Research › Search › Judgment

Orissa High Court · body

2003 DIGILAW 322 (ORI)

JADUNATH NAYAK v. SUB-COLLECTOR, BHADRAK

2003-04-25

L.MOHAPATRA

body2003
L. MOHAPATRA, J. ( 1 ) THIS application under Section 482 of the Code of Criminal Procedure is directed against the order dated 20-8-2001 passed by the S. D. M. Bhadrak in Cri. Misc. Case No. 5 of 1997 under Section 133 of the Cr. P. C. confirmed in Criminal Revision No. 61 of 2001 filed before the learned Additional Sessions Judge, Bhadrak. ( 2 ) FROM the records it appears that a proceeding was initiated on 2-12-1997 basing on the petition of the opposite parties 2 to 5 who were first party members on the allegation that they have no other way except the case land to go to the temple "maa Mangala Grama Debati" which is situated to the north-eastern side of the first party's residence. It was further contended before the learned S. D. M. that the case land was part of the public pathway in the revision settlement but in the C. S. Map it has been wrongly amalgamated with the homestead land of petition (sic) of 2nd party member 1 and 3 and their elder brother Bhima Das and the second party members started construction of a thatched house on the case land in violation of the order passed in a proceeding under Section 144, Cr. P. C. An enquiry was directed to be conducted by the Tahsildar, Bhadrak and on the basis of the report of the Tahsildar as well as documents placed before that Court and spot enquiry report, an order was passed to remove the thatched house. The second party members being aggrieved with the above order passed by the S. D. M. preferred a revision before the learned Additional District and Sessions Judge, Bhadrak in Criminal Revision No. 1 of 1999 and vide judgment dated 30-1-1999 the Addl. District and Sessions Judge remanded the matter to the S. D. M. directing him to take evidence of the parties and dispose of the case afresh. After receipt of the records on remand, the parties were directed to appear and adduce evidence in respect of their respective claims and the Tahasildar, Bhadrak was directed to make spot enquiry personally and submit report. Pursuant to such orders passed by the learned S. D. M. , some witnesses were examined by the first party but the second party did not adduce any evidence. Pursuant to such orders passed by the learned S. D. M. , some witnesses were examined by the first party but the second party did not adduce any evidence. On perusal of the materials collected after closure of evidence, the learned S. D. M. again directed the second party members to remove construction/encroachment and clear the pathway vide order dated 20-8-2001. Said order was challenged again in revision by the second party member before the learned Addl. District and Sessions Judge, Bhadrak in Criminal Revision No. 61 of 2001 and the said revision having been dismissed, the present application has been filed. ( 3 ) SHRI Mohapatra, learned counsel for the petitioner submitted that the Record-of-Right in Annexure 1 describes the petitioner as one of the owners with stithiban status in respect of homestead plot Nos. 2247, 2248 and 2249. He further submitted that the S. D. M. as well as the learned Addl. Sessions Judge proceeded as if they are required to decide the question of title in a proceeding under Section 133, Cr. P. C. and therefore the impugned orders are liable to be quashed. According to Sri Mohapatra question of title cannot be decided in criminal proceeding by Magistrate and the matter should be decided by a competent Civil Court. Learned S. D. M. having proceeded to decide the question of title, the order is not sustainable. Shri Jena, learned counsel for the first-party-opposite parties, on the other hand, submitted that in view of the allegations made by the first party members that the second party was constructing a thatched house on the pathway used by the first party members to go the temple unlawfully and that the nuisance should be removed from the public place, the proceeding was rightly initiated under Section 133 of the Cr. P. C. and on consideration of materials placed before the learned Magistrate order was passed. ( 4 ) FROM the records placed before this Court, it appears that in the R. O. S. (Annexure 1) the following endorsement has been made in the remarks column. "to the eastern side of this plot Bhima Das, Rama Das and Narayan Das, sons of Pury Das, caste-Khandayat, village-Nijagaon, had right to freely move and use as passage. "when the parties were directed to adduce evidence in support of their respective claims the first party members examined some witnesses and the P. Ws. "to the eastern side of this plot Bhima Das, Rama Das and Narayan Das, sons of Pury Das, caste-Khandayat, village-Nijagaon, had right to freely move and use as passage. "when the parties were directed to adduce evidence in support of their respective claims the first party members examined some witnesses and the P. Ws. 1, 2 and 3 examined on behalf of the first party members stated that there was pathway over the disputed M. S. plot and the villagers used to go through it to the temple which is situated in the north-eastern side of the first party residence and the first party members used to go to the main road from their house in this pathway as well as the villagers. From such evidence of the aforesaid witnesses it appears that the pathway covers 40 links in length and 20 links in breadth but the same has been obstructed by second party members by constructing a thatched house. From the order-sheet of the learned Magistrate it appears that the second party members did not adduce any evidence and on the basis of the evidence adduced on behalf of the first party as well as records submitted before the learned S. D. M. , the impugned order was passed directing the second party members to remove the unlawful construction/encroachment and clear the pathway. Learned Addl. District and Sessions Judge in his judgment has taken note of these facts and has confirmed the order of the learned S. D. M. Reliance was placed by Sri Mohapatra, learned counsel for the petitioner on a decision of this Court in the case of Purnamasi Kar v. Purandar Kar, reported in (1978) 45 Cut LT 288. This Court in the aforesaid decision held that the moment question of title is required to be decided, the Magistrate in a proceeding under Section 133, Cr. P. C. has to refer the matter to a Civil Court. There cannot be any dispute about such proposition of law. This Court in the aforesaid decision held that the moment question of title is required to be decided, the Magistrate in a proceeding under Section 133, Cr. P. C. has to refer the matter to a Civil Court. There cannot be any dispute about such proposition of law. So far as the present case is concerned as observed earlier the disputed land was being used as pathway by the first party as revealed from the remarks column of the R. O. R. and evidence has been led before the learned Magistrate in support of the same, and further, evidence has also been led to prove that the second party members have obstructed pathway by making a thatched house. The question to be decided before the learned Magistrate was whether by making such construction in a public road, people have been affected or not. The learned S. D. M. in his order has clearly held that the right of first party members and other villagers to use pathway to go to the temple as well as to the main road has been affected because of such construction by the second party members and accordingly directed for removal of the same. I do not find as to how the said order of the learned S. D. M. runs contrary to the observation made by this Court in the aforesaid decision. Another decision relied on by the learned counsel for the petitioner is the case of Shyam Khatua v. Biswanath Panda, reported in (2002) 1 OLR 126 . In the said decision, this Court observed that in a proceeding under Section 133, Cr. P. C. the order could not have been passed solely on the report submitted by the officer-in-charge of police station or the documents made available to the learned Magistrate without holding any enquiry as envisaged under law. There cannot be any dispute that an enquiry has been held by the learned Magistrate in this case and the parties were directed to adduce evidence in support of their respective claims. The first party members adduced evidence, whereas the second party members chose not to adduce any evidence and therefore no fault can be found with the learned S. D. M. in considering the evidence led before it and decide the case in favour of the first party. The first party members adduced evidence, whereas the second party members chose not to adduce any evidence and therefore no fault can be found with the learned S. D. M. in considering the evidence led before it and decide the case in favour of the first party. ( 5 ) IN view of the discussions made above, I do not find any merit in the application and the same stands dismissed. Application dismissed.