Mahesh Dutt vs State Of Uttarakhand & Others
2023 Latest Caselaw 1868 UK

HIGH COURT OF UTTARAKHAND AT NAINITAL
      Criminal Misc. Application No.1270 of 2022
            (Under Section 482 of the Cr.P.C)

Mahesh Dutt                                   ........Applicant

                            Versus

State of Uttarakhand & others            ........Respondents

Present:-
      Mr. Piyush Garg, learned counsel along with Mr. Pulak
      Agrawal, learned counsel for the applicant.
      Mr. K.S. Rawal, learned A.G.A. for the State.
      Mr. H.O. Bhakuni, learned counsel for respondent nos.2, 3 &
      4.


Hon'ble Pankaj Purohit, J. (Oral)

By means of the present C482 application, applicant has challenged the order dated 29.04.2022, passed by learned Sub Divisional Magistrate Nainital in Case No.11/06 of 2021, State vs. Mahesh Dutt, under Section 145 Cr.P.C. A challenge has further been laid to the judgment and order dated 27.06.2022 passed by learned Sessions Judge, Nainital in Criminal Revision No.64 of 2022, Mahesh Dutt vs. State & others, whereby judgment and order passed by learned Sub Divisional Magistrate was affirmed.

2. Heard learned counsel for the parties.

3. The facts of the case as culled out from the pleading of parties are that the wife of applicant-Smt. Renu Dutt purchased some piece of land through sale deeds dated 12.12.2012, 14.03.2013, and 25.07.2018 in Plot Nos.523, 531 & 532 of Khatauni Khata No.225 of Village Pandeygaon, Bhimtal, District Nainital. Herein the dispute which culminated into filing of this application to the parties is with regard to the piece of land measuring

12 feet x 28 mts., which passes through Plot No.522 of Khatoni Khata No.225. An application was moved by the private respondents to the S.D.M. Nainital, District Nainital on the basis of which Sub-Inspector Rajesh Mishra, Police Station Bhimtal, District Nainital submitted a challani report dated 25.09.2021 to the S.D.M. Nainital. In the said report, it has been mentioned by police authority that the applicant-Mahesh Dutt, S/o Shyam Manohar has raised boundary wall over the aforesaid land and installed a gate and due to that reason, there was some dispute between both the parties i.e. applicant and the private respondents.

4. By the said challani report, Sub-Inspector Police Station Bhimtal, District Nainital requested the learned S.D.M. Nainital to decide the "title" of land in dispute calling upon them under Section 145 of Cr.P.C.

5. On the basis of the aforesaid challani report dated 25.09.2021, learned S.D.M. passed a preliminary order under Section 145 (1) of Cr.P.C. calling upon the applicant to appear before the court on 24.12.2021, and to submit his written statement regarding possession in respect of the house. (There was no dispute in respect of the house of the applicant).

6. The notice which was issued by learned Magistrate under Section 145 (1) of Cr.P.C., though was not part of the record but at the time of hearing, the same was handed over to this Court, which is being taken on record. Pursuant to the aforesaid notice, private respondents submitted their written statement annexure- 2 to the instant C-482 application detailing wherein the dispute between the parties. It is reflected from the

written statement dated 24.12.2021 submitted by private respondents that the dispute was not with regard to any house, as indicated in the preliminary notice issued under Section 145 (1) of Cr.P.C., but it was in respect of pathway which is situated at Plot No.522. In the written statement, it is submitted by private respondents that the the applicant and his wife installed a gate on the pathway and obstructed ingress and egress of the respondents and others from that pathway.

7. In para 4 of the written statement, it is stated that in the year 2020, applicant started obstruction by encroaching upon the aforesaid land, installing his personal gate on the pathway, to which, on 02.11.2020, a notice was issued by learned Magistrate, and a report was called for, from the Executive Engineer of the Lake Development Authority, Nainital as well as Tehsildar Nainital, and it was proposed to pass orders under Section 133 Cr.P.C. against them. It is specifically submitted in their written statement that no property or land has ever been sold by the private respondents to Smt. Renu Dutt- wife of applicant. A reference is made in para 5 of the written statement that again, in the month of February, 2021, the private respondents and their family members moved an application stating that the encroachment and obstruction raised by the applicant was not being removed by the applicant despite making repeated requests by them to remove the obstruction.

8. It is also pleaded by the private respondents that the disputed pathway has long been used by the local residents, the owner and the purchaser of the land and accordingly, the obstruction should be removed.

9. In para 10 of the written statement, it has been stated that if such order would not be passed, it may cause breach of peace.

10. The applicant though served with a preliminary notice issued by learned Magistrate and also put appearance before the court, but he could not file his written statement, and the request for filing the written statement was turned down later on by the learned Magistrate vide order dated 08.04.2022 and the matter was fixed for the orders.

11. The learned Magistrate vide impugned order dated 29.04.2022 directed the applicant to remove the obstruction raised by him on 14.05.2022 over Plot No.522 and to file an affidavit to this effect by 20.05.2022 at 11:00 a.m. in the court of learned Magistrate to this effect that obstruction raised was removed by him.

12. Feeling aggrieved by the aforesaid impugned order dated 29.04.2022, a Criminal Revision No.64 of 2022, Mahesh Dutt vs. State & others, was filed in the court of learned District & Sessions Judge, Nainital. In the revision-petition, the main ground, which has been raised by the applicant, was that the pathway, which was constructed over Plot No.522 was never a public path; the private respondents have concealed this fact from the court, and the learned Magistrate, while exercising its jurisdiction under Section 145 of Cr.P.C., cannot pass such an order. The learned Sessions Judge after considering the arguments raised on behalf of the parties and going through the record of the case, reached to the conclusion that fencing and gate was installed by the applicant on Plot No.522 of Khatauni Khata No.205, while

he is the owner of the property situated in Plot No.523 and thus, he has got no right to raise fencing and installing the gate over the land of Plot No.522 which is a public pathway.

13. The learned Sessions Judge refuted the arguments raised on behalf of the applicant that under the provisions of Section 145 Cr.P.C., no such order for removal of obstruction from a public way can be passed and for that, there is separate provision for removal of the public nuisances in Chapter X of the Cr.P.C., and that order can only be passed in proceedings under Section 133 of the Cr.P.C. The learned Judge observed that this is a simple pen mistake and the error of proceedings, the benefit of which cannot be extended to the applicant and accordingly, the criminal revision was rejected and the order dated 29.04.2022 passed by learned Magistrate in Criminal Case No.11/06 of 2021 was maintained, and further the applicant was directed to remove the obstruction and construction raised by him over Plot No.522, otherwise, the learned Magistrate has got every right to remove this obstruction. Being aggrieved by these two orders, applicant-Mahesh Dutt is before this Court as stated above.

14. It is strenuously argued by learned counsel for the applicant that both, the Trial Court as well as the Revisional Court exceeded their jurisdiction and the provisions of law have not been properly appreciated by them. It is further submitted that under the Scheme of Cr.P.C., removal of public nuisance over the public path can only be done under the provisions of the Chapter X of the Cr.P.C. and for that, a detail procedure is given as to

how the public nuisance can be removed from the public places under Section 133 Cr.P.C.

15. In addition to this, it has also been argued by learned counsel for the applicant that even if, for the time being, if it is admitted that such power could have been exercised by the Magistrate under Section 145 of Cr.P.C., the learned Magistrate, in fact, again fell into error of law while passing the impugned order directing removal of obstruction, for the reason that before doing so, the Magistrate did not come to the conclusion as to which of the parties was in possession of that piece of land two months prior of the date of passing of the preliminary order under Section 145 (1) of Cr.P.C.

16. It is further submitted that learned Magistrate has exceeded its jurisdiction while passing the impugned order, which was wrongly affirmed by the Revisional Court for the reason that the Magistrate, while exercising under Section 145 of Cr.P.C. jurisdiction, was only confined to give his opinion regarding the possession, and not the rights of the parties. He also submitted that from the entire record, it is not reflected that such kind of dispute was leading to any breach of peace between the parties.

17. Per contra, learned counsel for the private respondents supported the judgment passed by learned Magistrate as well as by the learned Revisional Court, and vehemently argued that under the provisions of Section 145 Cr.P.C., the learned Magistrate has got the power for removal of encroachment/obstruction from the land. In order to buttress his arguments, he has placed reliance upon a Full Bench decision of Hon'ble Allahabad High

Court AIR 1951 Allahabad 238 (FB), Abdul Wahab Khan vs. Mohd. Hamid Ullah.

18. On the strength of the aforesaid case law, it has been submitted by learned counsel for the private respondents that the learned Magistrate was within his powers while directing to remove the construction/obstruction while exercising his power under Section 147 of Cr.P.C. He took me to the various paragraphs of the judgment relied upon by him. I have gone through the judgment of the Full Bench. From the reading of the Full Bench decision, which is being relied upon by the private respondents, there is no manner of doubt in the mind of this Court that such order for removal of the obstruction can be passed by the learned Magistrate, but that can only be done in case where the party was found in possession immediately two months prior to the date of issuance of preliminary order. Here in the case in hand, no such conclusion was recorded.

19. The Hon'ble Allahabad High Court in the Full Bench has even went on to express that such power can only be exercised by the Magistrate only to remove the temporary nature of construction. The rights of the parties can only be determined finally by the court of competent jurisdiction and further it is also noted in the aforesaid judgment in para 36 that "where constructions of a costly nature have been made, for instance, a whole house has been constructed and not merely a wall, the Magistrate would be well advised not to exercise his powers under Section 147 but to leave the parties to seek their remedy in a civil court."

20. It has further been submitted by learned counsel for the private respondents that applicant has challenged the order impugned in the present C482 application, which according to him, is a second revision in disguise of C-482 application.

21. Having heard the learned counsel for the parties and having gone through the material on record, I am of the considered view that there is no doubt that learned Magistrate passed the order of removal of the obstruction from the Plot No.522 without ascertaining the possession of the parties, and this is, surely, nothing but exceeding the conferred jurisdiction. The learned Sessions Judge while affirming the order also fell into error of law as well as fact while observing that the removal of obstruction from the disputed pathway was from a public path, and the applicant cannot get benefit of the pen mistake or the mistake of procedure committed by the learned Magistrate while passing the order impugned.

22. From the Scheme of Cr.P.C., there is no doubt that these are the preventive measures incorporated under the Code of Criminal Procedure to maintain the public peace, and the powers have been given to the Executive Magistrate under Chapter X for maintenance of public order and tranquillity. There is a complete procedure prescribed under Sections 133 to 143 of Cr.P.C. viz. public nuisances, as to how nuisance is to be removed from the public places. Section 133(1) of Cr.P.C. enumerates the situation where this power can be invoked by the Magistrate in order to maintain the peace and tranquillity. Likewise, under Section 145 of Cr.P.C., powers have been given upon the Magistrate for deciding

the dispute(s) regarding possession of immovable property which may result into breach of peace between the parties. Therefore, the observation made by the learned Sessions Judge that it is a pen mistake and/or the mistake of procedure, is totally uncalled for and are strongly discarded by this Court.

23. From the pleadings of parties, it is an admitted fact that the pathway, which was situated over Plot No.522, was never a public way. Rather, according to the case of the applicant, it was a pathway constructed over Plot No.522 on the acquiescence of the private respondents. Even from the written statement filed by the private respondents, it is reflected that construction/fencing and installation of gate was done in 2020, much before the notice issued under Section 145 (1) of Cr.P.C.

24. Today, the parties were directed to remain present before the Court and the private respondent-Hem Pandey admits that the applicant was permitted to use that path was on making payment of some money, part of which was paid in cash, and part of which was paid through cheque. By way of this admission, it also makes this point clear that the pathway was not a public way as wrongly indicated by the Magistrate as well as by the Revisional Court.

25. So far as the argument advanced by the learned counsel for the private respondents is concerned that this is a second revision of the applicant in the garb of C482 application, this Court is of the view that the powers, so conferred under Section 482 of Cr.P.C. upon this Court are the inherent powers empowering this Court

to invoke the provisions of Section 482 of the Cr.P.C. in order to prevent the abuse of process of law besides securing the ends of justice. Therefore, in the opinion of this Court, this inherent power cannot be circumvented by simply stating that it amounts to a second revision by the same person who lost at the first place before the learned Sessions Judge. This view of this Court finds support from the reported judgments of the Hon'ble Supreme Court in the case of Krishnan and another vs. Krishnaveni and another; reported in (1997) 4 SCC 241 and recently in the judgment of Jitender Kumar Jain vs. State of Delhi & others; reported in (1998) 8 SCC 770. Thus, this Court is of the firm view that the argument which has been advanced by the learned counsel for the private respondents cannot be sustained and the same is liable to be rejected.

26. There is one more aspect of the matter. The genesis of the entire proceedings itself is illegal for the reason that the preliminary notice issued under Section 145 (1) of Cr.P.C. is a defective one. Under the provisions of Cr.P.C., Form 25 has been appended to Schedule II of the Cr.P.C., which prescribes as to how and in what manner the preliminary notice should have been sent and what its contents should be.

27. During the course of arguments, from the notice which has been brought on record by the applicant, it is reflected that instead of both the parties, only the first party i.e. applicant was directed to submit his written statement and evidence regarding the actual possession of the "described house". This further reflects non application of mind on the part of Magistrate.

According to the challani report, the dispute between the parties was regarding a pathway and not regarding any house.

28. From the aforesaid discussions, there is no manner of doubt in the mind of this Court that the impugned order passed by the learned Magistrate was not only against the provisions of Section 145 of Cr.P.C., but initiation of proceedings itself on the notice was defective.

29. In this view of the matter, I found substance in the argument advanced on behalf of the applicant and accordingly, the C482 application is liable to be allowed and is accordingly allowed. As a result, the order dated 29.04.2022, passed by learned Sub Divisional Magistrate Nainital in Case No.11/06 of 2021, State vs. Mahesh Dutt, under Section 145 Cr.P.C. and the judgment and order dated 27.06.2022 passed by learned District & Sessions Judge, Nainital in Criminal Revision No.64 of 2022, Mahesh Dutt vs. State & others, are hereby quashed.

30. Before concluding, it is observed that the parties would be free to settle their dispute(s) by filing a regular civil suit in the court of competent jurisdiction.

(Pankaj Purohit, J.) 20.07.2023 AK