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2003 DIGILAW 329 (RAJ)

Hardeva Ram v. State of Rajasthan

2003-03-02

A.C.GOYAL

body2003
JUDGMENT : 1. This petition under Section 482 Cr.RC. is directed against the impugned order dated 31/1/2003 whereby the learned Additional Sessions Judge No. 2, Sikar set aside the order dated 24/1/2003 by which the learned S.D.M., Sikar in proceedings under Section 133 and 142 Cr.RC. ordered the respondents No. 2 to 4 and others for removal of obstruction from pubic way situated in Khasara No. 261 of village Badalwas within a period of seven days. 2. The relevant facts in brief are that the petitioner Hardeva Ram and his brother Rameshwar filed a complaint under Section 133 Cr.RC. against the respondent No. 2 to 4 and other brothers of the respondents with the averments that the members of both the parties are residents of village Badalwas. All of them have agricultural land as also residential houses. A portion of land 0.05 hectors of Khasara No. 261 happens to be uncuitivabie land as it is a public way for the last more than 50 years. The respondents and others had obstructed the said public way by encroaching the same and showing it to be an integral portion of their land in Khasara No. 262 abutting Khasara No. 261. It has caused tremendous inconvenience to all the villagers leading to unrest, causing apprehension of breach of peace and tranquillity in the village. An application under Section 142 Cr.RC. was also moved praying for an immediate relief keeping in view the emergent situation. 3. Learned S.D.M. passed an order under Section 133 Cr.RC. requiring the opposite party to remove the said encroachment on the public way. The opposite party filed their reply. Learned S.D.M. proceeded to initiate inquiry under Section 137 Cr.RC. and he visited this spot and prepared a report as also a site plan making a prima facie opinion that the said public way did exist and the same was obstructed by the opposite party by encroaching it. Subsequently, the learned S.D.M. passed the order dated 24/1/2003 under Section 142 Cr.RC. 4. The respondents No. 2 to 4 filed a criminal revision against the order dated 24/1/2003. Learned Additional Sessions Judge No. 2, Sikar vide impugned order set aside the order of S.D.M. passed on 24/1/2003. Hence this petition under Section 482 Cr.RC. 5. First contention raised by learned counsel for the petitioner is that the inquiry under Section 137 Cr.PC. 4. The respondents No. 2 to 4 filed a criminal revision against the order dated 24/1/2003. Learned Additional Sessions Judge No. 2, Sikar vide impugned order set aside the order of S.D.M. passed on 24/1/2003. Hence this petition under Section 482 Cr.RC. 5. First contention raised by learned counsel for the petitioner is that the inquiry under Section 137 Cr.PC. is still pending and the order under Section 142 Cr.RC. was an interim order, hence revision under Section 397 (2) Cr.PC. was not maintainable. This contention finds support from the judgment of this Court delivered in Mohammed Rafiq v. State of Rajasthan, 1985 R.L.W.  208 . Per contra learned counsel for respondent No. 2 to 4 contended that the order asking the respondents to remove the encroachment within a period of seven days was not an interim order, as legal rights of the respondents No. 2 to 4 were adversely affected. 6. I have considered the rival submissions Since this Court has ample power to entertain such matters under Section 482 Cr.RC., it seems to be not necessary to decide this controversy in the present case as to whether the order of S.D.M., passed on 24/1/2003 was an interim order or not. 7. On merits, learned counsel for the accused petitioner contended that the S.D.M. himself visited the site and came to this conclusion that public way did exist and the same was encroached upon and to prevent imminent danger or injury of serious kind, immediate measures were required under Section 142 Cr.RC., hence the order dated 24/1/2003 was legally justified. According to learned counsel revenue suit for declaration filed on behalf of the respondents No. 2 to 4 was not maintainable for Khatedari right on the land which forms the part of the public way. Reliance is placed upon Nizamuddin v. The Board of Revenue & Ors., R.R.D. 1991 451 . No doubt, Khatedari right cannot be confirmed on the land forming part of the public way, but according to learned counsel for the respondents No. 2 to 4 revenue suit filed by the respondents was not for declaration of any Khatedari right, rather no public way existed on the disputed land and it was wrongfully entered in revenue record as public way and the revenue suit was filed only for making correction in the revenue record. It was also submitted by learned counsel for the petitioner that pendency of civil suit is no bar to initiate the proceedings under Section 133 and 142 Cr.RC. Reliance is placed upon Qamar Bahan v. State of U.R. It is correct to say that mere pendency of the revenue suit cannot operate as a bar to initiate the proceedings under Section 133 Cr.RC. A revenue suit between the parties was already pending with regard to Khasara No. 261. The Commissioner appointed by the Court inspected the disputed land and submitted his report that no public way exists in between Khasara No. 261 and 262. Thereafter, Assistant Collector, Sikar vide the order dated 22/5/2002, restraining the petitioner to maintain status-quo. This order was upheld in appeal by Revenue Appellate Authority vide order dated 22/5/2002 and Board of Revenue air o vide order dated 27/6/2002 ordered to both the parties to maintain status quo. Thus the Revenue Courts had already passed the orders with regard to land in question and learned A.C.M. prima facie came to this finding that no public way exists at the spot. Prior to that Tehsildar, Sikar also inspected the site in proceedings under Section 91 and 92 of the Rajasthan Land Revenue Act and came to this finding that no public way exists there. It was observed by learned Additional Sessions Judge that no emergent situation had arisen as provided under Section 142 Cr.RC. as this matter was pending for about a period of one year even in the Court of learned S.D.M. Section 142 (1) Cr.RC. provides that if a Magistrate making an order under Section 133 Cr.RC. considers that immediate measures should be taken to prevent imminent danger or injury of serious kind to the public, he may issue such an injunction to the person against whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of the matter. Keeping in view the entire discussion made hereinabove the necessary ingredients to pass an order under Section 142 Cr.RC. were not made out and thus I find no infirmity or illegality in the impugned order. 8. Consequently, this petition along with the application hereby dismissed. .Petition dismissed.