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Delhi District Court

Pratap Singh Yadav vs The State Nct Of Delhi on 21 November, 2024

                                   IN THE COURT OF SH. LOVLEEN
                                ADDL. SESSIONS JUDGE-03, SOUTH EAST
                                    SAKET COURTS, NEW DELHI

                   DLSE010065572023




                   Criminal Revision No. 401/2023

                   SH. PRATAP SINGH YADAV
                   S/O LATE SH. RAM PRASAD YADAV
                   R/O 403/157, GVK, MARKET,
                   MAIN ROAD, JOGABAI, JAMIA NAGAR,
                   OKHLA, NEW DELHI- 110025.


                                                                            ....Revisionist
                                                   VERSUS


                   1.      STATE ( GOVT. OF NCT OF DELHI
                           THROUGH PUBLIC PROSECUTOR

                   2.      SH. BHIM SINGH YADAV
                           S/O LATE SH. RAM SINGH YADAV
                           R/O 4-X/ 901, GURJINDER VIHAR,
                           A.W.H.O. COMPLEX, GREATER NOIDA,
                           UTTAR PRADESH, PIN 201310.

                                                                          .... Respondents

LOVLEEN

Digitally signed
by LOVLEEN         CR No. 401/2023    Pratap Singh Yadav vs State & Ors     Page no....1 of 17
Date: 2024.11.21
14:08:36 +0530
                                      Date of institution                            :     09.06.2023
                                     Date of reserving the order                :   25.07.2024
                                     Date of pronouncement                      :   21.11.2024



                                                        JUDGMENT

1. This is Criminal Revision u/s 397 of the Code of Criminal Procedure, 1973 preferred by revisionist against the impugned order dated 31.05.2023 passed by the Sub-Divisional Magistrate, Defence Colony, Delhi in a Kalandra arising out of DD No. 11A dated 25.11.2019, PS Jamia Nagar. The said Kalandra u/s 133 CrPC was instituted against the revisionist herein by SI Kamal Kumar, PS Jamia Nagar as police discovered that the revisionist has created unlawful obstructions upon a religious place (Mandir) situated as Plot No. 403/157A, Jogabai Village, Jamia Nagar, New Delhi with an intent to grab the same illegally.

BRIEF FACTS

2. As per said Kalandra, on 10.06.2019, a complaint was made by one Bhim Singh Yadav alleging that he discovered the said plot to have been locked by some unknown person when he visited the same LOVLEEN CR No. 401/2023 Pratap Singh Yadav vs State & Ors Page no....2 of 17 Digitally signed by LOVLEEN Date: 2024.11.21 14:08:40 +0530 a day prior ( i.e. on 09.06.2019). Upon inquiry, it was discovered that the revisionist herein had put locks upon the said plot as he wanted to grab the property in order to sell it further to some other builder. On 10.06.2019 itself, another complaint made by one Ayaz Mobin, Naushad Chaudhary and Mirza Wasim Beg was also received at PS, who claimed that they had entered into a collaboration agreement with one Gaurav Yadav and Vishal Yadav, both sons of revisionist herein in order to re-develop the said plot but a day prior (i.e. on 09.06.2019), some villagers of Village Jogabai tried to enter into the said plot. Another complaint dated 10.06.2019 was made by revisionist herein, claiming himself to be the absolute owner of the said plot, having inherited the same from his ancestors. Revisionist claimed that some villagers are now trying to disturb his peaceful possession over the said plot.

3. Police carried out local inquiry and learnt that the plot measures 230 square yards, out of which 180 square yards is vacant and the rest of the 50 Square yards houses small religious structures. Police also LOVLEEN learnt that the possession of the said plot was with the revisionist.

by LOVLEEN CR No. 401/2023 Pratap Singh Yadav vs State & Ors Page no....3 of 17 Date: 2024.11.21 14:08:46 +0530

4. Subsequently, in July 2019, one Parvez Alam made a complaint to the DCP, Sarita Vihar claiming that the elders of Jogabai Village had earmarked the said plot as a common land for ' Dev Sthal' and that the revisionist and some others, in connivance with the officials of PS Jamia Nagar, wish to misappropriate the said land in favour of some builder for constructing shops and flats, after demolishing the 'Dev Sthal' and chopping the Peepal Tree. The said complaint was entrusted to PG Cell / South East, Delhi. Inquiry conducted by PG Cell revealed that the said plot is a land earmarked for 'Dev Gan' and for Holika Dehan for Village Jogabai. Inquiry revealed that the revisionist Pratap Singh and his family members were creating nuisance and obstruction to the general public by putting locks upon the said plot. Revisionist claims to have inherited the said plot from his father through a Will, but the inquiry revealed that his father did not have any right to make any Will in respect of the said plot. Inquiry concluded that revisionist and his family members have illegally occupied the said plot. In view of the said conclusion in the inquiry LOVLEEN conducted by PG Cell, SED, the said Kalandra u/s 133 CrPC was Digitally signed by LOVLEEN Date: CR No. 401/2023 Pratap Singh Yadav vs State & Ors Page no....4 of 17 2024.11.21 14:09:05 +0530 drawn up against the revisionist and was forwarded to the SDM, Defence Colony. The SDM, Defence Colony disposed of the said Kalandra vide impugned order dated 31.05.2023.

GROUNDS OF REVISION

5. Following grounds have been taken by revisionist/ petitioner to challenge impugned order:-

10.1). That impugned order dt. 31.05.2023 is passed on whim and fancy, conjecture and surmises and without application of judicial mind, hence not sustainable and liable to be set aside.

10.2). That the Ld. trial court failed to appreciate that Nisan dehi of Village Mata or Holi wala Plot was identified on 17.01.1984 and Fard Nisan dehi was prepared and signed by number of persons, where in neither plot No. is given nor its area measurements are given, the Ld. trial court erred in not finding the truth of document dt. 17.01.1984.

10.3). That the Ld. trial court failed to appreciate that it was not the case of the complainant that Mata or Holi wala plot was a big plot and part of it was sold to Chaudhary Iqbal.

10.4). That the Ld. trial court failed to appreciate that there are constructed building measuring more than 200 sq. yard in multi storey between the Village Plot and private property of the petitioner. 10.5). That the Ld. trial court failed to appreciate as LOVLEEN to who was in possession of the private property ever Digitally signed by LOVLEEN CR No. 401/2023 Pratap Singh Yadav vs State & Ors Page no....5 of 17 Date: 2024.11.21 14:09:10 +0530 since 1990 to till date.

10.6). That the Ld. trail court failed to appreciate that there is no evidence or documents as who installed 7 devgans in the private property of the petitioner. 10.7). That the Ld. trial court failed to appreciate that Nisan dehi dt. 17.01.1984 related to plot sold to Iqbal Chaudhary or to private property of the petitioner. 10.8). That the Ld. trial court failed to find out whether the village plot with Kuan/well is the same as property of the petitioner.

10.9). That the Ld. trial court failed to appreciate that private property has no village well as well as two devgans.

10.10). That the Ld. trial court failed to appreciate that photographs produced by petitioner relate to actual village Mata or Holi wala plot which depicts village well and persons are performing Pooja there on the well.

10.11). That Ld. trial court failed to appreciate that FIR U/s. 420, 448, 467, 468, 471, 120B/34 IPC is a false FIR, there is no trial or finding that petitioner is guilty.

10.12). That the Ld. trial court failed to appreciate that civil suit is pending between the parties in respect of the private property of the respondent and no court of law has yet declared that petitioner is not the owner of plot No.403/157A Village Jogabai, Jamia Nagar, Okhla, New Delhi- 110025.

LOVLEEN 10.13). That the Ld. trial court erred in deciding the issue No.1,2,3 in favour of the respondent No.2 and Digitally signed by LOVLEEN against the petitioner.

CR No. 401/2023 Pratap Singh Yadav vs State & Ors Page no....6 of 17 10.14). That Ld. trial court erred in accepting the layout sketch, Nazri Naksha Moka prepared by Halka Patwari not in his official capacity, Nazir Naksha of Pooja sthal plot, layout of Khasra no. 161, FIR No.262/19, U/s. 420, 448, 467, 468, 471, 120B/34 IPC and Kalendra U/s. 133 CrPC.

10.15). That Ld. trial court erred in holding the statement of various persons in inquiry/ investigation are true without giving opportunity to cross examination of the same.

10.16). That Ld. trial court erred in holding that the private property of the petitioner is the Village Pooja Sthal Plot.

10.17). That Ld. trial court erred in accepting and realizing on true the vigilance report, status report, report of 10 DIU and order of rejection of anticipatory bail.

10.18). That Ld. trial court failed to appreciate that conduct of any ceremony on private property in the absence of village Mata Mata or Holi wala Plot, with the permission of owner, do not become the property of the village.

10.19). That the Ld. trial court erred in taking into consideration of family dispute in passing erroneous order dt. 31.05.2023.

10.20). That the Ld. trial court failed to appreciate that document i.e. Naksha, sketch are not the part of public document on record, they are false and created document, with their authenticity. It is stated that the LOVLEEN petitioner has obtained a RTI. Copy of the same is filed herewith.

14:09:20 +0530 CR No. 401/2023 Pratap Singh Yadav vs State & Ors Page no....7 of 17 10.21). That the Ld. trial court erred in ignoring all the submission, documents, various complaints of villagers, against the respondent No.2, alleging false allegation, rejecting the complaint by BCD, photographs and videos of various ceremonies on actual village Mata Mata or Holi wala Plot. 10.22). That the Ld. trial court erred in accepting the forged and fabricated letter showing that the petitioner has accepted that the private property is village pooja sthal plot.

10.23). That the Ld. trial court erred in holding that there was compromise between the parties. 10.24). That the Ld. trial court failed to appreciate that not only complainant but others have created sale documents in respect to the properties of the petitioner, no reference is made in the impugned order.

10.25). That Ld. trial court failed to appreciate that lodging of FIR its true facts can be ascertained during trial and mere allegations does not declare the petitioner as guilty.

10.26). That the Ld. trial court failed to appreciate that property partition is of ancestral property and not the personal property therefore in partition it is not necessary to give the particulars of the personal property.

10.27). That the ld. trial court erred in holding that LOVLEEN Pooja plot was a bigger plot neither any one disclosed its area nor mentioned in documents dt.

by LOVLEEN 17.01.84, it is when petitioner disclosed the area of Date: 2024.11.21 his private property as 230 sq. yard everyone says 14:09:24 +0530 CR No. 401/2023 Pratap Singh Yadav vs State & Ors Page no....8 of 17 that the village plot is of 230 sq. yard. If present plot is 230-240 sq. yard that what area was sold by Sh. Tekchand to Iqbal Chaudhary which includes the Village well.

10.28). That the Ld. trial Court erred in accepting the statement of Sh. Bal Kishan, who is elder brother of petitioner, who have misappropriate several family properties and every member has grievances with him, therefore since petition supporting other members of family, he is anti to the petitioner. 10.29). That the Ld. trial court erred in holding that unregistered will has no value.

10.30). hat the Ld. trial court failed to appreciate that there is no title documents of properties situated in Abadi deh area the Naksha only show khasra number and not the particulars of owner.

10.31). That the Ld. trial court erred in accepting the voice recording of Bhag Singh and W/s of Bhupender Singh which are manipulation by the respondent No.2. 10.32). That Ld. trial court failed to appreciate that Bhag Singh, Bhupender Yadav, Bal Kishan, Iqbal Chaudhary are not being cross examined and their statement not recorded on oath.

10.33). That the Ld. trial court failed to appreciate that the marriage video was with written permission of Late Sh. Ram Prasad and after his death with the permission of the petitioner, the document is matter of record.

LOVLEEN 10.34). That ceremonies of kuan poojan is false and Digitally signed there is no well in the private property of the by LOVLEEN Date: petitioner, there is question of ceremony of kuan 2024.11.21 14:09:28 +0530 CR No. 401/2023 Pratap Singh Yadav vs State & Ors Page no....9 of 17 poojan.

10.35). That presently only Savitri W/o Late Sh. Beg Raj, Narender S/o Late Sh. Champat and Karan S/o Late Sh. Om Prakash and family of petitioner are only in existence remaining all have sold their properties including Bhim Singh and went away to other places. There is no need of pooja sthal which is already sold in 1986-87, therefore the existing family with permission conduct their house ceremony with permission in the property of petitioner as his private deties exist therein.

10.36). That Ld. trial court failed to appreciate the creation of sale documents for the property of the petitioner by the respondent No.2, his associates and other persons is ignored by the Ld. Trial Court in his order. Copy of those documents are placed on record. 10.37). That Ld. trial court failed to appreciate that all R/o of Abadai deh have no title documents and therefore it is necessary to seek declaration through court of law.

10.38). That Ld. trial court failed to appreciate that ever since 1978 to till 2018 no one has disputed the title or possession of the petitioner for such a long period.

10.39). That Ld. trial court failed to appreciate that after sale of village pooja sthal no action has been taken against Tekchand and Ram Singh by the villagers.

LOVLEEN 10.40). That the Ld. trial court erred in rejecting the document produced by petitioner submission of the Digitally signed petitioner. And by LOVLEEN Date:

2024.11.21 14:09:57 +0530 CR No. 401/2023 Pratap Singh Yadav vs State & Ors Page no....10 of 17 10.41). That the Ld. trial court failed to appreciate that, had the respondent correct there would have been several persons joined the proceedings. 10.42). That the Ld. trial court erred in granting the relief and wrongly decided the kalandra and passed the impugned order dt. 31.05.2023. 10.43 That even after request for personal visit/ inspection of site the Ld. trial court failed to do SO.

10.44). That Ld. trial court decided the Kalandra erroneously, without deciding the title of the petitioner.

10.45). That the Ld. trial court passed the impugned order dt. 31.05.2023 in mechanical manner and arbitrarily way without application of judicial mind.

6. It is prayed the impugned order may be set aside.

SUBMISSIONS OF RESPONDENT NO. 2 BHIM SINGH YADAV

7. The submissions made by the respondent are very brief.

Respondent claims that the present revision petition is not maintainable, being premature. It is argued that the revisionist should have approached the SDM concerned u/s 135 Cr.P.C for redressal of his grievances.

DISCUSSION LOVLEEN

8. I have heard arguments addressed by respective counsel and Digitally signed by LOVLEEN Date: 2024.11.21 14:10:01 +0530 CR No. 401/2023 Pratap Singh Yadav vs State & Ors Page no....11 of 17 perused the records.

9. Admittedly, the Kalandra u/s 133 CrPC filed against the revisionist was received and entertained by the SDM concerned on 12.11.2020. At the directions of the SDM concerned, a notice was directed to be issued to the revisionist herein as well as respondent no.

2 Bhim Singh Yadav. The noting sheets of the Trial Court Record reflects that certain documents were filed on record by both the said parties. Arguments were then advanced by both the said parties and finally, vide the impugned order, the SDM concerned disposed of the said Kalandra with the following observations:

"ISSUE NO 4-RELIEF Therefore, I hereby conclude/decide that the Puja- Sthal Property known as Holika Dahan and Mata Pujan Place is common property of the residents of Village Jogabai. Party No. 2, Sh. Pratap Singh Yadav along with his family members have created a nuisance and obstructions for worship of general public of Village Jogabai by putting locks on the gates, fixing the iron ladder, parking of their cars, allowing the vendors just near the gates of the plot and fixing iron sheets to cover Devgans. He has even erected a temporary hut on the site in suit during Covid period sometime in Oct-Nov 2020 much after the Status Report of the then SDM which was LOVLEEN submitted to the Hon'ble District Court at Saket in Delhi.

I, therefore, order Municipal Corporation of Delhi Digitally signed by LOVLEEN Date: 2024.11.21 14:10:05 +0530 CR No. 401/2023 Pratap Singh Yadav vs State & Ors Page no....12 of 17 (Central Zone) and Police Authorities concerned to remove all these public nuisances created by Sh. Pratap Singh Yadav and his family members on the Puja-Sthal (Holika Dahan/Mata Pujan) plot of village Jogabai in Khasra No. 161 (Abadi Deh), so that the village residents can have un- interrupted access to this Puja-Sthal for doing their respective Puja."

(emphasis supplied)

10. Before addressing the arguments of the revisionist regarding the merits of the case, it would be appropriate to deal with the procedure prescribed for dealing with the said Kalandra. Section 133 Cr.P.C falls in Chapter X 'Maintenance of Public Order And Tranquility' under Part-B dealing with 'Public Nuisances'. Part B 'Public Nuisances' infact begins with Section 133 Cr.P.C. Section 133 Cr.P.C empowers a District Magistrate and/ or a Sub-Divisional Magistrate to pass a conditional order against any person who, as per report made by police or some other information, is unlawfully obstructing or creating nuisance in a public place. The said authorities could order the said person to remove such obstruction or nuisance within a fixed period of time. In case, the said person objects to the said order, the said authorities may direct his personal appearance and to show cause Digitally as to why the said order may not be made absolute. Section 134 signed by LOVLEEN LOVLEEN Date:

2024.11.21 14:10:08 CR No. 401/2023 Pratap Singh Yadav vs State & Ors Page no....13 of 17 +0530 CrPC deals with the service of said order (passed under section 133 Cr.P.C) upon the said person. Section 135 Cr.P.C enjoins such a person to obey the said order or to appear and show cause against the same. Section 136 Cr.P.C provides for penalty in case of non compliance of provisions under Section 135 Cr.P.C. Section 137 Cr.P.C provides the procedure for the said authorities to deal with the matter when the said person denies the existence of any public right.

Section 137 Cr.P.C prescribes that upon such a denial by the said person, the said authorities have to 'inquire' into the matter. Section 138 Cr.P.C inter alia prescribes that the said authorities 'shall take evidence in the matter as in a summons case'. Section 139 Cr.P.C empowers the said authorities to direct local investigation and examine any expert for the purpose of inquiry u/s 137 Cr.P.C. Section 141 Cr.P.C prescribes the procedure and penalty in case the initial order passed u/s 133 Cr.P.C is made absolute. Section 142 Cr.P.C empowers such authorities to issue 'injunctions' against said person in case of any imminent danger to public. Section 143 Cr.P.C empowers LOVLEEN such authorities to prohibit such person from repeating or continuing Digitally signed by LOVLEEN Date: 2024.11.21 14:10:12 +0530 CR No. 401/2023 Pratap Singh Yadav vs State & Ors Page no....14 of 17 with a public nuisance. Apparently, Part-B deals with all the situations which may arise in case of 'Public Nuisances' and also prescribes the procedure to deal with such public nuisances.

11. In the present case, the SDM, Defence Colony, while passing the impugned order u/s 133 Cr.P.C, has directed the Municipal Corporation of Delhi and the police authorities to remove the public nuisances created by the revisionist herein and his family members from the plot in question, so that the other residents of the village could have uninterrupted access to the Puja-Sthal. The said directions, passed by the SDM, Defence Colony, are not in accordance with the procedure prescribed u/s 133 Cr.P.C. The provision u/s 133 Cr.P.C empowers the SDM concerned to pass a conditional order only against the person who is causing any obstruction or nuisance in a public place. In other words, the directions under section 133 CrPC could have been passed only against the revisionist herein. Section 133 Cr.P.C does not empower the SDM concerned to pass directions straightaway to other authorities for removal of any public nuisance LOVLEEN before complying with the procedure elaborated under Part-B of Digitally signed by LOVLEEN Date: 2024.11.21 14:10:15 +0530 CR No. 401/2023 Pratap Singh Yadav vs State & Ors Page no....15 of 17 Chapter X Cr.P.C. Such a power (to direct other authorities to remove obstruction or nuisance) would vest in the SDM concerned under section 141 Cr.P.C only. In order to exercise the said powers, the SDM concerned is required to follow the procedure laid down under Part-B of Chapter X Cr.P.C, which includes holding on an inquiry under Section 137 Cr.P.C and taking evidence under Section 138 (1) Cr.P.C.

in case the person who has created obstruction or nuisance denies the existence of any public right in a place.

12. In the present case, the SDM concerned has erred in exercising powers u/s 141 Cr.P.C at a stage which permitted him to exercise powers u/s 133 Cr.P.C only. TCR does not reflect that any inquiry was conducted by him under Section 137 Cr.P.C, nor the same reflects that any evidence was recorded by the SDM concerned (under Section 138 (1) read with Section 274 Cr.P.C) before passing the impugned order.

As per settled law, where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. Reference Digitally signed by may be made to Nazir Ahmed vs King Emperor LOVLEEN LOVLEEN Date:

2024.11.21 14:10:18 +0530 CR No. 401/2023 Pratap Singh Yadav vs State & Ors Page no....16 of 17 MANU/PR/0111/1936, J.N. Ganatra vs Morvi Municipality MANU/SC/0635/1996, Commissioner of Income Tax Mumbai vs Anjum M.H Ghaswala MANU/SC/0662/2001 and Noor Mohammad vs Khurram Pasa MANU/SC/0959/2022.

13. In the facts and circumstances, the impugned order date 31.05.2023 is hereby set aside for being in violation of the prescribed procedure of law. The SDM concerned is directed to pass a fresh order in the matter and proceed further in the matter strictly in accordance with procedural law. It is clarified that none of the above observations shall cast any shadow on the merits of the case.

14. Let copy of this judgment be sent to Ld. Trial Court alongwith TCR.

Digitally signed by

15. Revision petition be consigned to Record Room. LOVLEEN LOVLEEN Date:

2024.11.21 14:10:23 +0530 Dictated and Announced (Lovleen) in the open court ASJ-03 (South-East), Saket Court, Delhi 21.11.2024 CR No. 401/2023 Pratap Singh Yadav vs State & Ors Page no....17 of 17