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2008 DIGILAW 998 (ORI)

JYOSHNAMAYEE PRADHAN v. RAMESH CHANDRA MANGARAJ

2008-11-05

PRADIP MOHANTY

body2008
JUDGMENT : Pradip Mohanty, J. - This revision is directed against the order dated 28.09.2007 passed by the Executive Magistrate, Bhubaneswar in Crl. Misc. Case No. 931 of 2007 restraining the Petitioner from making any construction or structure over the case land and directing both the parties to take shelter of the competent civil Court, if necessary. 2. The present opposite party (1st party before the Court below) filed a petition u/s 144 Code of Criminal Procedure before the Executive Magistrate, Bhubaneswar against the present Petitioner (2nd party before the Court below). His case was that he is in possession of the disputed property on the basis of an agreement to sale and the Petitioner is disturbing his possession by coming over the disputed property. The case of the Petitioner was that she purchased the disputed property on 18.01.2002, mutated the same in her name, continued with possession by constructing a boundary wall over the same. She has also got a plan approved by the B.D.A. to construct a building and has been paying rent to the State and so also electricity charges to CESCO. In her show-cause, she specifically pleaded that the proceeding was not maintainable as there was absolutely no apprehension of breach of peace. 3. Mr. Mohanty, learned Counsel appearing for the Petitioner submitted that after purchase the Petitioner mutated the property in her name. Patta was issued in her favour. The Petitioner got electric connection to the said property and approved a building plan from the B.D.A. During the course of hearing, the Executive Magistrate called for a report from the local police. The local police reported that the Petitioner had constructed a building on that plot. She also produced a Patta and specifically stated that Plot No. 1593/759 was purchased by her from one Sulochana Panda. On the other hand, the opposite party did not produce any document and requested the Executive Magistrate to depute the R.I. to identify Plot No. 1576 and Plot No. 1593/759. Mr. Mohanty further submitted that there was absolutely no breach of peace relating to the disputed property; but the executive Magistrate, taking into consideration the judgment of the civil Court, directed the Petitioner not to make any construction over the case land. Mr. Mohanty further submitted that there was absolutely no breach of peace relating to the disputed property; but the executive Magistrate, taking into consideration the judgment of the civil Court, directed the Petitioner not to make any construction over the case land. He also submitted that in view of the report of the local police, the Executive Magistrate should not have restrained the construction; rather he should have passed an order with regard to demarcation of the property. 4. Mrs. Mohanty, learned Counsel for the opposite party submitted that there is no illegality committed by the Executive Magistrate. The only remedy available to the Petitioner is to approach the competent civil Court and order the Executive Magistrate has rightly passed such an order. The sale deed executed by the vendor of the Petitioner is ab initio void in view of the decree passed in T.S. No. 105 of 1985. The order passed by the Executive Magistrate u/s 144 Code of Criminal Procedure shall not remain in force for more than two months from the date of its passing, i.e., 28.09.2007. Therefore, the matter has become infructuous and nothing remains to be decided in this revision. 5. Perused the records. Admittedly, the impugned order was passed on 28.09.2007. Any order passed u/s 144 Code of Criminal Procedure shall not remain in force for more than two months from the date of its passing. From the police report it reveals that on the date of enquiry the Petitioner was in possession of the land and the opposite party identified Plot No. 1776, Khata No. 59 in Sabik and in Hal Plot No. 2188 of Sahar Sahi, Laxmisagar P.S. But on the spot, it was ascertained that the Petitioner constructed a building on that plot. She produced Patta and rent receipt of the plot and stated that her plot number was 1593/759. Therefore, the I.I.C. requested the Executive Magistrate to depute an Amin to demarcate both the plots. But the Executive Magistrate without considering the report and without giving any finding with regard to possession, passed an order restraining the Petitioner from constructing any structure, which is illegal. In any case, since the restraint order shall not remain in force for more than two months, the matter has become infructuous. But the Executive Magistrate without considering the report and without giving any finding with regard to possession, passed an order restraining the Petitioner from constructing any structure, which is illegal. In any case, since the restraint order shall not remain in force for more than two months, the matter has become infructuous. It is also found that present dispute is for identity of the plot and as per report of the I.I.C., there is no apprehension of breach of peace. In such circumstance, the aggrieved party may approach the competent civil Court. 6. With the aforesaid observation, the criminal revision is disposed of.