Patna High Court
Isteyaque Ali vs State Of Bihar And Anr. on 29 September, 2000
Equivalent citations: 2001CRILJ904
Author: Deoki Nandan Prasad
Bench: Deoki Nandan Prasad
ORDER
1. This Criminal Revision has been filed by the sole petitioner against the order dated 25-9-1999 passed in M. Case No. 186/99 by which the learned Executive Magistrate passed an order under Section 133 of the Code of Criminal Procedure directing the petitioner to remove the wire fencing and drain from the 12 feet passage situated on Municipal Plot No. 577 measuring an area of 10 decimals.
2. The short facts giving rise to this Revision is that the Opposite party No. 2 had filed a petition before the learned Sub-Divisional Magistrate, Lohardaga stating therein that the land appertaining to Plot No. 1389 corresponding to Lohardaga Municipal Survey Plot No. 577 having an area of 10 decimals situated at village Nadia Amlatoli, Lohardaga has been purchased in the year 1935 from the ancestors of the petitioner in which there was 20 passage. It was further alleged that the petitioner wants to grab the said land and has blocked the said passage and also has been using the drain as a result of which the Opposite Party No. 2 is facing trouble. On the basis of the said petition, M. Case No. 186/99 was registered and the petitioner was noticed to show cause. Thereafter, the petitioner appeared and filed his show cause, denying the existence of any public road, but the learned Magistrate without giving any opportunity to the petitioner passed the impugned order which is illegal and fit to be set aside. The Opposite party No. 2 filed reply to the show cause stating therein that the land in question is the purchased land of grand-father of the Opposite Party No. 2 and it was purchased as back as in the year 1935. It is further alleged that the purchaser had left space of 12' as public road since 1936 and the same was also found correct by the Anchal Adhikari, who held local enquiry. It is also stated that the learned Sub-Dividional Magistrate entrusted enquiry to the Circle Officer, Lohardaga, who had submitted his report and on the basis of which the learned Sub-Divisional Magistrate passed the order directing the petitioner to remove the obstacles, which is quite legal and correct. It, is also stated that the petitioner taking advantage of old Khatiyan and ignoring the transaction already made, mutated the said land in his favour, against which revision has already been filed before the Deputy Commissioner, Ranchi, which is still pending. There is no illegality in the impugned order to be interfered with and as such the petition/revision is fit to be dismissed.
3. The learned counsel appearing on behalf of the petitioner submitted, at the very outset, that the learned Magistrate committed error in passing the impugned order without giving any opportunity to the petitioner to adduce evidence as to whether there was any passage or not, when the petitioner had already denied about the public passage at the spot. It is also submitted that the Opposite Party No. 2 had already filed a Title Suit being Title Suit No. 31 of 1999 in the Court of the learned Munsif, Lohardaga, which is still pending for adjudication and as such the learned S.D.M. has got no right to decide the case in a proceeding under Section 133, Cr.P.C., when the title suit for the same land is pending before the Munsif, who is the competent authority to decide the right, title and possession over the land in question. It is further argued that the rent in respect of the land in question was also fixed by the learned L.R.D.C. vide his order dated 1-8-1996 in favour of the petitioner and the petitioner has been paying the rent since 1952 till the date. It is also argued that the Opposite Party No. 2 had also filed an appeal being Appeal No. 6R-15 which was also decided by the learned Additional Collector, Lohardaga in favour of the petitioner, as the appeal was dismissed on 22-2-1999 and as such the learned Magistrate passed the impugned order without jurisdiction and it is fit to be set aside. The learned counsel for the petitioner also relied upon the cases reported in 1998 (46) 1 BLJR 58 (Dr. Om Prakash Mahansaria v. State of Bihar); 1998 (2) East Cri C 254 : (1998 Cri LJ 320) (Cal) (Bhanu Mandal v. Jaydeo Choudhary) and 2000 (1) PLJR 814 (Md. Yunus v. State of Bihar).
4. On the other hand, the learned counsel appearing on behalf of the Opposite Party No. 2 contended before me that there is no illegality in the impugned order. The learned Magistrate passed the impugned order after the matter enquired into by the Anchal Adhikari. It is also stated that the Opposite Party No. 2 had acquired the land in question by virtue of registered sale deed executed as back as in the year 1935. It is also submitted that due to obstacle made from the side of the petitioner, there is a nuisance and due to insanitary condition, the learned Magistrate has rightly passed the impugned order and as such the revision petition is fit to be dismissed.
5. Admittedly, the petitioner was noticed in the proceeding initiated under Section 133, Cr. P.C. in which he had also filed show cause denying the public passage. Section 137 of the Code of Criminal Procedure reads as under :
Section 137 (1) Where an order is made under Section 133 for the purpose of preventing obstruction, nuisance, or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under Section 138, inquire into the matter.
(2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Court; and, if he finds that there is no such evidence, he shall proceed as laid down in Section 138.
6. It is apparent that the learned Magistrate passed the impugned order without giving any opportunity to the petitioner to adduce evidence about denial of existence of public passage as claimed. Before passing of final order, for removal of nuisance, it is necessary that Opposite Party be allowed to adduce evidence in support of his denial. It is true that the learned Magistrate directed the Anchal Adhikari for enquiry and the Anchal Adhikari submitted his report, but that much enquiry conducted by the Anchal Adhikari will not suffice for the compliance of Section 137 of the Code of Criminal Procedure.
7. In Dr. Om Prakash Mahansaria's case (supra), this Court observed that as the petitioner was not allowed opportunity to adduce evidence in support of the denial after filing of the show cause in view of the provision of Sections 137 and 138, Cr.P.C., the passing of the final order under Section 138, Cr.P.C. without complying the provision as mentioned above is definitely against the provisions of law and as such liable to be set aside.
The same view has been reiterated in Md. Yunus's case (supra) and it was held that where the proceedee files show cause and denied the existence of public right the Magistrate is required to hold enquiry.
8. The law thus envisages a summary enquiry under Section 137, Cr.P.C. followed by full fledged enquiry under Section 138 in appropriate cases. In the case at hand, no enquiry was held by the learned Magistrate as required under Section 137, Cr.P.C. as well as the petitioner was not given an opportunity to adduce evidence about his denial of the existence of public passage. Apart from this, the Opposite Party No. 2 already filed a Title Suit No. 31/99 in the Court of Munsif, Lohardaga, which is still pending and it is pending before the competent jurisdiction for deciding the title and possession.
9. Keeping in view of the provisions of Sections 137 and 138 of the Code of Criminal Procedure, it is apparent that allegation of the petitioner that he was not allowed opportunity to adduce evidence in support of the denial, appears to be true and in such circumstances, the order impugned passed by the learned S.D.M., Lohardaga is fit to be set aside. Thus, I find merit in the Revision Application, which is accordingly allowed. The order impugned dated 25-9-1999 passed in M. Case No. 186 of 1999 is, hereby, set aside.
However, it is made clear that the learned S.D.M., Lohardaga is at liberty to initiate a fresh proceeding, if there is any apprehension of breach of peace for maintaining peace and tranquillity.