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2013 DIGILAW 4 (PAT)

Babu Saheb Raut v. State of Bihar

2013-01-04

BIRENDRA PRASAD VERMA

body2013
C.A.V. ORDER The petitioner, being aggrieved by the order dated 20.7.2012 passed in M.R. Case No. 118 of 2011 by the learned Sub-Divisional Magistrate, Sadar, Madhubani, in purported exercise of his powers under Section 133 of the Code of Criminal Procedure, 1973 ( for short ‘Cr.P.C.’), directing him to remove by 6.8.2012 his building and other structures from allegedly encroached portion of Plot No.84, a public road, situate in Mohalla Tilak Chowk in Madhubani Town, has preferred the present revision application under Sections 397 and 401 Cr.P.C. before this Court, questioning the correctness, legality and propriety of the impugned order. 2. From the pleadings of the parties, it appears that the opposite party no.4, namely, Birendra Raut filed a petition before the learned Sub-Divisional Magistrate, Sadar, Madhubani, with a prayer to initiate a proceeding under Section 133 Cr.P.C. for removal of alleged encroachment from the govt. land made by the preset petitioner. It was claimed that the petitioner has made encroachment over the govt. land adjacent to public road to the extent of 15 feet from southern side, and by constructing 8 shops thereon, he has let out the same and is earning huge money per month towards rent. On the basis of the aforesaid petition, notice was issued to the petitioner on 3.12.2010 (Annexure-2) asking him to show cause as to why steps be not taken for removal of encroachment from the public land. The petitioner claims to have filed his show cause on 28.1.2011(Annexure-3) denying the allegation of any encroachment made by him on any public road or Govt. land. 3. It appears that on the basis of materials produced by the opposite party no.4 and after considering the show cause filed on behalf of the petitioner, the learned Magistrate decided to initiate a proceeding under Section 133 Cr.P.C. with respect to the lands bearing Khesra Nos. 83 and 84 situate at Mohalla Tilak Chowk, Ward No.8 in the Town of Madhubani. In the aforesaid proceeding under Section 133 Cr.P.C., opposite party no.4 was the first party, whereas the present petitioner was made 2nd party. 4. By an order dated 31.3.2011, the learned Sub-Divisional Magistrate, Sadar, Madhubani, issued a conditional order in terms of Section 133(1) Cr.P.C. directing the petitioner to remove nuisance from the aforesaid land of Khesra Nos. In the aforesaid proceeding under Section 133 Cr.P.C., opposite party no.4 was the first party, whereas the present petitioner was made 2nd party. 4. By an order dated 31.3.2011, the learned Sub-Divisional Magistrate, Sadar, Madhubani, issued a conditional order in terms of Section 133(1) Cr.P.C. directing the petitioner to remove nuisance from the aforesaid land of Khesra Nos. 83 and 84 and he was asked to show cause on 16.4.2011 as to why the rule should not be made absolute. The notice dated 31.3.2011 issued by the learned Sub-Divisional Magistrate, Sadar, Madhubani, has been brought on record as Annexure-4. 5. It is the case of the petitioner that in response to the aforesaid show cause notice vide Annexure-4, he filed his show cause and asserted that the land bearing survey plot no. 83 is the raiyati land, and it is neither a public road nor a Govt. land. It was pleaded that notice issued by the learned Sub-Divisional Magistrate was quite vague. No authentic official report has been shown about the alleged encroachment made by the petitioner over a portion of plot no. 84. It was also claimed that the land of survey plot no. 84 belongs to Madhubani Municipality. According to the petitioner his son Prabhat Ranjan has taken 4 dhurs of land from Madhubani Nagar Parishad on rent of Rs. 300/- per month and he has deposited Rs. 10,000/-( ten thousand) towards security deposits. 6. In the present proceeding, opposite party no.4 has suo motu appeared before this Court, and has filed his counter affidavit resisting the prayer made on behalf of the petitioner. It has been pleaded on behalf of the opposite party no.4 that the petitioner has unlawfully obstructed the public road over plot no. 84 by constructing his shops over it, as a result of which there is obstruction in free flow of traffic, and it has caused nuisance. According to opposite party no.4, the Circle Officer, Rahika, has also submitted his report dated 29.4.2011(Annexure-A to the counter affidavit) to the learned Sub-Divisional Magistrate, Madhubani to the effect that as per the report of Anchal Amin 18 feet of land from north and 33 feet of land from west of plot no. 84 have been encroached upon by the petitioner. 84 have been encroached upon by the petitioner. It has further been claimed on behalf of the opposite party no.4 that Anchal Adhikari, Rahika, by his order dated 30.8.2011 directed the petitioner to remove his encroachment from the lands in question, yet he has not complied the order. It has been pleaded on behalf of the opposite party no.4 that the land of plot no. 84 has been recorded as Kaishre Hind and it is a public road. Therefore, according to the case of opposite party no.4, Madhubani Nagar Parishad was not authorized to give any portion of plot no. 84 to the son of the petitioner either on rent or lease. On these pleas, besides others, a prayer has been made for dismissal of the present revision application. 7. It would be relevant to mention here that despite opportunity given to the learned Additional Public Prosecutor appearing on behalf of the State of Bihar and its functionaries, no counter affidavit has been filed on behalf of the State of Bihar and its functionaries. It would further be relevant to mention here that in the aforesaid proceeding under Section 133 Cr.P.C., the petitioner, who was the second party, produced three witnesses in support of his case, out of them witness no.2 was the petitioner himself. Similarly, opposite party no.4, who was first party in the aforesaid proceeding, also produced three witnesses in support of his case, out of whom P.W. 1 was opposite party no.4 himself. 8. Learned counsel appearing on behalf of the petitioner submits that even if the petitioner has made certain constructions over some portions of plot no. 84, in that case also it cannot be said that he has created nuisance. The public at large has not raised any grievance either before the learned Sub-Divisional Magistrate, Sadar, Madhubani or before any other competent authority either about the alleged encroachment made by the petitioner or any nuisance caused by him. It is next submitted that since there is no finding of fact recorded by the learned Sub-Divisional Magistrate, Madhubani about causing of any nuisance by the petitioner over the land in question on the basis of any valid documents/materials, the impugned order passed by the learned Sub-Divisional Magistrate, Madhubani in purported exercise of his powers under Section 133 Cr.P.C. is without jurisdiction and is not sustainable in the eye of law. It was also highlighted that there is some previous dispute pending between the petitioner and opposite party no.4 and for that reason opposite party no.4 got the present proceeding initiated, but there is lack of jurisdictional facts for passing any order under Section 133 Cr.P.C. In support of his above contentions he has placed reliance on the judgment of the Hon’ble Apex Court in the case of Suhelkhan Khudyarkhan and Another Vs. State of Maharashtra [ AIR 2009 S.C. 1868 ] 9. Learned counsel appearing on behalf of opposite party no.4 has opposed the prayer made on behalf of the petitioner and has supported the impugned order passed by the learned Sub-Divisional Magistrate, Sadar, Madhubani, directing the petitioner to remove his encroachment from the land of plot no. 84. It has been submitted that direction has been issued by the learned Sub-Divisional Magistrate, Sadar, Madhubani to the petitioner for removal of encroachment from the public road bearing survey plot no. 84. Learned counsel has fairly conceded that there is no dispute with respect to survey plot no. 83. According to him, Section 133(1) (a) of the Cr.P.C. empowers the learned Magistrate for passing an order for removal of any unlawful obstruction, and on 29.4.2011 Anchal Adhikari, Rahika, had submitted his report to the learned Sub-Divisional Magistrate, Madhubani for starting a proceeding under Section 133 Cr.P.C. for removal of encroachment made by the petitioner over survey plot no. 84. It is contended that notice was issued to the petitioner and he was directed to remove the encroachment by an order dated 30.8.2011, yet the petitioner did not remove his encroachment from the lands in question. It is next contended that the lands of plot no. 84 is a public road recorded as Kaishre Hind. It was further highlighted that the impugned order dated 20.7.2012 has been passed after giving opportunity of hearing to both sides. With respect to the stand of the petitioner, it was pointed out that the petitioner has been changing his stand after one stage to another. According to him, in the first show cause filed by the petitioner he denied to have made any encroachment over the lands of plot no. 84, but in his subsequent show cause, the petitioner claimed that some portion of plot no. 84 has been given to his son by Madhubani Nagar Parishad on rent. According to him, in the first show cause filed by the petitioner he denied to have made any encroachment over the lands of plot no. 84, but in his subsequent show cause, the petitioner claimed that some portion of plot no. 84 has been given to his son by Madhubani Nagar Parishad on rent. On these pleas, a prayer is being made to reject this revision application and affirm the impugned order passed by the learned Sub-Divisional Magistrate, Sadar, Madhubani. In support of his above contention, learned counsel has placed reliance on the judgments of a learned Single Judge of this Court in the case of Shambhu Choudhary Vs. Rajendra Prasad and others [1993 (2) PLJR 151] and Sheo Ratan Mahto Vs. The State of Bihar and Ors. [2006 (3) PLJR 137]. 10. Before considering the rival submissions made on behalf of the parties, it would be apt to notice the scheme for removal of public nuisances delineated in Chapter X of the Cr.P.C. Section 133 Cr.P.C. provides for removal of public nuisances. The District Magistrate or the Sub-Divisinal Magistrate or any other Executive Magistrate specially empowered by the State Government, on receiving a report of the Police Officer or any other information and on taking such evidence as he thinks fit, has been empowered to pass a conditional order requiring the person causing any unlawful obstruction or nuisance to remove such obstruction or nuisance within the time to be fixed by him, or in case such person objects to do so, then in that case a show cause notice is required to be issued as to why the order should not be made absolute against him. In case of disobedience of such order by any person, Section 136 Cr.P.C. provides that he shall be liable to the penalty as prescribed under Section 188 of the Indian Penal Code. In case of disobedience of such order by any person, Section 136 Cr.P.C. provides that he shall be liable to the penalty as prescribed under Section 188 of the Indian Penal Code. Section 137 Cr.P.C. contemplates that in case a public right is denied by any person on the order passed against him under Section 133 Cr.P.C., then the learned Magistrate is required to come to a conclusion after holding an enquiry that there is no reliable evidence in support of such denial of any public right and only thereafter he can proceed further under Section 138 Cr.P.C. However, if the learned Magistrate comes to a finding that there is some reliable evidence in support of denial of public right, then the proceeding is required to be stayed until such matter is decided by a competent court. In case, a show cause is filed by a person denying existence of public right against whom a conditional order has been passed for removal of nuisances, the learned Magistrate is required to take evidence produced by the parties and on consideration of materials he may either modify the previous order or previous order passed by him may be made absolute against such person. Section 139 Cr.P.C. empowers the learned Magistrate, on the basis of enquiry under Section 137 or 138 Cr.P.C., to direct a local investigation to be made by such person as he thinks fit. He is also empowered to summon and examine the Expert for being satisfied about the objection raised with respect to conditional order passed by him in terms of Section 133(1) Cr.P.C. On consideration of the materials available on the record, he may make the rule absolute, either in terms of Section 136 or under Section 138 Cr.P.C. Once the order has been made absolute, the learned Magistrate is enjoined with the powers in terms of Section 141 Cr.P.C. to give a fresh notice to such person against whom order in terms of Section 136 or 138 Cr.P.C. has been made absolute requiring him to comply the order within the timeframe fixed by him and informing him that in case of disobedience he will be liable to penalty as provided under Section 188 of the Indian Penal Code. 11. 11. After having heard the learned counsels appearing on behalf of the parties, on perusal of the impugned order passed by the learned Sub-Divisional Magistrate, Sadar, Madhubani and on consideration of rival submissions advanced on behalf of the parties, this Court is of the considered opinion that entire matter requires reconsideration and fresh decision by the learned Magistrate. This Court finds that it is the consistent case of opposite party no.4 that the petitioner has made encroachment over certain portions of survey plot no. 84. The proceeding under Section 133 Cr.P.C. was basically initiated at the instance of opposite party no.4. The general public of the area have neither raised any grievance nor have they appeared as witness before the learned Magistrate to show that due to alleged encroachment made by the petitioner a nuisance has been created over the public road/ govt.land causing inconvenience to the people at large. This Court is of the opinion that if the petitioner has made encroachment over the public road or Govt. land, then in that case an appropriate proceeding can be initiated by a competent authority for removal of such encroachment under the provisions of The Bihar Public Land Encroachment Act. 12. This Court is also of the considered opinion that the learned Magistrate is empowered to pass an order for removal of public nuisances as enumerated in Section 133 Cr.P.C. But, before making the order absolute in terms of Section 133 Cr.P.C. against the petitioner for removal of unlawful obstruction from the lands in question, he was obliged to follow the procedures as prescribed under Sections 137,138,139 and 141 of the Cr.P.C. Apparently, the procedures prescribed under the aforesaid Sections of the Cr.P.C. have not been complied with by the learned Magistrate before passing the impugned final order directing the petitioner to remove his encroachment from the lands in question. This makes the impugned order vulnerable and unsustainable. This Court further finds that the petitioner has claimed that some part of plot no. 84 has been given to his son by Madhubani Nagar Parishad on rent/lease basis. Therefore, he has tried to claim his bona fide possession over that much area of land. This makes the impugned order vulnerable and unsustainable. This Court further finds that the petitioner has claimed that some part of plot no. 84 has been given to his son by Madhubani Nagar Parishad on rent/lease basis. Therefore, he has tried to claim his bona fide possession over that much area of land. This also goes to the root of the matter, but the learned Magistrate before passing the impugned final order has neither made any enquiry nor recorded any finding of fact with respect to such claims made on behalf of the petitioner. 13. The Hon’ble Apex Court in the case of Suhelkhan Khurdyarkhan ( Supra) has analyzed the scheme, scope and mandate of Section 133 Cr.P.C., particularly in paragraphs 11,12 and 13 of its judgment. The Hon’ble Apex Court has clearly held that the proceeding under Section 133 Cr.P.C. is not intended to settle private disputes between two rival groups of people. In the present case, dispute between the petitioner and opposite party no.4, as projected in the impugned order, appears to be a dispute of private in nature. 14. For the reasons recorded above, the impugned order dated 20.7.2012 passed in M.R. Case No. 118 of 2011 by the learned Sub-Divisional Magistrate, Sadar, Madhubani, is hereby set aside and the matter is remitted back to him for passing a fresh order strictly in accordance with law after giving opportunity of hearing to all concerned including the petitioner and opposite party no.4 and by bearing in mind the observations made above in the present order as also the law laid down by the Hon’ble Apex Court. The learned Magistrate shall be obliged to examine the matter afresh and shall be at liberty to pass a fresh order for removal of alleged encroachment made by the petitioner either in terms of Section 133 Cr.P.C. or under any other appropriate law, which may be applicable in the facts and circumstances appearing in the present case. 15. The petitioner and opposite party no. 4 are directed to appear before the learned Sub-Divisional Magistrate, Sadar, Madhubani, with a certified copy of the present order on or before 28.1.2013, whereafter a firm date shall be fixed by the learned Sub-Divisional Magistrate, Sadar, Madhubani for proceeding in the matter afresh. The learned Magistrate shall be at liberty to pass a fresh order after complying with the mandate of the law. The learned Magistrate shall be at liberty to pass a fresh order after complying with the mandate of the law. If the learned Magistrate comes to a conclusion that the proceeding is required to be disposed of under the provision of Section 133 Cr.P.C. itself and not under any other law, then he shall be obliged to dispose of the proceeding within a maximum period of six months. 16. The application stands finally disposed of with the observations and directions made above. 17. The interim order of stay dated 28.9.2012passed by this Court stands merged with the present order.