Rajendra Prasad Singh vs The State Of Bihar, Through ...
2023 Latest Caselaw 5587 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Criminal Writ Jurisdiction Case No.1792 of 2023
                     Arising Out of PS. Case No.- Year-0 Thana- District- Patna
     ======================================================

1. Rajendra Prasad Singh Son of Late Dudheshwar Prasad Singh R/o Mohalla -

Rajbanshi Nagar, Road NO. 2 (Extension), Post Office - Shastri Nagar, P.S. - Shastri Nagar, Distt. - Patna

2. Rajiv Ranjan @ Raju Yadav Son of Rajendra Prasad Singh R/o Mohalla -

Rajbanshi Nagar, Road NO. 2 (Extension), Post Office - Shastri Nagar, P.S. - Shastri Nagar, Distt. - Patna

... ... Petitioners Versus

1. The State of Bihar, through Principal Secretary, Dep. of Lands Reforms and Revenue, Gov. of Bihar Patna

2. The Divisional Commissioner, Patna Division, Patna Bihar

3. The Collector Cum District Magistrate, Patna Bihar

4. The Additional Collector, Patna Bihar

5. The Sub-Divisional Magistrate, Patna Sadar, Patna Bihar

6. The Deputy Collector Land Reforms, Patna Sadar, Patna Bihar

7. The Circle Officer, Patna Sadar, Patna Bihar

8. S.H.O., Shastri Nagar Police Station, Patna Bihar

9. Kumar Anil Sinha @ Anil Yadav Son of Ramyati Singh @ Ramyati Yadav R/o Mohalla - Rajbanshi Nagar, Road No. 2 (Extension), P.O. - Shastri Nagar, P.S. - Shastri Nagar, Distt. - Patna, Presently Posted as Deputy Secretary, Dep. of Rural Work, Gov. of Bihar, Patna

10. Ramyati Singh @ Ramyati Yadav Son of Late Brahmdeo Singh R/o Mohalla

- Rajbanshi Nagar, Road No. 2 (Extension), P.O. - Shastri Nagar, P.S. - Shastri Nagar, Distt. - patna

... ... Respondents ====================================================== Appearance :

For the Petitioners : Mr. Helal Ahmad, Advocate For the State : Ms. Prakritita Sharma, AC to SC-25 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 08-11-2023

Heard Md. Helal Ahmad, learned counsel for the

petitioners and Ms. Prakritita Sharma, AC to SC-25 for the

State.

Patna High Court CR. WJC No.1792 of 2023 dt.08-11-2023

2. The petitioners in the present writ application are

questioning the order dated 07.02.2019 passed by learned

Sessions Judge, Patna in Criminal Revision No. 57 of 2019

whereby and whereunder the learned Sessions Judge has been

pleased to dismissed a challenge to the order dated 31.12.2018

passed by learned Sub-Divisional Magistrate, Patna Sadar in

Case No. 1767 (M) of 2015 in a proceeding under Section 133

of the Code of Criminal Procedure (hereinafter referred to as the

'CrPC').

3. The petitioners are further challenging the

consequential orders dated 06.05.2023, 04.09.2023 and

12.10.2023 as contained in Memo Nos. 3863, 7869 and 8835

respectively issued by the Circle Officer, Patna Sadar whereby

the petitioners have been directed to vacate their personal lands

left for passage which according to the petitioners is not a public

land.

Submissions on behalf of the Petitioners

4. In course of hearing, learned counsel for the

petitioners has taken this Court through the order dated

31.12.2018 as contained in Annexure 'P/8' to the writ

application. A reading of the order would show that the first

party of the case has filed an application under Section 133 Patna High Court CR. WJC No.1792 of 2023 dt.08-11-2023

CrPC alleging that the second party has encroached upon the

lands of Thana No. 7, Khata No. 308 Khesra No. 577

measuring area 8ft. in width and 65ft. in length for purpose of

road. The learned SDM heard both the parties and learned

counsel for the State and also called for a report from the Circle

Officer, Patna Sadar. In his order, the SDM has referred an

earlier order dated 19.11.2018 passed in case No. 182 (M) of

2016 in a proceeding under Section 147 CrPC. Ultimately, the

SDM, Patna Sadar has directed for measurement of the land

which were left for 'way' and a direction has been issued to get

measurement of the said area and remove the encroachment.

5. Learned counsel for the petitioners submits that

after passing of the order as contained in Annexure 'P/8', the

order dated 19.11.2018 passed by learned SDM, Patna Sadar in

Case No. 182 (M) of 2016 has been set aside by learned

Sessions Judge, Patna in Cr. Revision No. 10 of 2019 vide order

dated 18.01.2019 for the reason that a title suit is pending in

respect of the same land between the parties. The main

grievance of the petitioners is that while passing the impugned

order dated 31.12.2018, the learned SDM, Patna Sadar has

directed not only for measurement but also for removal of the

alleged encroachment. It is submitted that the order under Patna High Court CR. WJC No.1792 of 2023 dt.08-11-2023

Section 133 CrPC has not been passed in accordance with law.

6. Pointing out to Annexures 'P/2', 'P/3' and 'P/4' to

the writ application, learned counsel for the petitioners submits

that the Circle Officer called upon the petitioners to produce

their documents of title relating to the land in question and when

the petitioners did not participate in the said process before the

Circle Officer, he has issued Annexure 'P/5' directing the

petitioners to remove the encroachment from the land which

were left for way, failing which the encroachment will be

removed upon measurement of the said land.

Submission on behalf of the State

7. Learned counsel for the State submits that so far as

pendency of Title Suit is concerned, it would appear from

Annexure 'P/14' which is an order dated 01.10.2016 passed by

learned Sub-Judge VII, Patna in Title Suit No. 31 of 2013 that

one of the petitioners of this case is plaintiff in the said suit. It is

the case of the plaintiff that he had purchased the land from one

Nawal Kishore Singh in the year 2001 on the Link Road

towards West to East which is 10ft.×115ft. in size and his

grievance is that the defendants have blocked the Link Road

towards East to West and have constructed septic latrine tank

over the 10ft. wide Link Road and by such encroachment they Patna High Court CR. WJC No.1792 of 2023 dt.08-11-2023

have caused inconvenience to the persons having easementary

right over the Link Road. Learned counsel points out that the

subject matter of said suit is different and distinct.

8. It is further submitted that on perusal of Annexure

'P/8' it would appear that the SDM, Patna Sadar has heard both

the parties and called for a report from the Circle Officer and

only thereafter issued a direction to get the land measured of the

road/rasta and take steps for removal of encroachment. It is not

and cannot be said to be a final order and the learned Sessions

Judge, Patna has rightly observed in the impugned order passed

in Criminal Revision No. 57 of 2019 that the magistrate can

pass a preliminary conditional order and there is no bar in

passing preliminary conditional order. No illegality or infirmity

may be found at this stage.

9. It is further submitted that the petitioners are not

cooperating with the Circle Officer and despite several notices

given to them, they have not produced the documents so as to

get the measurement of the land done.

Consideration

10. Having heard learned counsel for the petitioners

and learned counsel for the State, this Court finds force in the

submission of learned counsel for the State. A bare perusal of Patna High Court CR. WJC No.1792 of 2023 dt.08-11-2023

the impugned order as contained in Annexure 'P/8' and

consequential orders from Annexure 'P/2' to Annexure 'P/4', it

appears that the SDM, Patna Sadar has presently passed a

conditional order which has not been interfered with by the

learned Sessions Judge, Patna. This Court has noticed the order

of the learned SDM, passed in the title suit as contained in

Annexure 'P/14' that in the said title suit, prima facie, the

subject matter of the suit is different and the plaintiffs who is

one of the petitioners before this Court is praying for a relief

which is different and distinct from the reliefs prayed in the

proceeding under Section 133 CrPC.

11. Section 133 CrPC falls under Chapter X dealing

with maintenance of public order and tranquility. It is under

Part B of Chapter X. Section 133 CrPC gets attracted in a case

where it is alleged that any unlawful obstruction and nuisance is

required to be removed from any public place or from any way,

river or channel which is or may be lawfully used by the public.

There are other circumstances in which Section 133 CrPC may

be attracted and those may be found from clause (a) to clause (f)

of Sub-Section (1) of Section 133 CrPC. The Magistrate under

this Section is empowered to make a conditional order requiring

the person causing such obstruction or nuisance, or carrying on Patna High Court CR. WJC No.1792 of 2023 dt.08-11-2023

such trade or occupation, or keeping any such goods or

merchandise, or owning, possessing or controlling such

building, tent, structure, substance, tank, well or excavation, or

owning or possessing such animal or tree, within a time to be

fixed in the order to remove such obstruction or nuisance. The

Magistrate may pass such other orders which are provided under

sub-clauses (i) to (vi) of clause (f) of Sub-Section (1) of Section

133 CrPC.

12. Section 137 CrPC provides the procedure where

existence of public right is denied. In such cases, the Magistrate

shall before proceeding under Section 138 inquire into the

matter.

13. Section 138 CrPC thereafter provides procedure

where a person against whom an order under Section 133 CrPC

is made appears and shows cause against the order, in such a

case, the Magistrate shall take evidence in the matter as in a

summons-case and on being 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 be, with such

modification. According to Sub-Section (3) of Section 138

CrPC, if the Magistrate is not satisfied, no further proceedings Patna High Court CR. WJC No.1792 of 2023 dt.08-11-2023

shall be taken in the case. For purpose of inquiry, under Section

137 CrPC or under Section 138 CrPC, the Magistrate is

empowered to direct local investigation and examination by an

expert. Section 141 CrPC further provides on order being made

absolute and consequences of disobedience.

14. This Court has taken note of the aforementioned

provisions in order to record that the petitioners in the present

case seem to have proceeded to challenge the order dated

31.12.2018 but did not apply for the remedy which were already

available under the aforementioned provisions. The conditional

order has yet not been made absolute and the petitioners could

have very well participated in the proceeding and requested the

learned Magistrate for conducting an inquiry. The petitioners did

not raise any objection on the grounds stated under Section 137

CrPC. At the same time, they did not participate before the

Circle Officer despite several notices issued to them vide

Annexures 'P/2' to 'P/4'.

15. In these circumstances, this Court finds no error in

the impugned orders and the memos.

16. This writ application, as framed, cannot proceed.

It is dismissed but with liberty to the petitioners to seek their

remedy in accordance with law.

Patna High Court CR. WJC No.1792 of 2023 dt.08-11-2023

17. If the petitioners apply for their remedy before the

learned SDM, Patna Sadar and/or any other authority in

accordance with law, the same shall be considered immediately

without being prejudice by this order.

18. The observations, if any, of this Court shall not be

taken as an opinion of this Court on the merit of the lis.

(Rajeev Ranjan Prasad, J) SUSHMA2/-

AFR/NAFR
CAV DATE
Uploading Date             10.11.2023
Transmission Date