of 2002 (State Vs. Smt Champa Singh and others) under Section 133 Cr.P.C.
(ii) A writ, order or direction in the nature of mandamus directing the respondents not to interfere in the peaceful possession of the petitioner over the land in question.
Facts in brief are that an application under Section 133 Cr.P.C. was filed by Sri Champa Singh opposite party no. 3 against the petitioners Shiv Narayan Singh and others before the City Magistrate with allegation that the opposite party has made an encroachment on the public pathway on which police report was called for and show cause notices were issued by the learned City Magistrate on 24.08.2002 with direction either to remove the nuisance or to appear and show cause before the learned court concerned. On 09.09.2002, in pursuance thereto the petitioner Shiv Narayan Singh/ opposite party appeared before the learned court concerned and filed objection thereafter the learned City Magistrate gave an opportunity of evidence to both the parties. After conclusion of evidence from both the parties learned City Magistrate passed the order dated 26.05.2008 by which conditional order was made final. Being aggrieved with the order passed by the learned City Magistrate a criminal revision was preferred before the learned court of Session by the petitioner which was also decided on 17.09.2009 while dismissing the revision. Being aggrieved with the aforesaid orders present writ petition has been filed before this Court.
It is submitted by learned counsel for the petitioner that there was no any public pathway but the land was sold in favour of the petitioner by coloniser on his private land on which he fixed his gate and he did never make obstruction in the public way. It is also submitted that a civil suit was filed by the present petitioner as original suit no. 1680 of 2000 (Shiv Narayan Singh Vs. Surya Kumar) in which rights of the parties are to be decided by the learned civil court which is competent in this regard. Where civil suit was pending before the learned civil court, proceedings under Section 133 Cr.P.C. cannot be finalized but in view of Section 137 Criminal Procedure Code the learned City Magistrate may have stopped the proceedings of the case but passed the order finally. It is also submitted that the master plan was only mentioned in the police report but no any such master plan was produced before the learned court. It is also submitted that in the said civil suit though Champa Singh was not made a party but she filed an impleadment application which is still pending. In this way, being civil suit pending before the competent court regarding the determination of rights of the parties no order under Section 133 Cr.P.C. can be passed by the learned City Magistrate. In this way, the learned City Magistrate as well as the learned revisional court did not consider the material on record in proper way but passed the orders in question without application of judicial mind, therefore, request to set aside the orders passed by the learned City Magistrate and learned Revisional Court.
Learned counsel for the respondent as well as learned A.G.A. opposed the prayer as aforesaid and contended that in the civil suit he was not made a party by the petitioner. She filed impleadment application, that is still pending. Non making of her as party shows malafide on the part of the petitioner. The impugned order is related to the removal of encroachment from the public pathway which was shown as such in the sale deeds concerned and the witnesses also asserted it as a pathway, therefore, order cannot be said to be illegal.
On considering the facts and circumstances of the case, submissions made by learned counsel for both the parties as well as learned A.G.A., perusal of record, the order passed by the learned City Magistrate and the judgment and order passed by the learned revisional court, it appears that in this case the land was purchased by the parties through sale deed in which the land in dispute was shown as pathway. On that land the construction was made by the petitioner regarding which present application was filed by Smt Champa Singh before the learned Magistrate for its removal under Section 133 Cr.P.C. on which the proceedings were initiated after calling police report. After giving opportunity of evidence to both the parties and recording the evidence the matter was decided by the learned City Magistrate. Likewise the learned revisional court also considered the material on record and the order passed by the learned City Magistrate in which from the evidence on record it was found that the land in dispute was public way as was apparent from the sale deeds executed by the owner of the land and also from the statements of witnesses in which they admitted that there was pathway measuring twelve Kadi (feet). It was also considered by the learned revisional court that in the civil suit Smt Champa Singh was not made as a party, therefore, any finding in that case cannot be said to be binding on her. In this way, it cannot be said that the rights between the parties are to be decided by the competent civil court before which civil suit is pending since the applicant Smt Champa Singh is not party in that suit. So far as argument of learned counsel for the petitioner is concerned, that she filed an impleadment application in that suit and if it is allowed, in that case the finding of the civil court shall also be binding on her, cannot be accepted as such unless on the basis of impleadment she is made party in the suit. Merely on the possibility of result on impleadment application no conclusion can be drawn in favour of the petitioner. In this way, this Court is of the considered view that the learned City Magistrate as well as learned revisional court had not committed any error in passing the orders dated 26.05.2008 as well as 17.09.2009 but this petition being devoid of merit is liable to be dismissed.
Accordingly, this writ petition is dismissed.
Order Date :- 30.8.2024 Suraj Srivastav