Narendra Singh vs State Of U.P. And 4 Others
2013 Latest Caselaw 4183 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

         A.F.R.	
 

 
COURT NO. 50
 

 
CRIMINAL MISC. WRIT PETITIION NO. 12644 OF 2013
 

 
Petitioner - Narendra Singh 
 

 
Respondents - State of U.P. And others

Counsel for the petitioner : Sri Dharam Pal Singh, Sr. Advocate assisted 				    by Sri S. Niranjan 
 

 
Counsel for Respondent no. 1 : AGA
 

 
Counsel for respondents 3:  Sri Upendra Kumar Singh
 

 
Hon'ble Anil Kumar Sharma, J
 

 
	Heard Sri Dharam Pal Singh, Senior Advocate assisted by Sri S. Niranjan, Advocate for the petitioner, learned AGA for the State and Sri Upendra Kumar Singh, Advocate for respondent no. 3 and perused the record.
 

In this petition under Article 226 of the Constitution of India, the petitioner has prayed for writ of certiorari quashing the impugned order dated 6.6.2013 passed by Addl. Session Judge/Temporary Ex.-Cadre Post-1, Jalaun at Orai in Criminal Revision no. 6 of 2013 arising out of order dated 4.1.2013 passed by Sub-Divisional Magistrate, Madhaugarh District Jalaun in Case no. 6 of 2012 Jai Karan Singh and others versus Narendra Singh u/s 133 Cr.P.C. and all subsequent proceedings pursuant thereof.

Brief facts germane to this petition are that on 6.6.2012 and 8.6.2012 some villagers including Hansraj Singh and others of village Surpatipura complained to the Sub-Divisional Magistrate, Madhaugarh in writing that the petitioner has encroached upon the public land (rasta). The SDM called for enquiry report from Tahsildar. In the meantime the petitioner also submitted an application against Jai Karan Singh and others (opposite party no. 2 to 5) alleging that they are raising constructions on the public road, which should be stopped. The Lekhpal submitted report dated 22.6.2012, whereupon the SDM on 22.6.2012 directed S.O., Madhaugarh and Nai Tahsildar for making local inspection and in case illegal constructions are found, they should be removed. However, on 6.7.2012 the petitioner filed Original Suit no. 271 of 2012 for permanent injunction against opposite parties no. 2 to 5 with respect to the land in dispute. On the report of Naib Tahsildar, the SDM on 10.7.2012 passed a conditional order u/s 133(1) Cr.P.C. directing the petitioner to remove the encroachment, else to show cause by 18.7.2012, why the notice be not made absolute. On 13.8.2012 the petitioner filed objections inter alia stating that in view of the pendency of the civil suit with respect to the same land in dispute, the proceedings u/s 133 Cr.P.C. are not maintainable and as such they be dropped. The Tahsildar again submitted report dated 18.10.2012, which was received on 31.10.12. Thereafter the learned Magistrate made spot inspection 20.11.2012 and after hearing the parties' counsel passed final order on 4.1.2013 directing the petitioner to remove his encroachment on public land measuring 3' x 20'. The petitioner preferred criminal revision no. 6 of 2013 before the Sessions Judge, which was dismissed on 6.6.2013 by Addl. Sessions Judge/Temp. Ex-Cadre Post-1, Jalaun at Orai. Aggrieved, the petitioner has filed the instant writ petition.

The respondent no. 3 in his counter-affidavit has averred that the petitioner has encroached upon 3ft. wide public rasta by including the neem tree in his chabutra in the month of June, 2012, as is evident from the inspection reports of Lekhpal and Tahsildar; that the petitioner has himself admitted in his application Annexure-2 that he was constructing the wall of his chabutra, which was being obstructed by Jai Karan Singh, Har Govind Singh, and Kaptan Singh and he requested the SDM to restrain them from interfering in his construction. It has been further contended that the petitioner has filed application on 8.10.2012 for withdrawal of the civil suit no. 271 of 2012.

Upon hearing counsel for the parties and perusal of the record it is apparent that the petitioner has filed civil suit apprehending action by the SDM on the application of the villagers u/s 133 Cr.P.C. and in the suit he did not get any interim relief. He has also applied for withdrawal of the suit with permission to file another suit after removal of legal defects. In his objections to the notice u/s 133(1) CrPC, the petitioner has denied the existence of public rasta and has contended that he has filed civil suit no. 271/12 wherein the question of ownership of the disputed piece of land is involved.

Learned counsel for the petitioner has vehemently argued that the learned Magistrate has not followed the procedure as laid down in Section 137 and 138 Cr.P.C. To appreciate the controversy involved in the case it would be useful to reproduce Sections 135, 137 to 139, which are as under:

"S. 135. Persons to whom order is addressed to obey, or show cause--The person against whom such order is made shall-

(a) perform, within the time and in the manner specified in the order, the act directed thereby; or

(b) appear in accordance with such order and show cause against the same."

"S. 137- (1) Where an order is made under Section 133 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 his 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 thereof 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."

"S. 138. (1) If the person against who,m 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, with such modification.

(3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case."

"S. 139. The Magistrate may, for the purposes of an inquiry under Section 137 or Section 138-

(a) direct a local investigation to the made by such person as he thinks fit; or

(b) summon and examine an expert."

The above provisions clearly show that if a complaint is instituted invoking jurisdiction under Section 133 Cr.P.C., the Magistrate is empowered, on taking such evidence as he thinks fit, to pass a conditional order requiring the person causing such nuisance within the time fixed in the order, to remove such obstruction. Section 135 Cr.P.C. envisages the issuance of notice to appear before the Magistrate on a date to be fixed by the conditional order to show cause against the said order Under Section 137 Cr.P.C., if such person appears and shows cause against the order, it is obligatory upon the Magistrate to take evidence in the matter treating it as a summons case and on appreciation of the evidence produced by the parties before the Magistrate, if he is satisfied that the order is not reasonable and proper, he will stop the proceedings or vice versa. In the instant case after alleged the denial of existence of public rasta, but in the absence of reliable evidence in support of such denial, the Magistrate has proceeded under section 138 Cr.P.C. There were reports of Lekhpal and Tahsildar showing that the petitioner has encroached upon 3 ft. wide public rasta by erecting wall of chabutra. These reports further show that Jai Karan Singh has also encroached upon 1 ft. wide public rasta and it was confirmed in the spot of inspection of Magistrate. In the impugned order Jai Karan Singh was also directed to remove the encroachment from the rasta and in the counter affidavit it has been stated that this encroachment had been removed. This contention of the respondent no. 3 finds support from the police report dated 8.1.2013, which is Annexure-CA-4 to the counter affidavit.

As regards criticism about spot inspection by the Magistrate, it is true that no notice was given to the parties about it and no inspection report is on record, but suffice it to say that the impugned order with regard to the petitioner is not solely based upon the spot inspection of the Magistrate, but the foundation is the reports of Lekhpal, Naib Tahsildar and Tahsildar, which are admissible u/s 140 (2) Cr.P.C. and no objection appears to have been filed by the petitioner. The Tahsildar's report dated 18.10.2012 reads, thus:

" vkids vkns'k fnukad 11-09-2012 ds vuqikyu esa xzke&lqjiriqjk esa fookfnr LFky galfjkt vkfn rFk ujsUnz flag vkfn ds fookfnr jkLrs dh tkap dh x;hA vkids vkns'k ds vuqikyu esa mDr LFky dh QksVksxzkQh Hkh djok;h x;hA layXu uD'kk utjh ds vuqlkj jkLrs dh pkSM+kbZ lat; flag vkfn o txjke flag ds e/; 17 QqV gS mlds ckn nf{k.k fn'kk esa tkus ij bl jkLrs dh pkSM+kbZ dze'k% 6 QqV] 8-3 QqV] 6 QqV 2 bap rFkk 7 QqV 7 bap jg x;h gSA tcfd iwoZ dh tkap esa ;g jkLrk vf/kd FkkA bl jkLrsa esa 1-5 QqV [k.M+tk m[kkM+dj pcwrjk cuk fn;k gSA bl izdkjk ujsUnz flag iq= guqeUr flag }kjk jkLrk ds 3 QqV Hkwfe ij ,d iDdh nhokj o dPpk pcwrjk cuk fy;k x;k gS tks fd voS/kkfud gSA lacaf/kr izdj.k esa Jheku~ U;k;ky; flfot tt ¼tw0fM0½ tkykSu dh vnkyr esa fopkjk/khu gSA "

A perusal of this report shows that it is not exparte. It contains the mention of civil suit filed by the petitioner on 6.7.2012, which has been dealt above. In the facts and circumstances of the case, the learned Addl. Sessions Judge has rightly held that the petitioner in order to continue to his illegal possessions had filed the civil suit.

Learned counsel for the petitioner has placed reliance on the case of Brij Kishore Rai Vs. State of U. P. 2002 (45) ACC 834, wherein this Court held that the sole basis for deciding the matter in controversy was the local inspection made by the Magistrate and the order passed by the Magistrate and the Sessions Judge were quashed. However, this case is of no help to the petitioner, as in the instant case the findings of the learned Magistrate are not solely based on his local inspection. The photographs filed along with the counter affidavit clearly depicts the spot position and encroachment made by the petitioner on public rasta. The extension of chabutra on public rasta is clearly visible by naked eye.

It is important to note here that prior to filing of the civil suit on 6.7.2012, the petitioner has filed an application before the SDM for directing Jai Karan Singh and others not to interfere in construction of boundary wall of his chabutra. Along with the petition the petitioner has filed Annexure-2 which clearly shows that the petitioner has constructed the boundary of his chabutra in the first week of June, 2012. He has moved an application to the SDM complaining obstructions of Jai Karan Singh and others in the following words :

" lsok esa]

Jheku mi ftykf/kdkjh egksn;]

ek/kksxJheku~ th]

vuqjks/k gS fd izkFkhZ xzke&lqjifriqjk] ijxuk&ek/kksx<] ftyk tkykSu dk 'kkafrfiz; ,oa dkuwu esa vkLFkk j[kus okyk O;fDr gSA izkFkhZ vius edku ds vkxs pcwrjk dh fdukjh iDdh cuok jgk FkkA xzke fuoklh t;dju flag iq= gfj'pUnz flag] gjxksfoUn flag iq= t;dju flag] dIrku flag iq= txjke flag izkFkhZ ds fuekZ.k dk;Z esa vuko';d :i ls ck/kk fuekZ.k dk;Z esa dj jgs gS tcfd mDr txg ls t;dju flag vkfn dk dksbZ okLrk ljksdkj ugha gSA

vr% Jhekuth ls fuosnu gS fd izkFkhZ vius ?kj ds vkxs pcwrjk dh ckmUMªh cukus esas t;dju flag vkfn dks vuko';d :i ls gLr{ksi djus ls jksdus dh d`ik djsaA vfr d`ik gksxhA

fnukad% 08-06-2012 izkFkhZ & ujsUnz flag iq= guqeUr flag "

On this application, the SDM directed the Naib Tahsildar to personally inspect the spot and report. On the applications of Hans Raj Singh and others dated 6.6.2012 and the above complaint of the petitioner, the Naib Tahsildar has submitted report to the SDM on 9.7.2012 and he recommended for initiation of proceedings u/s 133 Cr.P.C. After objections of the petitioner, the spot was again inspected by the Tahsildar, who has submitted his report dated 18.10.2012, which was received in the Court of the SDM on 31.10.2012.

Proceedings under Section 133 of the Cr.P.C. are emergent in nature and are undertaken with a view to provide immediate relief to public as an urgent measure before taking such recourse from competent Civil Court. An action under this section may not be taken where the obstruction or nuisance has been in existence for a long period unless there has been any change in the circumstances investing urgency in the matter [Vide Vasant Manga Nikamba Vs. Baburao Bhikanna Naidu 1996 SCC (Cri) 27].

In view of what has been said and done above lead us to the conclusion that the impugned orders passed by the Courts below do not suffer from illegality or jurisdictional error. The petition lacks merits and is accordingly dismissed.

(Anil Kumar Sharma, J)

July 16, 2013

KCS/-