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2004 DIGILAW 549 (ORI)

Surendra Kumar Patra v. Kanduri Bhatta

2004-12-21

R.N.BISWAL

body2004
JUDGMENT R. N. BISWAL, J. — The order dated 16.10.2004 passed by the Executive Magistrate, Puri in Criminal Misc. case No.439 of 2004 arising out of a proceeding U/s. 144 Cr.P.C. wherein he directed the S.D.O., CESCO, Puri Division-II (2nd party No.1) to restore power supply to the 2nd party No.2 keeping in view the decision of C.D. case No.166 of 2004 and avoiding the disputed plot Nos.285, 286 and 287 is under challenge by the 2nd party No.2 in this revision. 2. The present petitioner was the 2nd party No.2 while Opp.Party Nos.1 to 3 were the 1st party and O.P. No.4, the S.D.O., CESCO, Puri Division No.II at Red Cross Road was the 2nd party No.1 before the Court below in Crl. Misc. case No.439 of 2004. 3. As per the case of the 1st party the disputed property as described in Schedule A and B of the petition under Section 144 Cr.P.C. originally belonged to Radha Mohan Dev Bije at vil¬lage Naskari Patna, the private deity of Bhabani Prusty, Radhamon Prusty and other Prusty family members of village Kadalibari Patna Samil Bharatipur. Late Agadhu Bhatta, the grandfather of the 1st party members was inducted as a permanent tenant to the aforesaid property by Damodar Prusty, the then Managing Marfatdar of the deity on 02.03.1938 through one “Anumati Patra” and given physical possession of the same. After being inducted as a ten¬ant, late Agadhu Bhatta excavated a tank in schedule B property and raised paddy crops in rest of the disputed property and paid rent to Damodar Prusty. After death of Agadhu Bhatta his son late Narayan Bhatta continued cultivation over the said land as tenant till his death, whereafter the 1st party members cultivated the disputed land in the same capacity and thereby acquired occupancy right. After vesting of the disputed land on the State in the year 1963, it was illegally and fraudulently settled in favour of the deity and the Prusty Family as marfatdar. Since there was dispute between the 1st party and Prusty family in respect of schedule A property the first party members filed a suit for occupancy right and permanent injunction in the Court of Civil Judge (Junior Division) Puri vide T.S. No.406 of 1998 which was dismissed. Since there was dispute between the 1st party and Prusty family in respect of schedule A property the first party members filed a suit for occupancy right and permanent injunction in the Court of Civil Judge (Junior Division) Puri vide T.S. No.406 of 1998 which was dismissed. Being aggrieved with the order of dismissal of the suit the 1st party members preferred appeal impleading also Opp.Party No.2 as representative of the Public. Under such cir¬cumstances the said Opp.Party No.2 in collusion with the 2nd party No.1 tried to raise an electric pillar on the disputed land to draw electric line to his house, illegally constructed by him in the middle of the disputed plot No.285 of schedule-B of the petition. It is learnt that the 2nd party No.2 arranged anti-social elements and deadly weapons to create breach of peace in the locality, in the event of protest made by the 1st party members against illegal raising of electric pillar and drawing electric wire to take power supply over the disputed land. So the 1st party members initiated the proceeding under Section 144 Cr.P.C. with a prayer to restrain the 2nd party members from interfering with their peaceful possession of the land as de¬scribed in detail in schedule A and B of the petition by raising any electric pillar or drawing any electric line over a schedule land. On receipt of the petition under Section 144 Cr.P.C. the learned Executive Magistrate called for a report from the local police. In his report the local police stated that two criminal cases under Section 107 Cr.P.C. bearing Nos.458/2004 and 459/2004 against both the parties were under subjudice. During pendency of the proceeding the 2nd party No.2 filed a memo stating that he had no objection if necessary orders were passed and electric connection is allowed to be given to his premises through any other plot. Under such circumstances the Executive Magistrate held as follows : 1) This Court is not the proper forum to decide right, title and interest of both the parties over the disputed plots. 2) This Court is only concerned to breach of peace aspect under the preventive Sections of Cr.P.C. 3) The 2nd party No.2 is a consumer of electricity since 1986 and time and again power supply is disconnected to his house and which is stated to have been restored once. 2) This Court is only concerned to breach of peace aspect under the preventive Sections of Cr.P.C. 3) The 2nd party No.2 is a consumer of electricity since 1986 and time and again power supply is disconnected to his house and which is stated to have been restored once. 4) The 2nd party No.2 has taken shelter in Consumer Re¬dressal Forum for ventilating his grievance. 5) Cases in different forums have been filed concerning to right, title and interest of the suit property. 6) Crl. Misc. case Nos. 458/2004, and 459/2004 under Sec¬tion 107 Cr.P.C. have been instituted against both the parties which are subjudice at present.” 4. After holding so, he ordered that he was not inclined to proceed further in the matter. However, it was further ordered that the CESCO authority might restore power supply to the 2nd party No.2 keeping in view the decision of C.D. case No.166 of 2004, avoiding the disputed plots bearing Nos.285, 286 and 287. 5. Being aggrieved with this order, the 2nd party No.2 preferred this revision. Learned counsel appearing for the opp.party submits that on basis of the memo of the petitioner the impugned order was passed. So, there is no reason for the petitioner to be ag¬grieved. As mentioned above the petitioner (2nd party member No.2) filed the memo stating that he had no objection if power supply is given to his residence through any plot other than the disputed plots. It is the case of the 1st party (O.P. Nos. 1 to 3) that the petitioner forcibly constructed a house on the middle portion of plot No.285 over an area of Ac.0.4 decimals. So it cannot be practicable to supply electricity to the house of the petitioner without drawing electric wire over a portion of plot No.285. Because CESCO Authority was allowed to supply power to the house of the petitioner avoiding the disputed plots including plot No.285 there is reason for the petitioner to be aggrieved. Learned counsel for the petitioner submits that since admit¬tedly civil suit and two proceedings under Section 107 Cr.P.C. are subjudice between the parties, the Executive Magistrate ought not have initiated the proceeding under Section 144 Cr.P.C. In fact, in view of pendency of the suit and the two proceedings under Section 107 Cr.P.C. and on other grounds the trial Court did not like to proceed with the case. But because of the order that the CESCO may supply electricity to the premises of the petitioner avoiding the disputed plots, supply of electricity cannot be made to the premises of the petitioner. As borne out from record the petitioner is a consumer under the CESCO and in fact electricity was supplied to his residence earlier but it was snapped by some mischief mongers. So if the impugned order is allowed to stand then electricity cannot be supplied to the petitioner. 7. Again in a prohibitory order under Section 144 Cr.P.C. the Magistrate can merely restrict one party from doing certain act or thing. He cannot direct a party to do certain thing. So in the case at hand it is beyond the scope of the Executive Magis¬trate to direct the CESCO authority to supply electricity to the premises of the petitioner. 8. Furthermore, the duration of the order under Section 144 Cr.P.C. has been limited for two months only. In the present case the impugned order having been passed on 16.10.2004, it has already lost its force. Normally in revision this Court does not interfere with any order of magistrate that has already been lapsed due to efflux of time. However, in exceptional circumstances it has power to interfere with such order in revision. Taking into consideration the fact and circumstances of the case, in my view the impugned order warrants interference of this Court. Accordingly the revision is allowed and the impugned order is set aside. Revision allowed.