HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 20.8.2015 Delivered on 16.10.2015 A.F.R. Court No. - 36 Case :- CRIMINAL MISC. WRIT PETITION No. - 35 of 2006 Petitioner :- Ram Lakhan Respondent :- Addl. Distt. & Sess. Judge & Others Counsel for Petitioner :- Anshu Chaudhary,Rajesh Kumar Tiwari,Siddharth Verma Counsel for Respondent :- Govt. Advocate,Prasahant Kumar Singh Hon'ble Ramesh Sinha,J.
1. The present writ petition along with connected Writ Petition No.1328 of 2006 (Rama Shankar Vs. Additional Sessions Judge, Kanpur Nagar & others) was dismissed by this Court on 6.4.2012 as none had appeared on behalf of the petitioner to press the writ petition. Thereafter, a recall application was moved on behalf of the petitioner which was also rejected by this Court vide order dated 6.8.2012.
2. It appears that one of the legal heir of the petitioner had filed a SLP before the Apex Court and the matter was remanded back to this Court by the Apex court vide order dated 11.2.2013 to decide the matter afresh in accordance with law by passing a reasoned order within a period of three months.
3. Earlier, the present matter along with the connected petition was listed before the different Benches of this Court and after remand by the Hon'ble Court it came up before this Court for the first time on 13.8.2013, but on one count or the other, i.e., sometimes due to lawyers' strike or on the adjournment sought by the learned counsel for the parties, the matter could not be decided and it was again listed before the different Benches as the roaster changed, hence the matter was listed before the other Benches on different dates ,i.e., on 6.3.2014, 31.3.2014, 15.5.2014, 14.10.2014, 17.10.2014, 3.11.2014, 13.11.2014, 21.11.2014, 16.4.2015, 22.4.2015, 7.7.2015 respectively. On 23.7.2015, connected Crl. Misc. Writ Petition No.1328 of 2006 (Ram Shankar Vs. Additional Sessions Judge, Kanpur Nagar and others) was listed before this Bench but the present matter though was connected with the said petition but was not printed in the cause list, hence, on 23.7.2015 order was passed by this Bench in Crl. Misc. Writ Petition No.1328 of 2006 to list the present matter with the said petition after fresh nomination from Hon'ble the Chief Justice and the same was nominated to this Bench by Hon'ble the Chief Justice vide order dated 30.7.2015 for deciding the matter along with connected matter and it came up before this Court thereafter on 7.8.2015 on which date Sri Ashok Trivedi, learned counsel for the petitioner in the connected writ petition had sent an illness slip, hence the matter was directed to be listed in the next cause cause list peremptorily. On 20.8.2015, parties filed their written arguments and after hearing the learned counsel for the parties, the judgment was reserved on 20.8.2015.
4. A separate order is being passed in the present petition as in the connected petition the sole petitioner-Ram Shankar has died.
5. Heard Sri Siddhartha Verma, learned counsel for the petitioner, Sri Prashant Kumar Singh, learned counsel for respondent no.3 , learned AGA for the State and perused the record.
6. The brief facts of the case are that respondent no.3, Nand Kishore son of Vidya Sagar had moved an application under Section 133 Cr.P.C. before the Court of Magistrate on 1.9.2003 stating therein that the petitioner along with his brother, namely, Ram Shanker (since deceased) has constructed 5 ft. wide Chabutra on the public pathway. Thus, encroachment upon the public pathway is causing nuisance in free movement of public and particularly heavy vehicles, on account of which the pathway also appears to be narrow. It was further alleged that the petitioner and his brother Ram Shankar (since deceased) has also occupied the open piece of land and constructed 'Nad' and keeping cow-dungs etc. On the said application, a police report was called from the concerned police station Maharajpur, District Kanpur Nagar, which was submitted on 15.9.2013. Further, a report was also called from the Tehsildar, Sadar, Kanpur Nagar, who also submitted his report on 2.12.2013. After perusing the inquiry report of police report as well as Tehsildar, Sadar Kanpur Nagar, the learned Magistrate issued a notice on 25.5.2004 under Section 133 (1) Cr.P.C. to the petitioner and his brother Ram Shanker (since deceased) to remove the encroachment or to show cause. In pursuance of the same, the petitioner filed a detailed objection on 4.8.2004 stating therein that the disputed property is not a public pathway and his house which constructed about 60 years ago and the Chabutra is also very old and in front of it there is an open piece of land. The kharanja of Nagar Palika is from G.T. Road to the house of Nand Kishore and after that there is private property of the petitioner which he has permitted for movement of the masses. The aforesaid Chabutra was constructed at the time of the construction of the house and notice/proceeding under Section 133(1) Cr.P.C. has been initiated in a mechanical manner. The S.D.M., Kanpur Nagar rejected the objection of the petitioner, allowed the application of respondent no.3 and passed final orders on 4.2.2005 under Section 138 Cr.P.C. for removing the said encroachment/construction on the public pathway. Aggrieved by the said order dated 4.2.2015, the petitioner and his brother Ram Shankar (since deceased) had filed a Criminal Revision No.94 of 2005 (Ram Lakhann Vs. State State of U.P.) before the lower revisional Court on 9.2.2005, which too was rejected by the lower revisional court vide order dated 19.2.2005. Hence, the present writ petition challenging the impugned order dated 4.2.2005 passed by the learned Magistrate and lower revisional Court.
7. It has been argued by the learned counsel for the petitioner that the police report submitted on 15.9.2003 was absolutely inconclusive report. In fact it had suggested the interference of the Revenue Department and had in fact observed that the disputed construction was an old one and not of such a nature which should be dealt with under Section 133 Cr.P.C.
8. Further the report of the Revenue Department, i.e., Tehsildar, Tehsil Sadar, District Kanpur Nagar dated 2.12.2013 which also categorically stated that the matter could be settled by the competent Court as it was an old abadi.
9. Learned counsel for the petitioner further urged that in view of the Section 9 of U.P.Z.A. & L.R. Act, it is clear that settlement of Sahan land takes place under the U.P.Z.A.& L.R. Act and any construction over the old abadi can be dealt with by the Civil Court only .The learned Magistrate did not conduct any inquiry as contemplated under Section 137 Cr.P.C. and passed a conditional order on 25.5.2004 under Section 133 Cr.P.C., on which an objection was filed by the petitioner. He further submitted that the petitioner vide his reply dated 4.8.2004 has vehemently objected that there was no nuisance as obstruction made by the petitioner is an old construction. He vehemently argued that under the provision of Section 137 Cr.P.C., an inquiry is contemplated and the learned Magistrate had to examine as to whether denial of the petitioner was based on any reliable evidence or not.
10. He submitted that the disputed spot was an old abadi, therefore, there was no question of any further evidence to be led and definitely all the land appurtenant would be settled upon the petitioner under Section 9 of U.P.Z.A. & L.R. Act. Thus, there was no option with the learned Magistrate but to stay the proceeding as has been recommended by the Tehsildar that the right of the parties were to be decided by the competent Civil Court.
11. He further pointed out that from the order sheet of the Court of learned Magistrate, it appears that no inquiry of any nature was undertaken either for coming to the conclusion that there was some reliable evidence in support of the denial of the petitioner nor did the proceeding proceed as they are supposed to proceed in the manner as a summons case. He further submitted that the learned Magistrate has committed gross illegality in relying upon the affidavits of some persons as the same could not be treated as evidence during the process of inquiry as the persons who have filed affidavits have to be produced before the learned Magistrate for recording their evidence nor any opportunity was given to the petitioner for cross examining them.
12. He argued that an Original Suit No.859 of 2012 on 6.9.2012 was filed by the petitioner regarding the property in question, which is sub-judice before the competent Civil Court. The respondent no.3 had filed an application for dismissing the suit as not maintainable which was rejected by the learned trial Court on 2.2.2015, against which a revision was also preferred by respondent no.3 which too was dismissed by the lower revisional Court on 5.8.2015.
13. He lastly submitted that the alleged nuisance is of the year 2003 and there is no urgency to proceed in summarily manner as is provided under Sections 133 to 138 Cr.P.C., therefore, the entire proceedings under Section 133 Cr.P.C. may be quashed and the result of Original Suit no.859 of 2012 is pending in the Court of Civil Judge (Junior Division), Kanpur may be awaited.
14. Sri Prashant Kumar Singh, learned counsel for respondent no.3 has vehemently opposed the prayer for quashing of the impugned orders and has submitted that as the constructed Chabutra on the pathway in front of the house of the petitioner, thus, he encroached upon public pathway and has constructed 'Nad' and also keeping cow-dung's on the open land which is causing nuisance in movement of public and heavy vehicle.
15. He further submitted that the learned Magistrate has given sufficient opportunity to the petitioner for recording his statement and to file documentary evidence but the petitioner has not filed his oral or documentary evidence. He pointed out that the civil suit which has been filed by the petitioner, i.e., Civil Suit No.859 of 2012 for declaration of his right over the land in question is after the dismissal of the writ petition on 6.4.2012 and recall application on 6.8.2012 respectively. He argued that the disputed land is not of a Gaon Sabha land, but it was part and parcel of Nagar Palika, Kanpur Nagar, but to ascertain whether there is public road or it is a public property no effort was made by the respondents to get any report from the Nagar Nigam.
16. He argued that the respondent no.3 has filed sufficient evidence to show that the petitioner has encroached public pathway by constructing Chabutra and 'Nad' on the same and further the affidavits have been filed by several persons of the village to prove the case that the petitioner has encroached the public pathway. The respondent No.3 has also filed documentary evidence i.e,, application dated 14.3.2004 and 15.3.2004 moved before the S.O. Of Police station Maharajpur, District Kanpur Nagar showing the fact that the petitioner and his brother admitted the existence of the public pathway. The said fact was not controverted by the petitioner and his brother Ram Shanker (since deceased) either before the learned Magistrate or before the lower revisional Court. He argued that the order passed by the learned Magistrate and lower revisional Court is in consonance with law, hence, the present writ petition is liable to be dismissed.
17. Considered the submissions advanced by the learned counsel for the parties and perused the record.
18. It appears from the application moved by respondent no.3 before the learned Magistrate for initiating proceeding under Section 133 Cr.P.C., the police report was called for alongwith the report of Tehsildar and the learned Magistrate passed an order under section 133 (1) Cr.P.C. calling upon the petitioner to remove the obstruction causing nuisance on public pathway and the petitioner had filed his objection and the learned Magistrate passed a conditional order under Section 133(1)(a) (i) Cr.P.C. on 4.2.2005 and under Section 138 (2) Cr.P.C. passed a final order directing the petitioner and his brother Ram Shankar (since deceased) to remove the construction which was found on public pathway.
19. It appears from the order of the learned Magistrate that the learned Magistrate on the basis of the affidavits of the respondent no.3 and other persons of the village and Gaon Sabha, police report of police station Maharjpur, Kanpur Nagar stating that the petitioner and his brother Ram Shankar (since deceased) had obstructed the public land, has ordered for removal of the same.
20. The contention of the learned counsel for the petitioner that the learned Magistrate was not legally justified in considering the affidavits filed by the respondent no.3 and other persons and arriving at a conclusion that the petitioner has caused obstruction and further public nuisance on a public pathway appears to have substance as the learned Magistrate has not conducted the inquiry as required under Section 137 (1) & (2) Cr.P.C., though the petitioner has denied existence of any public right on the disputed site.
21. Furthermore, it is apparent from the order passed by the learned Magistrate that he has taken into account the affidavits of respondent no.3 and other persons and the said affidavits cannot be treated as evidence as it appears that no witnesses were examined by the learned Magistrate before it nor any opportunity was provided to the petitioner for cross-examining the said witnesses. Hence, the inquiry as required under sections 137(1) & (2) & 138(1) Cr.P.C. by the learned Magistrate has not been conducted in order to come to a conclusion for passing order under Section 133 (1) (a) (i) & 138(2) Cr.P.C. The lower revisional Court also did not consider the case of petitioner and dismissed the revision of the petitioner mechanically and upheld the order of the learned Magistrate.
22. Thus, the impugned orders passed by the learned Magistrate and confirmed by the lower revisional Court cannot be sustained in the eyes of law, hence, the same are hereby quashed.
23. The matter is remanded back to the learned Magistrate to pass fresh orders after hearing the parties and considering their evidence strictly following the procedure as provided under Section 137(1) & (2) & 138(1) Cr.P.C. within two months from the date of production of a certified copy of this order.
24. The interim order stands vacated.
25. With the foregoing discussions, the present writ petition stands allowed.
Order Date : 16.10.2015 NS