Himachal Pradesh High Court
Sh.Vishwa Nath Machhan S/O Late Sh. ... vs State Of H.P. Through Secretary (Home) & ... on 24 October, 2016
Author: P. S. Rana
Bench: P. S. Rana
HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Crl. Revision Petition No. 100/2016
Order Reserved on 05.09.2016
Date of order: 24.10.2016
.
Sh.Vishwa Nath Machhan s/o late Sh. Raghubir Dass ....Revisionist
Versus
State of H.P. through Secretary (Home) & Others ....Non-revisionists
of
Coram:
The Hon'ble Mr. Justice P. S. Rana, Judge.
Whether approved for reporting?1 Yes
rt
For revisionist : In person
For non-revisionist No.1 : Mr. R. K. Sharma, Dy. A. G.
For non-revisionists No.2 : Mr. G.D. Verma, Sr.Advocate with
to 4 & 6 Mr. B. C. Verma, Advocate
For non-revisionist No.7 : Mr. Balwant Kukreja, Advocate
P. S. Rana, J.
Order:
Present criminal revision petition is filed under Section 397/401 Code of Criminal Procedure 1973 against order dated 12.01.2012 passed by learned Special Judge (F) Shimla (H.P.) whereby learned Special Judge (F) Shimla accepted the closure report and rejected the protest petition filed by revisionist Vishwa Nath Machhan.1
Whether the reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 21:26:00 :::HCHP 2 Brief facts of the case:
2. Sh.Vishwa Nath Machhan filed criminal complaint on dated 26.8.2002 before Superintendent of Police Shimla for registration of criminal .
case against Swami Lal @ Balmani (Priest) Kandloo temple Sector 4 New Shimla for indiscriminate use of loud speakers/amplifiers in the temple premises causing complete voice nuisance to the residents of locality from 6 AM to 9 AM and from 6 PM to 9 PM. It is alleged that temple is situated on of the government land comprised in Khasra No.203 contiguous to plots No.465 to 471 of H.P. Housing Board Sector 4. It is alleged that temple, residential quarters, huts and shops raised upon government land upon khasra No.203 rt in collusion and connivance with forest officials. It is further alleged that on 06.04.2002 priest of the temple and fifteen local persons in active collusion with Sh. Manoj Kumar Deputy Director Tourism Kasumpti Shimla obtained grant of Rs.2,50,000/- (Two lac fifty thousand) for the temple. It is further alleged that temple is raised in illegal manner upon khasra No.203 owned by State Government. Prayer for registration of FIR under H. P. Instruments of Control of Noises Act, Forest Conservation Act, Indian Forest Act, H.P. Prevention of Specific Corrupt Practices Act and under sections 420, 465, 467,468, 506 and 120-B IPC and under section 13(2) of Prevention of Corruption Act sought. After registration of FIR investigation was conducted and thereafter cancellation report was submitted. After submission of cancellation report revisionist filed protest petition. Upon protest petition order of further investigation passed by learned Judicial Magistrate Ist Class Court No.1 Shimla. Thereafter further investigation was conducted by Addl.
::: Downloaded on - 15/04/2017 21:26:00 :::HCHP 3S.P. Shimla and Addl. S.P. Shimla after investigation again submitted cancellation report and thereafter learned Special Judge (F) Shimla again ordered for further investigation. Thereafter again cancellation report .
submitted and after hearing the protest petition filed by revisionist learned Special Judge (F) Shimla accepted the cancellation report. Feeling aggrieved against the cancellation report present revision petition is filed.
3. Court heard revisionist in person and learned Deputy Advocate of General appearing on behalf of revisionist No.1 and learned Advocate(s) appearing on behalf of revisionists No.2 to 4, 6 & 7 and Court also perused the entire record carefully.
4. rt Following points arise for determination:
1) Whether criminal revision petition filed by revisionist under Section 397/401 Code of Criminal Procedure 1973 is liable to be accepted as mentioned in memorandum of grounds of revision petition?
2) Final Order.
Findings upon Point No.1 with reasons:
5. Submission of revisionist that learned Special Judge (F) Shimla has caused grave miscarriage of justice to revisionist by way of accepting cancellation report filed by investigating agency is rejected being devoid of any force for reasons hereinafter mentioned. It is proved on record that further investigation was conducted in the present case twice. It is also proved on record that all the investigating officials have submitted cancellation report after proper investigation of the case. It is also proved on ::: Downloaded on - 15/04/2017 21:26:00 :::HCHP 4 record that temple is constructed upon khasra No.203 owned by H.P. Government. Court has carefully perused the jamabandi for the year 1989- 1990 relating to khasra No.203 placed on record prepared by revenue official .
while discharging official duty under H.P. Land Revenue Act 1954. In ownership column of khasra No.203 name of H.P. Government recorded and in possession column name of H.P. Government and inhabitants of the area recorded. Nature of khasra number recorded as 'Charagah' (Grazing land).
of Name of revisionist did not figure in ownership column of khasra No.203 upon which temple is constructed for welfare of general public.
6. Submission of revisionist that revisionist also filed CWP(PIL) rt No.24/2003 title Vishwanath Machhan Vs. Director General of Police Himachal Pradesh & Others and Hon'ble High Court of H.P. in civil writ petition directed to control noise pollution and on this ground revision petition be allowed is rejected being devoid of any force for reasons hereinafter mentioned. It is held that revisionist has alternative efficacious remedy to file execution petition for implementation of order of Hon'ble High Court of H.P. passed in CWP(PIL) No.24/2003 title Vishwanath Machhan Vs. Director General of Police Himachal Pradesh & Others in order to control noise pollution in accordance with law.
7. Submission of revisionist that accused persons have encroached khasra No.203 in illegal manner and on this ground revision petition be allowed is rejected being devoid of any force for reasons hereinafter mentioned. Order of Collector-cum-DFO Shimla dated 9.9.2005 placed on record. Learned Collector-cum-DFO Shimla has specifically mentioned in ::: Downloaded on - 15/04/2017 21:26:00 :::HCHP 5 order dated 9.9.2005 that encroachment proceedings are pending before Assistant Collector Grade-I Settlement Shimla. In view of the fact that case of encroachment is pending before Assistant Collector Grade-I Settlement .
Shimla relating to encroachment of khasra No.203 it is held that it is not expedient in the ends of justice to interfere in the order of learned Special Judge (F) Shimla in the present case on this ground.
8. Submission of revisionist that grant of Rupee two lac fifty thousand of was granted by the Tourism Department Shimla on 06.04.2002 in illegal manner for temple and illegal water and illegal electricity connection also granted for the temple in collusion with XEN Water Works MC Shimla and rt SDO Electricity Department Khalini which amounts to corrupt practice on behalf of public officials and on this ground revision petition be allowed is rejected being devoid of any force for reasons hereinafter mentioned. Rupee two lac fifty thousand was sanctioned for welfare of temple which is used by general public at large. Temple is not the property of individual person but temple is used for worship of God by general public. It is well settled law that when there is conflict between interest of general public and individual then interest of general public always prevails. As per cancellation report damage report against members of temple Managing Committee already prepared by officials of forest department. As per cancellation report Rs.2,50,000/- (Two lac fifty thousand) received by temple Managing Committee for temple and same was used for welfare of temple and not used for personal individual benefit. Even proceedings relating to illegal construction by local people over khasra No.203 are pending before ::: Downloaded on - 15/04/2017 21:26:00 :::HCHP 6 Commissioner Municipal Corporation Shimla (H.P.) as per cancellation report.
There is also recital in the cancellation report that letters have been issued to concerned public departments to take action against defaulting public .
officials for procedural irregularity. Temple is not constructed upon land of revisionist but constructed upon khasra No.203 owned by H.P. Government and H.P. Government did not file any revision petition against the order of learned Special Judge (F) Shimla. It is not expedient in the ends of justice to of interfere in the order of learned Special Judge (F) Shimla on this ground.
9. Submission of revisionist that by way of voice of loud speakers and amplifiers privacy of revisionist and his family members is disturbed and on rt this ground revision petition be allowed is rejected being devoid of any force for reasons hereinafter mentioned. Court is of the opinion that disturbance of privacy of revisionist is civil matter and revisionist can seek civil relief under Specific Relief Act 1963 in accordance with law from civil Court.
10. Submission of revisionist that dirty water of temple is diverted towards the land of revisionist and on this ground revision petition be allowed is rejected being devoid of any force for reasons hereinafter mentioned. It is held that revisionist is at liberty to seek remedy in civil Court as per Specific Relief Act 1963 relating to diversion of dirty water upon his plot. It is held that alternative efficacious civil remedy is available to revisionist in accordance with law in the present case for redressal of his grievances. It is not expedient in the ends of justice to interfere in the order of learned Special Judge (F) Shimla on this ground.
::: Downloaded on - 15/04/2017 21:26:00 :::HCHP 711. Revisional jurisdiction of the High Court should be exercised in the following cases: (1) Where decision or order is grossly erroneous (2) Where there is no compliance of provision of law (3) Where finding of fact is not .
based on evidence (4) Where judicial discretion is exercised arbitrarily or perversely. See AIR 1968 SC 707 title Mahendra Pratap Singh Vs. Sarju Singh. See AIR 1962 SC 1788 title Chinnaswamy Reddy Vs. State of Andhra Pradesh. See AIR 2008 SC 1165 title Johar Vs. Mangal Prasad.
of In view of above stated facts it is held that order of learned Special Judge (F) Shimla (H.P.) dated 12.01.2012 is not illegal nor perverse. Point No.1 is answered in negative.
rt Point No.2 (Final Order).
12. In view of findings upon point No.1 present criminal revision petition is dismissed. Order of learned Special Judge (F) Shimla (H.P.) dated 12.01.2012 is affirmed. Jamabandi for the year 1989-1990 relating to khata No. 149 min khatoni No. 173 min khasra No.203 Mohal Patebag Tehsil and Distt. Shimla (H.P.) placed on record prepared under H.P. Land Revenue Act 1954 by public official in discharge of official duty will form part and parcel of order. File of learned Special Judge (F) Shimla (H.P.) alongwith certified copy of the order be sent back forthwith. Crl. Revision No.100/2016 is disposed of. Pending applications if any also disposed of.
October 24, 2016 (P. S. Rana),
(rana) Judge.
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