Allahabad High Court
Om Prakash Pandey vs State Of U.P. And 2 Others on 10 July, 2019
Author: Karuna Nand Bajpayee
Bench: Karuna Nand Bajpayee
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. -64 Case :- CRIMINAL REVISION No. - 685 of 2019 Revisionist :- Om Prakash Pandey Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Vimlendu Tripathi Counsel for Opposite Party :- G.A.,Himanshu Pandey Hon'ble Karuna Nand Bajpayee,J.
This criminal revision has been preferred against the impugned order dated 11.01.2019 passed by the City Magistrate, Gorakhpur u/s 133(1) of Cr.P.C. in Case No.D201805310000230 of 2017 (Mohd. Salim vs. Om Prakash Pandey), P.S.-Cantt., District-Gorakhpur.
Matter was taken up on 15.02.2019 by the preceding bench of this Court and the effect and operation of order dated 11.01.2019 passed by the City Magistrate was stayed until further orders. It was also specifically directed that status-quo with regard to nature of possession of land shall also be maintained. Certain directions were also given to the District Magistrate with regard to immediate measurement of the spot in question. Subsequently on 13.3.2019 Shri Himanshu Pandey, Advocate appeared on behalf of opposite party no.2. Matter was thereafter listed to come up on 3rd April, 2019 with the direction to learned A.G.A. to file counter affidavit. Later on case was again taken up on 31.4.2019 and the compliance report about the directions issued by this Court was filed on behalf of State. Matter was fixed up for final disposal on 17th April, 2019 and last opportunity to file counter affidavit was given to opposite party. Rejoinder affidavit if any, was also directed to be filed in the meantime. It further transpires that a listing application was moved to list the matter earlier as a result of which the matter was fixed up for today. The same has thus come up before this Bench and been taken up today by the Court.
Learned counsel appearing on behalf of revisionist at the very outset has submitted that despite the stay orders of this Court, the boundary wall in question has been demolished in complete violation of the Court's direction and not only a gross defiance of the order has been done but the authorities have acted in contempt of the same and a contempt application has already been moved before the appropriate bench of this Court in that regard. The urgency of the matter was placed before the Court.
On the query raised by the Court, learned A.G.A. as well as learned counsel appearing for opposite party no.2 have submitted that so far no counter affidavit has been filed. Some further time in that regard has once again been sought. This Court in the circumstances of the case feels that the matter was initially taken up on 15.2.2019 and since then sufficient time has been there to file counter affidavit. Last opportunity has already been given. This Court does not see any good justification to give further time for that purpose in the circumstance of the case. The matter has already been fixed for final disposal by the preceding Bench.
While going through the record of the case in hand, this Court has the occasion to go through the orders of this Court passed by the preceding Bench presided by Hon'ble Ajit Kumar, J. whereby not only precise and detailed directions have been given regarding the measurement of the land in question but after receiving the compliance report sent on behalf of the District Magistrate and after going through the same, the Court had proceeded to make pithy observations of significance regarding the lackadaisical manner in which the concerned authorities have acted in this matter. It would not be out of place to quote the order passed by the preceding Bench on 03.4.2019, which reads thus:
"1. This Criminal Revision is directed against the order dated 11th January, 2019 passed by the City Magistrate, Gorakhpur, directing for removal of the boundary wall of the present applicant to the North of the graveyard on account of it being a public passage.
2. The grievance raised in the revision petition is that the revenue records were not examined by the City Magistrate and in exercise of the power which is quasi-judicial in nature. The City Magistrate, therefore, overlooking the records directed for removal of constructions, as if the constructions had resulted in public nuisance causing blockade of a public passage.
3. This Court while entertaining the revision petition, passed a detailed order on 15th February, 2019 directing the District Magistrate/ Collector, Gorakhpur to get the immediate measurement of the spot so as to ascertain whether the land in question is really a public passage or is a part of the land held by the applicant by virtue of sale deed. It was also directed that the revenue official of the concerned Tehsil shall be asked to render help with reference to the relevant revenue records while preparing the report. This Court also stayed the effect and operation of the order dated 11th January, 2019 fixing 13th March, 2019.
4. On 13th March, 2019 Sri Himanshu Pandey, learned Advocate, had put in appearance on behalf of opposite party no. 2 by filing vakalatnama and the Additional Government Advocate was granted further time to submit the report fixing 3rd April, 2019.
5. Today an affidavit of compliance on behalf of the State-respondents, including the opposite party no. 3, has been filed annexing therewith a report of the District Magistrate, Gorakhpur dated 12th March, 2019 in which it has been stated that a team for inspection and preparation of report was constituted headed by Niab-Tehsildar, Sadar. The inspection team reported that as far as plot no. 243/29 area 0.295 hectare is concerned, the same belongs to the graveyard and in the revenue record there is no public passage shown to the east and north of the graveyard, however, there is a 16 feet wide passage in which bricks have been placed with the help of the villagers. The sketch map that has been appended to the report shows that the land in dispute is to the north and east of the graveyard which belongs to the applicant and is adjacent to the graveyard where land/ passage in dispute has been shown.
6. Learned counsel for the applicant has also drawn the attention of the Court to the order dated 30th December, 2011 passed by the then District Magistrate, Gorakhpur permitting construction of boundary wall to the south of the land of the present applicant and there is also order the Sub-divisional Officer dated 3rd July, 2013 in which the direction was issued to the in-charge Inspector, Police Station Cantt. to ensure that nobody could cause obstruction in the construction of the boundary wall of the present applicant.
7. In matter of public nuisance, while the administrative authorities adjudicate under Section 133 Code of Criminal Procedure, it calls for an absolute objective consideration of the allegations and appreciation of revenue records before the authorities come to conclude that a place is a public passage or a public place and that on account of some deliberate activity a public nuisance is caused. The authorities are hide bound in law to look into the records of such land over which public nuisance is complained of.
8. Prima facie, therefore, I find that in the present matter the third respondent has acted quite carelessly and mechanically with least application of mind, and as the records reflect.
9. However, this Court before proceeds to pass final order in the matter and since the position on the spot has been altered, in view of the order impugned here in this revision petition, the counsel for the other side is afforded one last opportunity to file his counter affidavit within ten days from today.
10. Let the matter be placed on board for final disposal on 17th of April, 2019 in the meanwhile after receiving the counter affidavit, the applicant may file rejoinder affidavit.
11. List on 17th April, 2019 showing the name of Sri Himanshu Pandey, as counsel for private respondent. "
In the aforesaid backdrop, this Court deems it proper to decide this revision finally.
Heard Shri Vimlendu Tripathi, learned counsel for the revisionist, Shri Himanshu Pandey, learned counsel for opposite party no.2 and learned A.G.A. for the State.
The crux of factual dispute, as reflects from the record is that the revisionist claims himself to be the owner of land in question, which was purchased by him through registered sale deed dated 01.4.2010 regarding Arazi No.243/28/1/4 and 243/28/1/5 admeasuring 33.75 decimal (1367.56 Sq. Mtr.) and also through registered sale deed dated 07.10.2014 regarding Arazi No.243/28/1/2 and 243/28/1/3 admeasuring 217.5 Air situated in Village-Mahadev Jharkhandi, Tappa and Pargana-Haveli, Tehsil-Sadar, District-Gorakhpur. The revisionist further claims that in the year 2011 itself, he had moved an application before the District Magistrate, Gorakhpur regarding a dispute of measurement of land in question and the construction of boundary wall thereupon, in respect of which the Revenue Inspector conducted inspection of land in question and also conducted measurement of land and submitted the report which was in his favour, upon which the District Magistrate passed order dated 30.12.2011 and issued instructions to the Tehsildar, Sadar, Gorakhpur to maintain law and order and to ensure that in case the revisionist raises construction of boundary wall only on his own land, no interference be permitted by any third person. According to the revisionist, one another application dated 17.4.2013 was also moved by him for the similar controversy of measurement of land in question and on that occasion also, reports of revenue authorities dated 03.7.2013 and 28.6.2013 were forwarded in favour of revisionist on the basis of which necessary order was passed by the administrative authorities to give protection to the construction raised by the revisionist and to maintain law and order on the site. It was only thereafter that the revisionist had raised construction of boundary wall over his land in the year 2014 and also sold a few plots of the said land. According to the averments made in the affidavit accompanied with the memo of revision, further claim of revisionist is that his land is positioned adjacent to east and north side of one graveyard situated in Khasra No.243 having an area of 0.2950 hectare and the said graveyard is recorded as Clause 6-3/graveyard in the revenue record. The boundary wall constructed by the revisionist is situated on the south and west side of his land and the north side of the land is secured by the boundary wall of engineering college and the east side of his land is open. It has been also claimed by the revisionist that for the purpose of selling plots in his land, he developed a thirty feet Kharanja road on the east side of said graveyard in the horizontal direction (from east to west) up to the boundary of said graveyard. Further claim of revisionist is that few persons namely Sakoor, Abdul Sattar and Abdul Gaffar, being owner of some plot of land of main Gata No.243 and some adjacent land in other gata numbers of village Mahadev Jharkhandi, executed one registered agreement to sale dated 17.8.2016 in favour of one Santosh Sahi for the part of land admeasuring 0.405 decimal, which land is also situated adjacent to the graveyard but on the different side. These persons, according to the claim of revisionist, joined hands with each other and one complaint dated 19.7.2017 was moved before the administrative authorities on the date of Janta Darshan organized on 22.7.2017 and in the said complaint it was alleged that three sides of graveyard are surrounded by a public way and is being used by the villagers since long time for their movements and also for performing Janaza process and the present revisionist purchased land of said public way from a few land owners by using force, in respect of which proceedings are pending in the court and about 20 days before, the revisionist raised the boundary wall on his land by encroaching upon the said public way whereby the village residents are facing serious difficulties and are feeling aggrieved and in case no immediate action is taken, any untoward situation may arise. This application dated 19.7.2017 was treated as complaint u/s 133 of Cr.P.C. and Case No.201805310000230 of 2017 was registered and report was called from the local police, upon which two reports dated 03.8.2017 and 10.10.2017 along with handmade map of the land in question were submitted by the local police before the City Magistrate, Gorakhpur, who has been arrayed in his individual capacity as third respondent in this criminal revision. The erstwhile city Magistrate passed preliminary order dated 06.11.2017 u/s 133 of Cr.P.C. calling response of revisionist for removal of boundary wall or for showing cause as to why the order should not be confirmed. The revisionist submitted his objection dated 02.02.2018 denying existence of public way adjacent to the graveyard and explained that neither revenue record nor municipal record discloses any public passage on the land in question and also disclosed that the land in question was purchased by him through registered sale deeds and also stated that no encroachment has been done by him on any public passage and the entire story of complainant is concocted and false lacking all factual basis. The complainant, who has been arrayed as second respondent in this criminal revision, filed his replica dated 11.4.2018 against objection filed by the revisionist and also moved an application for spot inspection. Thereafter, third respondent got posting as City Magistrate, Gorakhpur and conducted spot inspection on 28.12.2018 in respect of which a hand written site map was prepared and the joint statement of few residents of the vicinity was recorded and was placed on record. Thereafter the third respondents passed final order dated 11.01.2019 u/s 133 of Cr.P.C., against which the present criminal revision has been preferred.
Submission of counsel for the revisionist is that the claim of public way or chak road or chak nali is not supported with any government record or revenue record or municipal record and is merely based upon the statement of few persons, who are adversely interested and inimical for vested reasons. Further submission is that the land in question is not a public place or public passage or public way or chak road or chak Nali and in fact it is the private land of the revisionist, upon which the boundary wall in question was constructed in the year 2004 with the strength of orders passed by the District Magistrate and his subordinates after due measurement of land of the revisionist. It has been further submitted that initial complaint dated 19.7.2017 as well as joint statement allegedly recorded during the proceedings u/s 133 of Cr.P.C. has been signed by Sakoor and Abdul Gaffar, who executed agreement to sale in favour of Santosh Sahi and they all are in fact instrumental for issuance of impugned order dated 11.01.2019. Further submission is that there is no justification and reason to hold that the land in question is public way and to hold that there is any encroachment over any public way. Submission is that the third respondent being City Magistrate passed the impugned order in complete ignorance of factual aspects of the case as well as settled position of law in this regard and actually the impugned order is an outcome of bias and prejudice of third respondent, who seemed inclined to favouring the above named Santosh Sahi. Counsel for the revisionist further submits that the unfair bias of opposite party no.3 is apparent on the face of record in view of the subsequent act of demolition of boundary wall at his instance, despite having knowledge of the interim stay order dated 15.02.2019 passed by this Court, which act amounts to deliberate defiance of the order passed by this Court and even attracts the provisions of Contempt of Court Act. In this respect, reliance has been placed on supplementary affidavit dated 22.02.2019 filed by revisionist.
On the other hand, learned A.G.A. supports the order dated 11.01.2019 by submitting that the same is based upon two reports of local police and the inspection of third respondent himself and hence no interference is required.
Supporting the submission of learned A.G.A., learned counsel for second respondent i.e. the complainant, has attempted to make a halfhearted faint submission that the public passage was existing at the place since long and was being used by the villagers and due to efflux of time, the land in question being used as public passage cannot be encroached by the revisionist, as his title is disputed and as such, the order dated 11.01.2019 is justified.
The law in respect of proceeding u/s 133 of Cr.P.C. is well settled inasmuch as such proceeding is summary in nature and the factual dispute about existence of public passage is required to be adjudicated upon in the light of denial of opposite party about existence of public passage and in case there is some substance or there is any reliable evidence in support of such denial, the Magistrate shall stay the proceedings until the matter of existence of such right is decided by a competent court and if he finds that there is no such evidence, he shall proceed as provided u/s 138 of Cr.P.C. In this regard, relevant provisions of law are being reproduced herein below :
"CHAPTER X - MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY B--Public nuisances
133. Conditional order for removal of nuisance -
(1) Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers--
(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or
(b) ..........................................................; or,
(c) ..........................................................; or,
(d) ..........................................................; or,
(e) ..........................................................; or,
(f) .........................................................., Such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or ....................., within a time to be fixed in the order--
(i) to remove such obstruction or nuisance; or
(ii) ...............................................................; or
(iii) ...............................................................; or
(iv) ...............................................................; or
(v) ...............................................................; or
(vi) ..............................................................., or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.
(2) No order duly made by a Magistrate under this section shall be called in question in any civil Court.
Explanation--A "public place" includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes.
134. .................................
135. .................................
136. .................................
137. Procedure where existence of public right is denied -
(1) Where an order is made under section 113 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.
(3) A person who has, on being questioned by the Magistrate under sub-section (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial.
138. Procedure where he appears to show cause (1) If the person against whom an order under section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons-case.
(2) If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be, with such modification.
(3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case.
139. Power of Magistrate to direct local investigation and examination of an expert The Magistrate may, for the purposes of an inquiry under section 137 or section 138--
(a) direct a local investigation to be made by such person as he thinks fit; or
(b) summon and examine an expert
140. Power of Magistrate to furnish written instructions, etc (1) Where the Magistrate directs a local investigation by any person under section 139, the Magistrate may--
(a) furnish such person with such written instruction as may seem necessary for his guidance;
(b) declare by whom the whole or any part of the necessary expenses of the local investigation shall be paid (2) The report of such person may be read as evidence in the case (3) Where the Magistrate summons and examines an expert under section 139, the Magistrate may direct by whom the costs of such summoning and examination shall be paid
141. Procedure on order being made absolute and consequences of disobedience (1) When an order has been made absolute under section 136 or section 138, the Magistrate shall give notice of the same to the person against whom the order was made, and shall further require him to perform the act directed by the order within a time to be fixed in the notice, and inform him that, in case of disobedience, he will be liable to the penalty provided by section 188 of the Indian Penal Code (45 of 1860) (2) If such act is not performed within the time fixed, the Magistrate may cause it to be performed, and may recover the costs of performing it, either by the sale of any building, goods or other property removed by his order, or by the distress and sale of any other movable property of such person within or without such Magistrate's local jurisdiction and if such other property is without such jurisdiction, the order shall authorise its attachment and sale when endorsed by the Magistrate within whose local jurisdiction the property to be attached is found.
(3) No suit shall lie in respect of anything done in good faith under this section.
142. ....................................
143. ....................................."
The scope of above quoted provisions has been discussed by this Court on many occasions. In the case of Raghubar Dutt vs. Suresh Chandra and others, 1987 ACR 566, this Court has discussed the scope of Section-137 of Cr.P.C. and observed as follows :
"5. A bare reading of Section 137 would indicate that the provisions therein are to prevent the Magistrate from arrogating himself the power of civil court. Further the Magistrate need not hold an elaborate enquiry regarding the rights of the parties. The ambit of the enquiry is to find out if there is some prima facie reliable evidence in support of the denial of public right. The Magistrate is not called upon to weigh the evidence in order to determine the rights and title or truth of the denial. But he has just to be satisfied as to whether there is some evidence which could indicate prima facie that it was possible for a competent court to place reliance upon the same. It does not obviously mean that evidence of such a character would definitely establish title of the land. Otherwise in that case the legislature would not have used the words 'just reliable evidence',, rather the words used would have been that the Magistrate would decide on the basis of evidence being led as to whether the person against whom the said order has been passed, has a right in the land to create unlawful obstruction in the public way. The language of Section 137(2) of the Code is couched in such a way that the reliable evidence would depend upon the circumstances of each case. To put it differently, it only connotes where the evidence was such that if unrebutted, it would prove the non-existence of public right as alleged by the person against whom conditional order was passed See Lala Bissoomal v. State, 1957 AWR 551, T. N. Sudhakaran v. Dr. L. M. George, 1977 Cri.LJ 542 and Jaswant Singh v. Jagir Singh, MANU/PH/0080/1972 : 1972 CriLJ 792. Further the legislature did not use the word 'evidence' which definitely establishes the right to claim. In other words, reliable evidence can be taken to be a form of evidence which is not the basis of unreliable or forged evidence. The duty of a Magistrate is merely to see whether the evidence in support of denial of public right is reliable.
6. In the instant case it is better to refer to the evidence led by the opposite parties to prove the denial of public way or the unlawful obstruction created. It was alleged by the opposite parties that plot No. 394 did not contain public way and there was no such entry like public way in plot No. 394 in revenue papers. Similarly in Khatauni for 1387 to 1392F an area of 8 biswa of plot No. 394 was entered as Goth and there was no mention about any public way or Rasta. Similarly extract of Khasra for the years 1374 to 1379 F also mentions the area of 8 biswa of plot No. 3 94A as Goth. There was no mention of any public way or Rasta. It was for the applicant to move an application Under Section 133 to explain as to how this entry of Goth was converted into Rasta. This was the question pertaining to right and title. The aforesaid extracts of Khasra and Khatauni were certainly reliable evidence within the meaning of Section 137(2) of the Code. On the basis of such evidence the Magistrate ought to have stayed the proceedings until the matter of existence of such right of public way was decided by a competent court. The Sessions Judge has correctly allowed the revision by the impugned order."
In Wali Uddin and others vs. State of U.P. and others, 1988 (12) ACR 1, this Court has elaborated the language of Section-137(1) of Cr.P.C. and concluded in following terms :
"23. It is also to be noticed that under Section 137(1) the Legislature has used the word "that after the denial of such right by opposite party the Magistrate shall inquire into the matter" and not that the Magistrate shall adjudicate upon or decide the matter or controversy between the parties. The word 'inquire', means eager, to acquire information. The word 'inquire', according to Shorter Oxford English Dictionary means to search into, to seek knowledge, to make inquisition, to make investigation, to seek information by questioning, to seek or to try to find out. The word reliable evidence having been used and the Magistrate having been directed to inquire into the matter and not to decide or adjudicate upon, it is clear that the person denying the public right has to put forward a just and bonafide claim. In case the Magistrate finds that there is some reliable evidence and certainly not a conclusive evidence in support of the denial of any public right to get the matter decided by a competent Court. I am however, of the view that the Section does not make it clear as to who is the person as to whether first party or the second party, who has to approach the Civil Court. One thing more may be clarified that in case the Magistrate finds that there is no such reliable evidence in that event he shall proceed in view of the provisions of Section 138 of the Code. In the instant case what has been done is entirely different. Even though the Magistrate confirmed the conditional order but the revision has been disposed of by the learned Additional Sessions Judge in total disregard of the provisions of Section 133 read with Section 137 of the Code. The learned Sessions Judge was exercising the same jurisdiction as was to be exercised by the learned Magistrate. He must have also proceeded to decide the case just with a view to make an enquiry as to whether there was some reliable evidence led by the opposite party No. 2 who denied the existence of such right and in case he found that there was reliable evidence his jurisdiction ceases and it was for the civil Court to decide the same. "
The Calcutta High Court in the case of Md. Basar Ali Molla and others vs. State of West Bengal and others, MANU/WB/0583/2006 has considered the aspect of emergency attached with the dispute regarding public nuisance and has held that it does not apply to private nuisance and private dispute and it is never intended to settle a private dispute. The relevant paragraphs of Md. Basar Ali Molla's case (supra) are being reproduced herein below :
"7. Section 133 Cr. PC relates to passing of order for removal of public nuisance in case of emergency. It does not apply to private nuisance and private dispute and it is never intended to settle a private dispute.
8. It has been laid down in the case reported in MANU/MP/0136/1958 : AIR1958MP350 that Chapter X of the Code of Criminal Procedure deals with "Public Nuisances" and not with private nuisances. The remedy for the latter is the civil suit although what constitutes nuisance may be common to both classes. Section 133 Cr. PC provides a speedy and summary remedy in case of urgency where danger to public interest or public health is concerned. In all other cases the party should be referred to the remedy under the ordinary law.
9. Reference may also be made in the case reported in MANU/KE/0077/1964 : AIR1964Ker252 where it has been held that Section 133 Cr. PC can be used only where there has been an invasion of public rights. The case reported in MANU/BH/0076/1958 : AIR1958Pat210 is also relevant in this case' where it has been held that Section 133 Cr. PC cannot be used as a short cut to achieve what one would like to achieve in a Civil Court. The whole object of Section 133 Cr. PC is that the public should not suffer and that such dangers or obstructions caused by the members of the public should be removed at the earliest possible moment.
10. In that case a decision of Allahabad High Court reported in MANU/UP/0008/1914 was referred. In that case it was held now it is certainly expedient that in all proceedings initiated under Section 133 of the Code of Criminal Procedure the Magistrate should bear in mind that he is supposed to be acting purely in the interests of the public and should be on his guard against tendency to use this section as substitute for litigation in the Civil Courts in order to the settlement of a private dispute.
11. In the case reported in MANU/UP/0013/1942 : AIR1943All19 it has been stated that the proceedings under Section 133 Cr. PC is not intended to settle private dispute between two members of the public.
12. Reference can also be made in the case reported in MANU/MH/0210/1991 where it has been held that Chapter XB of Criminal Procedure Code deals with "public nuisances" and provides a speedy and summary method for dealing with them, in cases of great emergency and where there is imminent danger to the public interest.
13. In the instant case there are no dependable materials to hold that the disputed pathway was being used by the public at large but it appears that the same was used by the students and teachers of Sisu Siksha Kendra from 2003 to last week of February, 2005 and the same was not being used from the last week of February, 2005 as existence from the said pathway was destroyed and the same merged with the fishery. So, it does not appear that the public at large is being affected and there was any obstruction of public way or public way has been destroyed and the same requires repair. So, no case of sufferance of public is made out and it does not appear that the Magistrate had to act purely in the interest of the public. There is no invasion of public right. If it assumed that obstruction is caused to the use of the pathway in question by the students, teachers and guardians of students of Sisu Siksha Kendra by the petitioners then it is an obstruction not to the public at large but to a handful of persons and remedy for said obstruction cannot be had by resorting to provision of Section 133 Cr.PC. If there is any nuisance the same is purely a private nuisance for which Civil Court may be approached for appropriate remedy according to law. There is room for contention that Section 133 Cr.PC also does not contemplate any order for repairing of road which has been abolished and also any order in connection with such repair.
14. In view of my above discussions I hold that both the impugned orders dated 17.1.2006 and 7.7.2006 cannot stand and the same are liable to be set aside. In the result, the instant applications succeed and the same are allowed. The impugned orders passed by the learned Executive Magistrate are hereby set aside. I make no order as to costs. "
The crux of above quoted statutory law and the precedents is that the authority under section 133 of Cr.P.C. can be exercised by the executive magistrate, when any unlawful obstruction or nuisance is alleged on any public place or on any way, which is or may be lawfully used by the public, as is the controversy in the present case. However, to ascertain the justification of such allegation, the executive magistrate is required to see as to whether the person against whom the show cause has been issued under Section 133(1) of Cr.P.C. has placed "any reliable evidence" in denial of such allegation or not. While doing so, the executive magistrate is not required to ask for any conclusive evidence and he has to consider the evidence brought on record by the person denying existence of unlawful obstruction or nuisance with an understanding as to whether such evidence can be said to be reliable enough. If that is so, the executive magistrate should not proceed further in the matter and should relegate the parties to the competent civil court for determination of their rights. Even otherwise, the entry in government record regarding the land or passage in question has a direct bearing upon the claim of existence of "any public place" or "any way, which is or may be lawfully used by the public". When the person denying existence of unlawful obstruction or nuisance comes with an explanation that the land or passage in question is actually the land purchased by him through registered sale-deed and such land is not entered in the revenue or municipal record as "public place or public way or government/ municipal land", the executive magistrate should not casually brush aside such counter claim or explanation without giving any convincing reason in that regard and proceed only on the basis of some unsubstantiated statements of a few persons.
The proceedings under section 133 of Cr.P.C. are summary in nature and are meant for the cases of imminent danger to the public tranquility and peace and the same should not be used or rather misused to scuttle the valuable right of owner of property and that is why, the legislature has in its wisdom used the words "any reliable evidence" in support of such denial, in the event and in case of which he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Court as provided under Section 137(2) of Cr.P.C., which is certainly having a different import and connotation than the word 'conclusive evidence'. This language used by the legislature has a limiting influence and works as a guideline while exercising authority under section 133 of Cr.P.C.
In the light of rival submissions made at the bar, this Court has had the occasion to peruse the entire record of the case, according to which neither the complaint dated 19.7.2017 nor two reports of local police dated 03.8.2017 and 10.10.2017 nor the inspection report of third respondent dated 28.12.2018 discloses any such details of revenue record which may go to demonstrate that the land in dispute was or is entered into any government record as public passage. The perusal of compliance report dated 12th March, 2019 sent on behalf of District Magistrate, Gorakhpur also clearly mentions that the passage shown in the map does not find place in the revenue record, though it has been sought to be shown in the report that at present, one 16 feet wife Kharanja is existing on the side which has been constructed by the village residents collecting common fund. It would be useful to quote the relevant part of inspection report dated 08.3.2019 :
"नायब तहसीलदार, पिपराइच द्वारा जांचोपरांत अपनी जांच आख्या दिनांक27.2.2019 (पताका- ग) प्रस्तुत करते हुए उल्लिखित किया गया है कि आ०नं०243/29 रकबा 0.295 हे० कब्रिस्तान के पूरब उत्तर नजरी नक्शे में प्रदर्शित रास्ते का अंकन राजस्व अभिलेख में नहीं है। मौके पर वर्तमान में 16 फीट की चौड़ाई में रास्ता कायम है जिस पर खड़ंजा लगा है। उक्त रास्ता ग्राम निवासियों द्वारा चन्दा लगाकर बनवाया गया है (रास्ते का फोटोग्राफ तथा ग्रामवासियों का चन्दे से रास्ता बनवाए जाने का बयान संलग्न)"
The said inspection report dated 08.3.2019 is the enclosure of the report of District Magistrate dated 12.3.2019, which is based thereupon. Both the said reports dated 8.3.2019 and 12.3.2019 mention several other aspects of the land in question regarding its sale and purchase as well as regarding deficiency of stamp, which aspects are absolutely irrelevant for the purpose of adjudication of the case.
In the light of aforesaid factual aspects of the matter, this court has proceeded to consider the legality and veracity of impugned order dated 11.01.2019. The perusal of impugned order reveals observation of the third respondent to the effect that denial of revisionist regarding public passage is not reliable and that is why the removal of encroachment on public passage is justified. The third respondent has also observed that the inspection of site was conducted by him, during which statements of certain persons who were present on the spot were recorded, which disclosed that there was a chak road and chak Nali on the north and east side which has been demolished by the revisionist and road has been constructed. It has also been observed that the said chak road was going towards village via kabristan and the said passage having width about 16 feet near the kabristan has been squeezed by the revisionist and because of wall raised on the public passage, only 8 feet passage is available on the spot and the passage has been encroached. With such observations, the third respondent i.e. the City Magistrate, Gorakhpur has passed order u/s 133 (1) of Cr.P.C., whereby the revisionist has been asked to remove his wall on the passage within a week, so that the passage being used by the villagers may not have any hindrance. There is a recital in the said order about communication thereof to the local police station Cantt. for appropriate action and after due action the file has been ordered to be consigned to record.
The above noted observations and findings of third respondent do not disclose any detail about entry of public passage in government record and also do not disclose as to why the denial of the revisionist about existence of public passage was not found reliable.
On the anvil of above discussed statutory provisions as well as position of case law in that regard, it is undoubtedly clear that the impugned order is not only cryptic but is also bereft of any good reasoning which may justify the exercise of authority vested under Section-133 of Cr.P.C. Considering the facts of the case, in fact the revisionist appears to have placed sufficiently reliable evidence in the form of details of purchase of land in support of denial of public right in the face of which there appears no occasion for the third respondent to have passed the final order u/s 133 of Cr.P.C. for removal of boundary wall of the revisionist from the land in question. There is one another aspect of the matter that the inspection reports dated 8.3.2019 and 12.3.2019 submitted before this Court on behalf of the District Magistrate, Gorakhpur reveal that at present a 16 feet wide passage is existing having Kharanja thereupon, which has been constructed by the village residents through the collection of money. The procedure prescribed u/s 141 of Cr.P.C. in the case where the order u/s 136 of Cr.P.C. is made absolute, is that the removal of unlawful obstruction or nuisance is done by the person against whom the order is made and in this respect, the Magistrate has to give notice to such person requiring him to perform the act within a time frame fixed in the notice and in the event of disobedience such person against whom the order is made, is held liable to the penalty provided u/s 188 of the Indian Penal Code and in the case of disobedience the Magistrate may also cause such act to be performed and may also recover the cost of performing it from the properties of such person. In the present matter, this procedure has not been adopted for the reason not known to this Court and only best known to the third respondent. To observe the least, the manner in which the impugned order has been passed by third respondent reflects much about an unjustified and unmindful performance of statutory obligations bestowed upon him and the state of affairs leave much to be desired.
So far as the submission made on behalf of revisionist regarding demolition of boundary wall even after attaining knowledge of interim order passed by this Court on 15.02.2019 is concerned, this Court finds that the revisionist has already invoked contempt jurisdiction of this Court in a separate proceeding and as such this Court abstains itself from making any observation, lest it may cause prejudice to the rights of the parties to the contempt proceeding, which is subjudice according to submission made by the counsel for the revisionist.
Resultantly the revision succeeds and is allowed and the impugned order dated 11.01.2019 passed by the City Magistrate, Gorakhpur is hereby set aside.
Order Date : 10.7.2019 M. Kumar