Delhi District Court
Ravinder Sharma vs (1) Rupender Singh Walia on 28 August, 2023
IN THE COURT OF SHRI SUNIL GUPTA,
ADDITIONAL SESSIONS JUDGE-6, SOUTH DISTRICT, SAKET
COURTS, NEW DELHI
REVISION PETITION NO. 248/2021
IN THE MATTER OF:
Ravinder Sharma
S/o Sh. Prakash Chand Sharma,
R/o H.No. 42, Jonapur Village,
New Delhi
.............. Revisionist
Versus
(1) Rupender Singh Walia
S/o Sh. Jatinder Singh
(2) Rohit Virmani
S/o Sh Krishan Mohan Virmani
(3) Mayank Gupta
(4) Madhusudan
All residents of 9, Gadaipur Farms, Delhi
............... Respondents
Instituted on : 21.12.2021
Reserved on : 16.08.2023
Pronounced on : 28.08.2023
Crl Rev. No. 248/2021 Ravinder Sharma Vs. Rupender Singh Walia And Anr. Page No. 1 / 9
Digitally
signed by
SUNIL
SUNIL GUPTA
GUPTA Date:
2023.08.28
17:43:53
+0530
JUDGMENT
1. Vide this judgment, I shall dispose of the revision petition U/s 397 Cr.P.C preferred by Mr. Ravinder Sharma against the order dated 16.12.2021 passed by Ld. RA/SDM, Mehrauli in case no. 462/V&P/SDM(M)/2019 U/s 145 Cr.P.C. titled as Rupender & Ors. Vs. Ravinder Sharma, whereby after dropping the proceedings u/s 145 Cr.P.C., the respondents were allowed to repair/reconstruct the damaged wall and to install the CCTV camera.
2. Briefly stated the facts as per record are as under:
A kalandra u/s 145 Cr.P.C. vide DD No.49 dated 06.12.2019, PS Fatehpur Beri was received RA/SDM, Mehrauli. As per the same, there was a dispute over possession of land situated near (inside) main gate of 9, Gadaipur Farms, Delhi between the respondents and the revisionist herein. On apprehending breach of piece of the area, kalandra was prepared and sent to RA/SDM, Mehrauli who vide order dated 26.08.2020 directed to stop any construction activity at the above land and direct both the parties to maintain status quo on the said land till further orders. On the same date, noticed was sent to the revisionist to appear in person or through pleader on 16.09.2020 at 03:00 pm. In the meanwhile, it came on record vide GD No.34A and 57A dated 28.08.2020 PS Fatehpur Beri that the revisionist had sent some labourers to install a gate on the disputed land and they were demolishing a wall for this purpose. A detailed report dated 31.08.2020 regarding violation of order dated 26.08.2020 of SDM, Mehrauli regarding status quo was sent to SDM, Mehrauli. After considering the submissions from both the sides alongwith record, the Crl Rev. No. 248/2021 Ravinder Sharma Vs. Rupender Singh Walia And Anr. Page No. 2 / 9 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.08.28 17:44:01 +0530 proceedings u/s 145 Cr.P.C. were dropped by Ld. SDM concerned vide order dated 16.12.2021. By way of same order, an application moved on behalf of respondents praying for permission to rebuild the broken wall, to install CCTV cameras and other reliefs was allowed by Ld. SDM. That order is being challenged in these proceedings.
3. Arguments heard.
4. It has been argued by Ld. Counsel for revisionist that Ld. SDM has fell in error in passing the directions in the closing paragraphs of the impugned order. It has been submitted that once Ld. SDM was of the opinion that the matter did not involve any further breach of public peace and tranquility and dropped the proceedings u/s 145 Cr.P.C., he had become functus officio and no directions could have been passed thereafter. Ld. Counsel has gone through the contents of Section 145 Cr.P.C. and has submitted that the role of SDM under that provision was limited and the directions passed by way of impugned order are not in any way covered by said provision. It has been submitted that Ld. SDM exceeded his power in issuing directions in question. Prayer has been made for setting-aside the order. Reliance has been placed on following judgments:-
(i) Ranbir Singh Vs. Dalbir Singh; 2002(3) SCC 700
(ii) Maya Devi Vs. Bhagat Singh; 1982 (22) DLT 443
(iii) Roop Lal Bhalla Vs. State & Anr; 2003 (70) DRJ 194
(iv) Jagdish Gandhi Vs. State; 2008 (153) DLT 64
(v) Syed Nusrat Ali Vs. State; 2010 (4) JCC 2574
(vi) Mela Ram Vs. Sadhu Ram & Ors, 803/1980 Cr.Rev.No.805/1980 (Allahabad High Court) Crl Rev. No. 248/2021 Ravinder Sharma Vs. Rupender Singh Walia And Anr. Page No. 3 / 9 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.08.28 17:44:09 +0530
5. Per contra, it has been submitted by Ld. Counsel for respondents that there is no illegality in the impugned order. It was submitted that the directions as contained in the impugned order dated 16.12.2021 have been carried out before present revision petition could have been taken up for hearing by Ld. ASJ on 22.12.2021, so the petition has become infructuous. On merits, it has been submitted that Ld. SDM was well within his power to pass the directions in question as it was the revisionist who had got demolished/damaged said wall on 28.08.2020 after status quo order was passed on 26.08.2020. It has been submitted that those directions were within the implied/ inherent powers of the Ld. SDM. He has prayed for dismissal of revision petition. He has relied upon following judgments:-
(i) J.M. Biswas Vs. N.K. Bhattacharjee, (2002) 4 SCC 68.
(ii) Shipping Corpn. of India Ltd. Vs. Machado Bros., (2004) 11 SCC 168.
(iii) Kailash Dattatraya Jadhav & Anr. Vs. State of Maharashtra & Anr. 2016 SCC Online BOM 5030.
(iv) Khundongba Amuba Singh Vs. State of Manipur, 2016 SCC Online Mani 50.
(v) Kaniz Fatima Bibi Vs. State of Uttar Pradesh, 1962 SCC Online All 107.
6. I have considered the submissions from both the sides alongwith record and the judgments cited.
7. At first, this court will decide the maintainability of present revision petition against the impugned order. As per section 397(2) Cr.P.C., the Crl Rev. No. 248/2021 Ravinder Sharma Vs. Rupender Singh Walia And Anr. Page No. 4 / 9 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.08.28 17:44:17 +0530 power of revision shall not be exercised in relation to any interlocutory order. Hon'ble Supreme Court in case titled as Amar Nath vs. State of Haryana, AIR 1977 SC 2185 has observed that the interlocutory order means orders of purely interim or temporary nature which do not decide or touch the important right or the liabilities of the parties and any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order and further observed that orders summoning witnesses, adjourning cases, passing orders for bail, calling for a report and such other steps in aid of pending proceedings, may no doubt, amount to interlocutory orders, against which no revision would lie but orders which affect or adjudicate the rights of the accused or a particular aspect of the trial, cannot said to be interlocutory order. By applying the said yardstick, it is clear that the impugned order dated 16.12.2021 is not an interlocutory order. Merely because something has been done in pursuance to directions as contained in that order, does not mean that the revision petition is not maintainable in law. The judgments relied upon by respondents are distinguishable on facts.
8. The limited question involved in the present petition is as to whether Ld. SDM, Mehrauli was justified in law in passing directions thereby allowing the respondents to repair/reconstruct the damaged wall alongwith supporting structures and also in allowing installation of CCTV camera after dropping the proceedings u/s 145 Cr.P.C. As per the revisionist, such directions were beyond the power of Ld. SDM whereas the respondents have stated that passing of those directions was well within his power.
Crl Rev. No. 248/2021 Ravinder Sharma Vs. Rupender Singh Walia And Anr. Page No. 5 / 9
Digitally
signed by
SUNIL
SUNIL GUPTA
GUPTA Date:
2023.08.28
17:44:25
+0530
9. Relevant portion of the impugned order is reproduced below for ready reference:-
"As dispute was civil in nature and the parties have their equal efficacious remedies under civil court and hence the matter does not involve any further public peace and tranquility therefore the proceedings under section 145 are dropped.
The complainant is having every apprehension that if the broken wall of his farm is not reconstructed the complainant will suffer huge loss interms of personal safety as it is next to impossible to protect the property from the encroachers/ bad elements. As the complainant prayed in various applications regarding permission be granted to repair/reconstruct the wall damaged by Ravi Sharma and to install CCTV.
The case may be close be with direction to both the parties to maintain peace & tranquility also. The complainant may be allowed to repair/reconstruct the damaged wall and any supporting structure for safety of his personal property. The complainant is also allowed for installing CCTV camera.
Further, SHO is directed to ensure peacefully physical possession of the lawful owners Sh. Rupender Singh Walia, Sh. Rohit Virmani, Sh. Mayank Gupta & Sh. Madhusudan and to restrain any person from disturbing the peaceful possession of the lawful owners. The SHO is directed to ensure that no change in approach road shall be made by any party involved".
10. Section 145 Cr.P.C. provides as under:-
"145. Procedure where dispute concerning land or water is likely to cause breach of peace.-(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
(2) For the purposes of this section, the expression" land or water"
includes buildings, markets, fisheries, crops or other produce of land, and Crl Rev. No. 248/2021 Ravinder Sharma Vs. Rupender Singh Walia And Anr. Page No. 6 / 9 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.08.28 17:44:35 +0530 the rents or profits of any such property.
(3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.
(4) The Magistrate shall then, without, reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub- section (1), in possession of the subject of dispute:
Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub- section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub- section (1).
(5) Nothing in this section' shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under subsection (1) shall be final.
(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub- section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub- section (4), may restore to possession the party forcibly and wrongfully dispossessed.
(b) The order made under this sub- section shall be served and published in the manner laid down in sub- section (3).Crl Rev. No. 248/2021 Ravinder Sharma Vs. Rupender Singh Walia And Anr. Page No. 7 / 9
Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.08.28 17:44:46 +0530 (7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of. such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale- proceeds thereof, as he thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.
(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107."
11. Record shows that the wall in question which has been ordered to be rebuilt by way of impugned order and has been actually so built in pursuance to the same, was demolished/damaged at the instance of revisionist herein on 28.08.2020 regarding which a call was made to police at 100 number which was recorded vide GD No.34A dated 28.08.2020, PS Fatehpur Beri. When SI Laxman Singh alongwith other police officials reached at the spot for attending the call, one Mr. Pradeep and Mr. Maniram, labourers allegedly sent by the revisionist were found there. They told the police officials that they were demolishing the wall as they had been sent there to install a gate. They were detained u/s 65 DP Act and were released later on after inquiry. It is not the case of revisionist that no such wall existed there earlier or that same was not demolished at his Crl Rev. No. 248/2021 Ravinder Sharma Vs. Rupender Singh Walia And Anr. Page No. 8 / 9 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.08.28 17:44:53 +0530 instance. The revisionist has chosen to remain blissfully silent on this material aspect, however he is objecting to the order which permitted the respondents to repair/reconstruct that wall alongwith supporting structure. In a way, he is trying to reap the benefits of his own wrong which is not permissible in law. By way of impugned order, Ld. SDM has merely passed necessary directions to restore status quo ante as admittedly the wall in question was demolished after passing of order of status quo on 26.08.2020. Such an order can be termed as an "incidental order" which was well within the power of Ld. SDM as held by Hon'ble Allahabad High Court in Smt. Kaniz Fatima Bibi Vs. State of U.P. and Ors. AIR 1963 All 148. Holding otherwise will be travesty of justice. It is good fortune of the revisionist that no action was taken against him for violating the status quo order dated 26.08.2020. Having said that, this Court is of the view that the direction to allow installation of CCTV camera was not justified as it appears that no such camera was installed there before. The judgments relied upon by revisionist are distinguishable on facts.
12. Considering the above discussion, this Court is of the view that there is no illegality in the impugned order dated 16.12.2021 as far as same permitted repair/re-construction of damaged wall and supporting structure, however the direction to allow installation of CCTV camera was not within the power of Ld. SDM. Digitally signed by Revision petition stands disposed of in above terms. SUNIL SUNIL GUPTA GUPTA Date:
2023.08.28 17:45:01 +0530 Announced in the open (Sunil Gupta) Court on 28.08.2023 Additional Sessions Judge-06, South, Saket Courts, New Delhi Crl Rev. No. 248/2021 Ravinder Sharma Vs. Rupender Singh Walia And Anr. Page No. 9 / 9