Tutu Sethi And Others vs Indu Bhusan Acharya And Another
2023 Latest Caselaw 955 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK
                      CRLMC No.1758 of 2010

  Tutu Sethi and Others                       ....              Petitioners
                                             Mr. U.C. Pattnaik, Advocate


                                  -Versus-


  Indu Bhusan Acharya and Another     ....        Opposite Parties
                           Mr. S.S. Mohapatra, ASC for O.P.No.2
                 Miss Deepali Mohapatra, Advocate for O.P. No. 1


            CORAM:
            JUSTICE R.K. PATTANAIK

               DATE OF JUDGMENT:30.01.2023

1.

Instant petition under Section 482 Cr.P.C. is filed by the petitioners assailing the correctness of the impugned order dated 23rd February, 2010 passed in Criminal Misc. Case No. 273 of 2008 by the learned Additional DCP-cum-Executive Magistrate, Cuttack (shortly as 'the EM') on the grounds inter alia that the same is palpably wrong, illegal and without jurisdiction in absence of satisfaction as to existence of any apprehension of breach of peace and when determination of rights of the parties h is within the domain of a civil court and alien to the proceeding set in motion under Section 144 Cr.P.C. and hence, it is liable to be quashed in the interest of justice.

2. As it appears from record, opposite party No.1 as 1st party approached the learned EM over the subject matter in dispute with the claim that it has been used as a passage contrary to the stand of the petitioners-2nd party in connection with a proceeding under Section 147 Cr.P.C. which finally resulted in passing of the

Tutu Sethi and Others Vrs. Indu Bhusan Acharya and Another

impugned order dated 23rd February, 2010, whereby, the plea of opposite party No.1 was accepted with a conclusion that both parties are using the same as pathway or road and consequently, restrained the petitioners from raising any construction thereover and to remove the obstruction which was raised on it.

3. Heard Mr. Pattnaik, learned counsel for the petitioners, Ms. Mohapatra, learned counsel for opposite party No.1 besides Mr. Mohapatra, learned counsel for the State-opposite party No.2.

4. Mr. Pattnaik, learned counsel for the petitioners submits that the plot in question is the homestead land of the petitioners, whereas, the public road is used by the other side to approach the club house and hence, there is no necessity to use the land as a passage for which the learned court below ought not to have decided vis-à-vis such a right in favour of opposite party No.1 and that too when there was no any apprehension of breach of peace which is the major ingredient in a proceeding under Section 147 Cr.P.C. It is contended that there was no satisfaction reached at by the learned EM regarding existence of any such breach of peace and he furthermore proceeded to adjudicate the rights of the parties like a civil court which is not permitted in law. While advancing such an argument, Mr. Pattnaik, learned counsel for the petitioners cited an authority reported in 94(2002) CLT 780.

5. On the contrary, Ms. Mohapatra, learned counsel for opposite party No.1 submitted that the learned court below did not err or commit any wrong or illegality in passing the impugned order under Annexure-3 morefully after having received evidence, oral as well as documentary, besides a report from the IIC, Bidanasi P.S. and consequently, prohibited to raise any construction over the case land and to remove the alleged obstruction immediately. Mr. Mohapatra, learned counsel for the State followed the

Tutu Sethi and Others Vrs. Indu Bhusan Acharya and Another

argument of Ms. Mohapatra to contend that the impugned order dated 23rd February, 2010 cannot be faulted with on any such ground so raised by the petitioners.

6. Normally a proceeding under Section 145 Cr.P.C. is initiated when dispute concerning land is likely to cause breach of peace and in such a proceeding without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute on receipt of all such evidence as may be produced shall decide whether any and which of the party was in possession at the date of order made under sub-section (1) thereof. Since the present case is related to a dispute vis-à-vis right of use of the land in question as a passage, a proceeding under Section 147 Cr.P.C. was, thus, initiated.

7. The object and scope of 147 Cr.P.C. is intended to provide speedy remedy for prevention of breach of peace arising out of a dispute relating to immovable property. The purpose is to enable a Magistrate to intervene and pass appropriate order over the rival claims to the right of easement until the actual rights of the parties are determined by a competent civil court. Section 147 Cr.P.C. stipulates that whenever an Executive Magistrate is satisfied from a report of police officer or upon other information that a dispute likely to cause breach of peace over any alleged right of user of land or water, he shall make an order in writing requiring the parties to submit their respective claims and on receiving evidence, if possible, to decide whether such rights exist and for the said purpose, an enquiry to be conducted. It is basically a power conferred on the EM to meet an emergent situation to prevent breach of peace existing over a dispute concerning right of use of land or water. For a limited purpose, such determination as to the rights of the parties is to be made by

Tutu Sethi and Others Vrs. Indu Bhusan Acharya and Another

the EM, the intent and purpose being to avoid breach of peace. The actual rights of the parties or any such right of easement or otherwise shall have to be determined by a civil court and not by the EM, whose sole responsibility is to prevent breach of peace and for a limited purpose to examine the rival claims of the parties and pass necessary orders even by preventing construction or removal structure raised over the land in dispute. Mr. Pattnaik, learned counsel for the petitioners relied on decision (supra), by contending that this Court had expressed a similar view regarding the powers of an EM in a proceeding under Section 147 Cr.P.C. purposefully with the principal objective to avoid or prevent breach of peace and not to determine and adjudicate upon the rights of the parties like a civil court.

8. In the instant case, there appears to be a dispute as opposite party No.1-club claimed the land being used as a passage or road which is denied by the petitioners due to the existence of alternate way of access. The learned court below received oral and documentary evidence and receiving a report of the local P.S. and reached at a conclusion that opposite party No.1 established their rights over the case land as some of the witnesses of the petitioners admitted the same during examination that the case land to be a path way. The impugned order dated 23rd February, 2010 is apparently based on the evidence vis-a-vis the rights of the parties without any reference as to if for the alleged dispute there was any breach of peace in existence. Though, it is made to appear that a report was called for from the IIC, Bidanasi P.S. but it was basically an adjudication over the rights of the parties vis-a- vis case land claimed to be used as a road or path way. It is not a proceeding to decide the rights of the parties but to hold on to such a question and adjudicate it provided a breach of peace is likely to take place or exists. In absence of any such trace of

Tutu Sethi and Others Vrs. Indu Bhusan Acharya and Another

evidence regarding breach of peace, it is no duty of an EM to decide and determine the rights of the parties which lies exclusively within the domain of a civil court. The primary and predominant role is for preventing breach of peace and for that purpose, the EM is required to undertake an exercise and with the limitations prescribed to examine the rival claims and not to decide the actual rights for which the parties have to approach and knock the doors of a civil court.

9. The impugned order under Annexure-3 does not deal with any such aspect of breach of peace. There is no discussion with regard to the report of the local P.S. which anticipated any such untoward incident affecting or disturbing peace of the locality on account of such a dispute between the parties. The learned EM was required to satisfy himself about existence of breach of peace and what was the report of the local P.S. or whether he received any such information that breach of peace is imminent is not discernable from Annexure-3. It has to be conspicuous enough to show that there was a breach of peace in fact as also reported by the local police or ascertained after enquiry and in that regard, the parties had been summoned to submit their viewpoint for a decision on the right of path way only for a limited purpose and as an interim measure till the time their actual rights are decided by a civil court. Annexure-3 does not reveal anything as to what prompted the learned Executive Magistrate to initiate the proceeding under Section 147 Cr.P.C. and whether it was on account of impending danger to peace in the locality. As it seems, the learned court below assumed the role like a civil court but yet decided the rights without any satisfaction about existence of any apprehension as to breach of peace being reached at which was his primary duty and responsibility. Furthermore, the decision is based on no analysis of the entire of the materials assigning

Tutu Sethi and Others Vrs. Indu Bhusan Acharya and Another

reasons as to why and what for the claim of one of the parties deserved acceptance over the other and morefully as against backdrop of previous encounter in Criminal Misc. Case No.1123 of 1992 which was initiated when the Club had stalked materials over the case land but later on resolved the dispute admitting them of having no any intention to encroach upon it and filed an affidavit in that behalf as made to reveal from the order dated 27th February, 1993 of the EM, a copy of which made available to the Court along with an affidavit dated 22nd February, 1993 filed from the side of the Club. The entire exercise as it appears was as if directed to determine the actual rights of parties without any finding and decision on the issue of breach of peace and hence, in the considered view of the Court, the impugned order under Annexure-3 is susceptible and liable to be interfered with and quashed.

10. Accordingly, it is ordered.

11. In the result, the CRLMC stands allowed. As a necessary corollary, the impugned order dated 23rd February, 2010 passed in Criminal Misc. Case No. 273 of 2008 by the learned Additional DCP-cum-Executive Magistrate, Cuttack is hereby quashed for the reasons discussed herein above.

(R.K. Pattanaik) Judge

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