Kamlesh Kumar Soni vs State Of U.P. And 6 Ors.
2018 Latest Caselaw 3398 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 53								A.F.R.
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 11099 of 2018
 

 
Petitioner :- Kamlesh Kumar Soni
 
Respondent :- State Of U.P. And 6 Ors.
 
Counsel for Petitioner :- Raj Kumar Tripathi, Rakesh Kumar Singh
 
Counsel for Respondent :- G.A. 
 

 
Hon'ble J.J. Munir,J.

1. This Criminal Misc. Writ Petition under Article 226 of the Constitution has been filed by the petitioner asking this Court to issue a writ, order or direction in the nature of mandamus to the Sub-Divisional Magistrate, Machhali Shahar, Jaunpur, respondent no.3 to enforce his order absolute, dated 31.12.2016 passed under Section 133 Cr.P.C. by requiring him to do that in pending proceedings under Section 141 Cr.P.C.

2. Heard Sri Raj Kumar Tripathi, learned counsel for the petitioner, Sri S.K. Pal, learned Government Advocate assisted by Sri Indrajeet Singh Yadav, learned Additional Government Advocate.

3. A short background of facts that brought the petitioner to this Court are that the petitioner is a resident of Village & Post Sarai Bhogi, Police Station Surajganj, Pargana Gadawara, Tehsil Machhali Shahar, District Jaunpur. He claims to be a law abiding citizen. Though not pleaded specifically by the petitioner, what emerges is that he is the Bhumidhar of Khasra no.133, admeasuring 0.028 hectares, to the southern side of which there is a public road maintained by the Public Works Department, located in Khasra no.164. He claimed that respondents nos.5 to 7 have illegally encroached land of Khasra no.164, that is a public road, entered in the revenue records as Pakki Sadak, by constructing pakka houses over land of Khasra no.164. The extent of encroachment of the public road, thus made in Khasra no.164, was indicated to be one room constructed by respondent no.5, Shailendra Kumar Singh, one room by respondent no.6, Kewala Yadav and two rooms, one large sized, and, another small, by respondent no.7, Mahendra Yadav. It was claimed that between his land in Khasra no.133 and the public road in Khasra no.164, there was no other Khasra number(s), wherein the said respondents might have some right, title or interest, authorizing them to erect the offending constructions.

4. The petitioner, with the aforesaid case, moved the Sub-Divisional Magistrate, Machhali Shahar, Jaunpur through an application under Section 133 Cr.P.C., giving rise to Case no. T201614360315180, Kamlesh Soni vs. Shailendra Kumar and others, seeking removal of the aforesaid constructions as an unlawful obstruction from a public road. The aforesaid application was filed by the petitioner on 18.06.2015 to the Magistrate. It appears that initially the said application, though invoking jurisdiction of the Magistrate under Section 133(1) Cr.P.C. was dealt with on the administrative side, where some enquiries were ordered to be made by the Revenue Inspector. The Revenue Inspector submitted a report dated 07.07.2015 reporting that Khasra no.164(M)/ 0.155 hectare, situate at Village Sarai Bhogi, was recorded as main road in the revenue records (it has later emerged that the correct Khasra number is 164, not minjumla, and, the area is 0.255 hectare, not 0.155). It was also reported that the petitioner had his holding in Khasra no.133 admeasuring 0.028 hectare to the north of Khasra no.164. It was further said in the report under reference, that between Khasra no.133, and, Khasra no.164, to the south of Khasra no.133, respondent nos.5, 6 & 7 have constructed pucca rooms, whereas there is no land available between the two Khasra numbers; the constructions were reported to be an encroachment.

5. It appears that since, the constructions were found to be an encroachment over the land recorded as a road, the maintenance of which vests in the PWD, the Sub-Divisional Magistrate instead of proceeding in the matter further in accordance with the provisions of Section 133 Cr.P.C., chose to take further administrative recourse. He apprised the officials of the PWD about the encroachment, and, left it to them to take appropriate steps in the matter, may be under the U.P. Roadside Control Act. Whether proceedings under the last mentioned Act were drawn, is neither the concern of this Court or otherwise relevant here. But, it is discernible that no action was, until then taken, under the provisions of Section 133(1) Cr.P.C. by the Magistrate. It appears that the Magistrate chose to pursue the matter with the officials of the PWD, to take steps for the removal of encroachment, instead of exercising jurisdiction vested in him under Section 133(1) Cr.P.C. He appears to have addressed memo dated 03.08.2015 to the Assistant Engineer-III, Provincial Division, Jaunpur, requiring him to take steps for removal of the encroachment.

6. At this stage, the petitioner finding inaction on the part of the Sub-Divisional Magistrate, in the matter of exercising powers under Section 133 Cr.P.C., approached this Court by means of Writ - C no.9880 of 2016, seeking a direction to the Sub-Divisional Magistrate, Machhali Shahar, Jaunpur to conclude proceedings in accordance with the provisions of Section 133 Cr.P.C. on a time bound schedule. The order passed by this Court shows, that the petitioner had earlier directly approached this Court, seeking a direction to remove those encroachments that was disposed of directing the petitioner to take recourse to his statutory remedy, under Section 133 Cr.P.C. The grievance of the petitioner, therefore, was that the Magistrate, instead of proceeding in the matter in accordance with law, referred the matter to the Assistant Engineer, PWD. This Court, on 02.03.2016, in Writ - C no.9880 of 2016, passed the following order:

"The petitioner had earlier filed Writ-C No. 31834 of 2015 alleging encroachment on public road by respondent nos. 7 to 9. This petition was disposed of by giving liberty to the petitioner to initiate proceedings under Section 133 of Criminal Procedure Code, 1973. The petitioner moved an application before the Sub-Divisional Magistrate on 17 June 2015, but instead of deciding the matter, the Sub-Divisional Magistrate has referred the matter to the Assistant Engineer in the Public Works Department to take a decision.

Sri Manu Khare, learned counsel for the petitioner has submitted that the Sub-Divisional Magistrate could not have referred the matter to the Assistant Engineer of the Public Works Department as under Section 133 of Criminal Procedure Code,1973, he himself is competent to take a decision.

Learned Standing Counsel appearing for the respondents states that the Sub-Divisional Magistrate shall now act in accordance with the provisions of Section 133 of Criminal Procedure Code,1973 and conclude the proceedings expeditiously.

This writ petition, is accordingly, disposed of with a direction to the Sub-Divisional Magistrate, Machhali Shahr district, Jaunpur to conclude the proceedings in accordance with the provisions of Section 133 of Criminal Procedure Code, 1973 expeditiously and preferably within a period of two months from the date of filing of a certified copy of this order."

7. It was on receipt of the said orders by this Court, that the Magistrate moved ahead with proceedings under Section 133 Cr.P.C. A conditional order dated 10.05.2016 was passed by the Magistrate, after calling for a report from the police, that was submitted on 25.04.2016, affirming the fact of illegal encroachment of a public road. The conditional order required the respondents nos.5 to 7 here, to remove the offending constructions, or to show cause in the matter. The private respondents put in appearance before the Magistrate, and, took defence that the constructions raised by them were located in Khasra no.164-cha/ 0.255 hectares, of which the original tenure holder was one Radha Devi, the constructions being raised with her permission. It was denied that the constructions were located in Khasra no.164, that was recorded land of a public road.

8. The Magistrate proceeded to require parties to adduce evidence in accordance with the provisions of Section 138 Cr.P.C., where evidence was led on both sides as required by law. Upon a consideration of respective case of parties, the evidence led, and, hearing both sides, the Magistrate proceeded to make the conditional order dated 10.05.2016 absolute vide his order dated 13.12.2016, ordering the private respondents to remove the offending constructions. The following finding was recorded by the Magistrate in his order dated 13.12.2016:

"mHk;i{kksa ds fo}ku vf/koDrkvksa ds rdksZ dks lquus ds mijkUr eSaus i=koyh dk voyksdu fd;kA i=koyh ij miyC/k jktLo fujh{kd dh fjiksVZ esa Li"V mYys[k gS fd vk0ua0 [email protected] gs0 eq[; lM+d ds :i esa ntZ gS ftlds mRrj izkFkhZ deys'k lksuh dh vk0ua0 [email protected] gs0 gSA blh vkjkth 133 o 164 ds e/; vk0ua0 133 ds nf{k.k foi{khx.k }kjk yksd fuekZ.k foHkkx dh Hkwfe ij iDdk dejk cukdj vfrØe.k fd;k x;k gSA ftlds lEcU/k esa yksd fuekZ.k foHkkx }kjk foi{khx.k dks uksfVl Hkh tkjh dh x;h gSA i=koyh ij miyC/k Fkkuk/;{k lqtkuxat dh fjiksVZ fnukad 25&04&2016 esa Hkh Li"V mYys[k gS fd vk0ua0 164 lkoZtfud ekxZ ij dejk cukdj o dejs ds vkxs Vhu 'ksM o pcwrjk cukdj jkLrs dks vo#) dj fn;k x;k gS foi{khx.k }kjk izLrqr lk{;ksa dk voyksdu djus ls Li"V gS nhokuh U;k;ky; esa vk0ua0 133 ds ckor okn fopkjk/khu gS vkSj LFkxuk vkns'k dh vk0ua0 133 ds ckor gS] tcfd foi{khx.k }kjk lM+d [kkrs dh Hkwfe 164 ij voS/k fuekZ.k fd;k x;k gSA bl izdkj foi{khx.k }kjk izLrqr lHkh lk{; cyghu fl) gksrs gSa] foi{khx.k }kjk lM+d [kkrs dh Hkwfe vk0ua0 164 ij voS/k vfrØe.k fd;k tkuk fl) gSA vr% /kkjk 138¼2½ na0iz0la0 ds vUrxZr l'krZ vkns'k vUrxZr /kkjk 133¼1½ na0iz0la0 fnukafdr 10-05-2016 dh iqf"V ,oa vfUre fd;k tkuk lehphu gSA"

9. Aggrieved by the said order, the private respondents went up in revision to the learned Sessions Judge, Jaunpur, where the same was numbered as Criminal Revision no.284 of 2016. The revision aforesaid, on assignment came up, before the Additional Sessions Judge/ Fast Track Court, Jaunpur for determination on 28.03.2017, who proceeded to hear and dismiss the same, affirming the Magistrate's order dated 13.12.2016. The private respondents assailed both orders before this Court by means an Application u/s 482 Cr.P.C. being Application u/s 482 no.11826 of 2017. The application was dismissed by this Court vide order dated 09.04.2017. Thus, the order dated 13.12.2016 passed by the Magistrate has attained finality.

10. Orders under Section 133 Cr.P.C. passed by the Magistrate, despite attaining finality, were not complied with by the private respondents. This compelled the petitioner to move the Magistrate again through an application dated 05.06.2017, seeking enforcement of the order dated 13.12.2016 passed by the Magistrate. The Magistrate entertained the application as one made in Case no.T201614360315180, under Section 133 Cr.P.C., issued a memo dated 20.06.2017 to the S.H.O., P.S. Sujanganj, District Jaunpur, requiring him to ensure enforcement of the order dated 13.12.2016. The S.H.O., P.S. Sujanganj, in response, submitted a report dated 25.08.2017, requesting that for the purpose of removal of encroachment, a competent officer may be appointed. The SDM acting on the report of SHO last mentioned, nominated the Tehsildar, Machhali Shahar as the officer to enforce the order dated 13.12.2016, with the assistance of the SHO, and, to cause the encroachment to be removed.

11. At this stage, the petitioner was advised to formally invoke the jurisdiction of the Magistrate under Section 141 Cr.P.C. to enforce the order absolute dated 13.12.2016. The petitioner, accordingly, moved an application dated 13.12.2016, under Section 141 Cr.P.C. seeking initiation of appropriate proceeding for non-compliance of the order absolute, and, further to cause encroachment ordered to be removed, to be removed at the cost of the private respondents.

12. The Magistrate acting on the aforesaid application registered as Case no. Nil, under Section 141 Cr.P.C., issued notice dated 03.11.2017 to the private respondents here, calling upon them to appear on 16.11.2017, and, show cause why proceedings against them be not taken in accordance with law, for their failure to comply with the order dated 13.12.2016, affirmed at all levels of review procedures, even by this Court.

13. In this connection, the provisions of Section 141 Cr.P.C. may be quoted:

"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."

14. The said proceedings have lingered on, on the file of the Magistrate from 16.11.2017 to 13.04.2018, across nine dates, until time that the present writ petition was filed. It is this gross inaction of the Magistrate, in enforcing the order under Section 133 Cr.P.C. - one that has attained finality between parties - and, to which the private respondents were claimed to have paid no heed, that has brought the petitioner to this Court, asking for a writ, order or direction in the nature of mandamus, to decide pending proceedings under Section 141 Cr.P.C., but in substance seeking enforcement of the order absolute dated 13.12.2016.

15. This Court, perhaps noticing the chequered history of proceedings, did not summarily dispose of the matter in accordance with the apparent tenor of the relief, when this petition came up for admission, the first time. Instead, on 02.05.2018, the following order was made:

"Heard learned counsel for the applicant and learned AGA for the State.

The present petition has been filed for execution of the order dated 13.12.2016 passed under Section 133 Cr.P.C.

Learned counsel for the applicant submits that earlier the respondents no. 5 to 7 filed a criminal revision no. 284 of 2016 before the learned court below, which was dismissed vide order dated 28.03.2017 and thereafter they had filed an application U/s 482 Cr.P.C. No. 11826 of 2017, which was also dismissed by this Court vide order dated 19.04.2017. However, till date the aforesaid orders have not given effect to besides the fact that the applicant had instituted the proceeding under Section 141 Cr.P.C. for its order dated 13.12.2016 compliance, on 28.10.2017.

In view of the above, learned AGA prays for and is granted two weeks' time to obtain instructions.

As prayed, put up as fresh on 17.05.2018."

16. Again on 25.05.2018, the following order was passed:

"Despite two orders dated 02.05.2018 and 17.05.2018, learned AGA expresses his difficulty on account of lack of instructions.

Consequently, list on 02.07.2018 as fresh. On which date, the S.D.M., Machhali Shahar, Jaunpur may file his personal affidavit both as to the action taken in pursuance of the earlier orders passed by this Court and also explain his conduct as he has not complied with the Court's order and why delay has been caused in the proceedings that are pending before this Court.

A copy of this order may be communicated to the District Magistrate, Jaunpur to ensure that compliance of this order may be secured, failing which, the District Magistrate, Jaunpur may file his personal affidavit on the next date.

List on 02.07.2018 as fresh.

Let a copy of this order may be supplied to learned AGA within 24 hours, free of cost."

17. When the matter again came up on 02.07.2018, the Sub-Divisional Magistrate filed a counter affidavit in compliance with the earlier orders of this Court, stating therein that the order dated 13.12.2016 has been carried out, and, the encroachment removed. The said fact was vehemently denied by the petitioner. Going by the respective stand of parties, this Court on 02.07.2018, passed the following order:

"A counter affidavit filed today on behalf of Jagdamba Singh posted as Sub Divisional Magistrate, Machhali Shahar, District Jaunpur in compliance of the order dated 25.05.2018. It is asserted in the said affidavit that the order under Section 133 Cr.P.C. dated 13.12.2016 has been carried out.

Learned counsel appearing for the petitioner has vehemently disputed the aforesaid fact on the basis of instructions received from his client. He submits that a tin shed has been removed as an eye-wash for compliance.

The said fact, if true, would be viewed very seriously. Amongst others, it is the duty of this Court to give effect " to orders passed under the Court [sic Code] (Cr.P.C.)". The present case is precisely one where an order is not being given effect to.

Sri Indrajeet Singh, learned AGA will seek instruction from the District Magistrate, Jaunpur by day after tomorrow whether the compliance is an eye-wash or it is substantial.

The District Magistrate and the Sub Divisional Magistrate while conveying the instruction to the Court shall be careful not to misreport on facts.

Put up this matter day after tomorrow again as fresh.

Let a copy of this order be issued to the learned AGA today for information and necessary compliance."

18. On 09.07.2018, the learned A.G.A. made statement on instructions received from the District Magistrate, that all encroachment had been removed in enforcement of the order dated 13.12.2016 passed by the Sub-Divisional Magistrate, a fact, again seriously disputed by the petitioner, maintaining his stand that the offending constructions were substantially in existence. Accordingly, this Court passed the following on 09.07.2018:

"The learned A.G.A. on the instructions from the District Magistrate, Jaunpur stated that the orders dated 25.05.2018 and 02.07.2018 have been complied with and all pending encroachment that were ordered to be removed by order dated 13.12.2016 passed by the Sub-Divisional Magistrate, under Section 133 Cr.P.C. are no longer in existence.

Learned counsel for the petitioner disputes the aforesaid position. He states also on instruction received from his client that the order for removal of encroachment from the public way by the S.D.M. vide order dated 13.12.2016 has not been completely removed and is substantially in existence.

The District Magistrate shall file a personal affidavit sworn at Allahabad, where he must disclose the stand of the State whether the order of the S.D.M. dated 13.12.2016 has been fully complied with. Material in support of the stand taken shall be appropriately annexed with the counter affidavit. It is made clear that in case the Court is not satisfied that the order has been fully and completely executed, this Court may issue appropriate process to ascertain the position existing on the spot such as a commission or other mode of securing evidence.

Put up this matter as fresh on Monday i.e. 16.07.2018 in the additional cause list."

19. On 17.07.2018, the District Magistrate and the Sub-Divisional Magistrate, both filed personal affidavits maintaining their stand that all encroachments from the public road, in enforcement of the order dated 13.12.2016 have been moved, whereas the petitioner stuck to his stand, that the constructions still remained, substantially there. The Court indicated in the order dated 17.07.2018, that looking to the stand of parties, a Commissioner of the Court may have to be appointed or a Senior Judicial Officer asked to inspect and submit his report in the matter, and, in case the stand of the District Magistrate and the Sub-Divisional Magistrate was found discrepant, appropriate action may be taken against the two officers. On the next hearing, on 23.07.2018, both sides stood as firm as ever by their respective positions, leaving this Court with no option but to request the learned District Judge, Jaunpur to undertake an inspection at site, with the assistance of trained staff, trained in survey, attached to the Civil Court, and, report within a week whether the order of the Sub-Divisional Magistrate for the removal of encroachment has been completely implemented on the spot, or some encroachment still survives. The following order was passed on 23.07.2018:

"The rejoinder affidavit filed today is taken on record.

There is a serious contention between the petitioner and the administrative authorities in the district that includes the District Magistrate and the S.D.M. on the point whether the order for removal of encroachment passed by the Sub Divisional Magistrate on 13.12.2016 has been executed completely on the spot. The submission of the petitioner is that it has been executed in part and much of the encroachment ordered to be removed still survives; whereas the District Magistrate in his counter affidavit has taken stand that he has physically visited the spot, inspected the site and found that order of removal for encroachment has been fully complied with.

Looking to the aforesaid situation in the peculiar facts and circumstances of the case, it is directed that the learned District Judge, Jaunpur shall undertake inspection of the site with the assistance of staff trained in survey measurement attached to the Civil Court and report within a week whether the order of the S.D.M. in question for removal of the encroachment has been completely implemented on the spot or some encroachment still survives.

Lay this matter again as fresh on 02.08.2018 alongwith the report of the learned District Judge, Jaunpur.

This order shall be communicated forthwith by the Registrar General to the District Judge, Jaunpur for necessary compliance."

20. At this stage, it must be noticed that when the order dated 23.07.2018 was passed by this Court, requiring the learned District Judge to inspect site, in order to enable the Court to know whether the order dated 13.12.2016 passed by the SDM had been carried out, and, the encroachment removed, Sri S.K. Pal, learned A.G.A. came up with an objection that the question is one purely of fact, to add to which is the inherent handicap of this Court, in exercise of its writ jurisdiction that limits evidence to the affidavits filed by parties. It is submitted that it is for this reason that pure questions of fact, like the one involved here, are not to be gone into in the exercise of writ jurisdiction by this Court. To the said blanket propositions, this Court does not find itself in agreement with the learned Government Advocate. Though, it is true, that generally speaking pure questions of fact are not nascently adapted to be dealt with in a writ petition, and, likewise, evidence too, is invariably to be confined to affidavits, but there is no absolute disability, either in the matter of deciding a pure question of fact or the taking of evidence, otherwise than on affidavits, in exercise of this Court's writ jurisdiction. In this regard, there is guidance of their Lordships of the Supreme Court in National Thermal Power Corporation Limited vs. Mahesh Dutta, 2010(1) AWC 447 (SC), where relating to a pure question of fact, whether possession had been taken or not, in proceedings under the Land Acquisition Act, 1894, it was held thus:

"33. We may now consider the question as to whether the issue as to whether possession of the acquired land had actually been taken over or not being a disputed question of fact could not have gone into by the High Court. It is not a case where oral evidence was required to be taken. There is no law that the High Court is denied or debarred from entering into a disputed question of fact. The issue will have to be determined keeping in view the fact situation obtaining in each case. If a disputed question can be determined on the basis of the documents and/or affidavit, the High Court may not ordinarily refuse to do so. In a given case, it may also examine witnesses."

(Emphasis by Court)

21. In the circumstances obtaining in the present case, where the respondent authorities, and, the petitioner, are at loggerheads about the fact whether the offending constructions/ encroachment ordered to be demolished by the Magistrate under Section 133 Cr.P.C. has, in fact, been demolished at site, the option to request the District Judge to inspect and report on facts, in the opinion of this Court, is eminently the right option.

22. The learned District Judge, Jaunpur was at pains to undertake a thorough inspection at site, and, submitted a report dated 30.07.2018, along with a forwarding memo dated 30.07.2018, submitting the report through the Registrar General. The forwarding memorandum, and, the report of the learned District Judge, together with its Annexures numbering two, one of which is a map to scale relating to the site, showing existing constructions, numbering three, each belonging to respondents no.5, 6 & 7, denoted by letters A, B, C, D, E, F. A perusal of the map, shows that between the land of the petitioner, bearing Khasra no.133, and, land of the PWD shown in green colour to the south of Khasra no.133, there are three constructions in existence, one each belonging to respondent nos.5, 6 & 7, shown in yellow colour and denoted by letters A, B, C, D, E, F. The said constructions are located to the north of PWD land, that includes the road in its northern most part, and, Khasra no.133, that lies to the south of the PWD land. The report aforesaid submitted by the learned District Judge, Jaunpur has been made part of the record, and, exhibited vide order dated 02.08.2018.

23. The learned District Judge in his report dated 13.07.2018 has summarized his conclusions thus:

"7- vc fLFkfr ;g gS fd mi ftyk eftLVªsV }kjk iz'uxr vkns'k fnukafdr 13-12-2016 varxZr /kkjk 133 na0iz0la0 es vkjkth la[;k 164 ds 0-255 gs0 jdcs es lM+d fLFkr gksus dk fu"d"kZ O;Dr fd;k x;k gSA ekSds ij mifLFkr ;kph }kjk rFkk ftyk eftLVªsV] tkSuiqj] mi ftyk eftLVªsV o rglhynkj eNyh'kgj }kjk ;g Lohdkj fd;k x;k fd ;kph deys'k dqekj lksuh dh vkjkth la[;k 133 ds nf{k.k esa foi{khx.k egsUnz ;kno] dsoyk ;kno o 'kSysUnz dqekj flag dh tks iDdh [email protected] dejs fLFkr gSa os mijksDr jdck 0-255 gs0 esa fLFkr gSaA mijksDr [email protected] dejs dks layXud la0&1 uD'ks esa v{kj ,]ch]lh]Mh]bZ],Q], ls vafdr djrs gq, ihys jax ls n'kkZ;k x;k gSA

fujh{k.k dk fu"d"kZ

8- vr% ekuuh; U;k;ky; dks voxr djkuk gS fd ftl lhek rd yksd fuekZ.k foHkkx viuh lM+d gksuk Dyse djrk gS ml lhek rd ;kph deys'k dqekj lksuh dh vkjkth ds lkeus lM+d ij dksbZ vfrØe.k ekStwn ugh gS] ijUrq mi ftyk eftLVªsV us vius iz'uxr vkns'k esa vkjkth la[;k 164 ds jdcs 0-255 gs0 esa yksd fuekZ.k foHkkx dh lM+d fLFkr gksuk dgk gSA mijksDr 0-255 gs0 jdcs esa [email protected] dejs vHkh Hkh vius LFky ij ekStwn gSa ftUgsa layXud&1 uD'ks esa v{kj ,]ch]lh]Mh]bZ],Q], ls vafdr djrs gq, ihys jax ls n'kkZ;k x;k gSA"

24. This Court has carefully perused the report of the learned District Judge, Jaunpur, which shows that proceedings of spot inspection and survey were undertaken with the assistance of two Civil Court Amins and a Deputy Nazir. At the time of inspection, the District Magistrate, Jaunpur, the Sub-Divisional Magistrate, Machhali Shahar, Jaunpur, Tehsildar, Naib Tehsildar, Kanoongo and Lekhpal, Machhali Shahar, were also present. In addition, the Executive Engineer, the Assistant Engineer, PWD, and, the S.H.O., P.S. Sujanganj, were present. The petitioner, Kamlesh Kumar Soni, and, respondent nos.5, 6 & 7 to this petition, Shailendra Kumar Singh, Kewala Yadav and Mahendra Yadav, respectively, were also present during this inspection. The findings returned by the learned Judge are to the effect that Khasra no.164, admeasuring 0.255 hectare, has been found by the Sub-Divisional Magistrate, in his order dated 13.12.2016 to be recorded as road. It is further recorded in the report, that the District Magistrate, the Sub-Divisional Magistrate, and, the Tehsildar have admitted the fact that the offending constructions, comprising pucca shops/ rooms are located in the aforesaid 0.255 hectare. It has been reported that to the extent that the PWD claim it to be land within the control area of the PWD Public Road, the offending constructions are outside that area. However, the constructions are located in Khasra no.164, admeasuring 0.255 hectare, that has been held to be recorded as PWD Road by the SDM vide his order dated 13.12.2016, passed under Section 133 Cr.P.C. The constructions have been found to be existing on spot, denoted by letters A, B, C, D, E, F in the map annexed to the report, as hereinbefore mentioned.

25. Looking to the fact that the statutory proceedings for enforcement of the order dated 13.12.2016 passed by the Sub-Divisional Magistrate under Section 141 Cr.P.C. are pending before the said Magistrate, on an application by the petitioner, and, the further fact that respondent nos.5, 6 & 7, looking to the limited nature of the relief claimed were not put under notice, it would be appropriate that the Sub-Divisional Magistrate, Machhali Shahar, Jaunpur, may proceed to take the pending proceedings under Section 141 Cr.P.C., brought for the enforcement of his order dated 13.12.2016 to their logical conclusion, after hearing respondent nos.5, 6 & 7 to this petition, and, the petitioner, bearing in mind the findings returned by the learned District Judge, Jaunpur vide his report dated 30.07.2018 submitted in the present writ petition, all to be done within four weeks of receipt of a certified copy of this order.

26. The writ petition stands allowed in the above terms. Costs easy.

Order Date :- 29.10.2018

Anoop