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2012 DIGILAW 816 (JHR)

Ram Sumer Dubey v. Pankaj Pandey

2012-06-15

H.C.MISHRA

body2012
ORDER By this Court - Both these revision applications have been filed against the same impugned order and as such they are being disposed of by this common order. 2. Heard learned counsel for the petitioners and learned counsel for the O.Ps. 3. The petitioners have challenged the order dated 8.12.1998 passed by learned Sub-Divisional Magistrate, Sadar, Daltonganj, in Misc. Case No.767 of 1990, in a proceeding under Section 133 of the Cr.P.C., whereby the petitioners being the second party in the proceeding, have been directed to remove the encroachment over the portion of the public road bearing Plot Nos. 711, 713 and 715, Khata No.34, situated in Mohalla New Area, Jail Hata, Municipal Ward No.14, P.O. & P.S. Daltonganj, District Palamu. 4. From perusal of the impugned order, it appears that the first party O.P. No.2 had filed an application on the basis of which the proceeding under Section 133 Cr.P.C. was instituted, wherein he had alleged that the portions of the aforementioned land, which was being used as public road, had been encroached by the petitioners who were the second party in the Court below. It appears from the impugned order that the report was called for from the Circle Officer, Sadar Daltonganj, with respect to the alleged encroachment. Persuant thereto, a report was also submitted in the Court below. From the impugned order, it further appears that the petitioner Ram Sumber Dubey, who was second party in the Court below had claimed that the proceeding under Section 133 Cr.P.C. was not maintainable, as the alleged road was not a public road and he had also denied any encroachment, to have been made by him, whereas the petitioner Shri Kant Sharma who was also the member of the second party had admitted in his show-cause that the disputed road was a public road, but he also denied any encroachment to have been made by him on the said public road, though this petitioner had also alleged that the encroachment was done by petitioner Ram Sumber Dubey. 5. 5. It appears from the impugned order that the evidence was adduced by the members of the second party only, and no evidence whatsoever adduced by the first party in the said proceeding under Section 133 Cr.P.C. It further appears that the Court below did not even examine the Circle Officer, Daltonganj who had submitted the report with respect to encroachment of the disputed road and had only stated that the parties had not filed any objection to the report. However, it is apparent from the impugned order that the Court below has taken into consideration all materials before it, including the report of the Circle Officer and has directed the petitioners to remove the encroachment from the public road within a period of one month. 6. Learned counsel for the petitioners has submitted that the impugned order passed by the Court below cannot be sustained in the eyes of law, in as much as, the Court below has taken into consideration the report submitted by the Circle Officer and passed the order for removing the encroachment, even though, the said Circle Officer was not examined, nor the report submitted by him was proved. 7. Learned counsel for O.P. on the other hand has submitted that there is no illegality and/or irregularity in the impugned order worth interference in the revisional jurisdiction, in as much as, it is apparent from the impugned order that no objection was filed to the said report and the said report was admitted by the parties. Learned counsel further submitted that it is an admitted fact by the petitioner Shri Kant Sharma that road in question is a public road and that there was encroachment by the petitioner Ram Sumber Dubey on the said road. Learned counsel accordingly, submitted that there is no illegality in the impugned order and the same cannot be interfered with. 8. After having heard learned counsels for both the parties and upon going through the impugned order, I find that the evidence was adduced only by the second party in the Court below and no evidence was adduced by the first party whatsoever. Even the Circle Officer, who was deputed by the Court below to make the measurement of the road and who submitted the report in the Court below, had not been examined, nor his report was proved in the Court below. Even the Circle Officer, who was deputed by the Court below to make the measurement of the road and who submitted the report in the Court below, had not been examined, nor his report was proved in the Court below. Still this report was taken into consideration and the impugned order was passed. Thus, the impugned order appears to have been passed without any cogent material on record. As such, the order is absolutely illegal and the same cannot be sustained in the eyes of law. 9. In view of the aforementioned discussions, the impugned order dated 8.12.1998 passed by the Sub-Divisional Magistrate, Sadar Daltonganj, in Misc. Case No.767 of 1990 is hereby, set-aside and the Court below is directed to decide the case afresh, in accordance with law. Both these applications are accordingly, allowed. Application allowed.