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2013 DIGILAW 969 (JHR)

Raj Kumar Sahu v. State of Jharkhand

2013-08-16

R.R.PRASAD

body2013
ORDER This application is directed against the order dated 20.6.2012 passed by the 3rd Additional Judicial Commissioner, Ranchi in Cr. Rev. No.206 of 2011 whereby and whereunder the revisional court set aside the order dated 24.10.2011 passed by the Sub-divisional Magistrate, Sadar Ranchi whereby Misc. Case No.580 of 2011 filed on behalf of the opposite parties 2 to 6 for initiating a proceeding under Section 147 of the Code of Criminal Procedure was rejected. 2. It appears that opposite parties 2 to 6 filed a case before the Sub-divisional Magistrate, Sadar Ranchi for initiating a proceeding under Section 147 of the Code of Criminal Procedure stating therein that opposite parties 2 to 5 did purchase part of the land appertaining to R.S. Plot no.1220 from the heirs and successors of recorded tenant through sale deeds in which 13 ft. wide road running south to north was shown towards the western side of the vended plots. Similarly, opposite party no.6 purchased land appertaining to R.S. Plot No.1655 from the rightful owner through a sale deed in which 13 ft. wide road was shown towards northern side of the vended plot. 3. Further case is that opposite parties having come to the exclusive possession over the land have been using 13 ft. wide road for ingress and egress to their purchased land but suddenly the petitioner put obstruction by raising a boundary wall to defeat the right of the users and therefore, prayer was made to direct the petitioner to remove the obstruction from 13 ft. wide road. 4. On such application, a report from the local police was called for and at the same time, notice was issued to the petitioner. The petitioner having appeared put his case that it is absolutely false to say on the part of the opposite parties 2 to 6 that 13 ft. wide road running south to north does exists in the western side of the land purchased by them (opposite parties 2 to 5), rather the fact is that the Plot No.1220 is a big plot having an area of 1.59 acre, descendants of recorded tenant are in use and occupation of remaining portion of land appertaining to said Plot No.1220 which does situates towards eastern side of the land purchased by the opposite parties and have been using 13 ft. wide road situates towards eastern side for ingress and egress which connects Argora Bye-pass Road and the opposite parties 2 to 6 have also been using the same 13 ft. wide road situates on the eastern side of the land of the petitioner appertaining to Plot No.1220. 5. Thus, it was denied that any such road of 13 ft. wide running south to north in the western side of the land purchased by the opposite parties 2 to 6 does exists but the police has wrongly reported that such road does exists which is being used by the opposite parties and also by the residents of that locality. 6. At the same time, it was also pleaded that the land in question is the subject matter of partition suit pending between the petitioner and his co-sharer before the competent court of law. 7. The learned Sub-divisional Magistrate, Ranchi dismissed the application filed by the opposite parties 2 to 6 simply on the ground that since the land in question is the subject matter of the partition suit pending before the court of competent jurisdiction, no action can be taken on the application filed by the opposite parties 2 to 6. That order was challenged before the revisional court and the revisional court set aside the order passed by the Sub-divisional Magistrate holding therein that the ground on which the application filed by the opposite parties 2 to 6 had been rejected is absolutely untenable in law as the Magistrate in view of the provision as contained in Section 147 of the Code of Criminal Procedure is to decide as to whether right of user exists in favour of any of the parties or not and hence, the Magistrate never requires to decide title of any of the parties. In that event, the matter was remanded back to the learned Sub-divisional Magistrate to pass order in accordance with law. That order has been challenged before this Court. 8. Here same plea was taken by learned counsel appearing for the petitioner that the petitioner is the rightful owner of the land in question and therefore, the question of initiation of a proceeding under Section 147 of the Code of Criminal Procedure does not arise. 9. It was also submitted that no such 13 ft. wide road towards western side of the vended plots does exists, rather 13 ft. 9. It was also submitted that no such 13 ft. wide road towards western side of the vended plots does exists, rather 13 ft. wide road does exists towards eastern side of the land to which the petitioner is the owner which road is being used even by the opposite party. 10. However, Mr. K.P.Deo, learned counsel appearing for the opposite parties submits that 13 ft. wide road towards western side of the vended plots does very much exists. Even the police during enquiry has found existence of that road and it has been recorded by the police in its report that the said road is being used not only by the opposite parties but also by the persons of that locality. 11. This Court is never supposed to give any finding of the fact, rather it is only to be seen as to whether the order passed by the revisional court is legal or not ? 12. In this context, I may refer to a provision as contained in Section 147 of the Code of Criminal Procedure which reads as under : “147.Dispute concerning right of use of land or water – 1. Whenever an Executive Magistrate is satisfied from the report of a police officer or upon other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of used of any land or water within his local jurisdiction, whether such right be claimed as an easement or otherwise, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader on a specified date and time and to put in written statements in their respective claims. Explanation – The expression “land or water” has the meaning given to it in sub-section (2) of Section 145. 2. The Magistrate shall then peruse the statements so put in, hear the parties, received all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible, decide whether such right exists; and the provisions of Section 145 shall, so far as may be, apply in the case of such inquiry. 3. 3. If it appears to such Magistrate that such rights exist, he may make an order prohibiting an interference with the exercise of such right, including in a proper case, an order for the removal of any obstruction in the exercise of any such right : Provided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the receipt under subsection (1) of the report of a police officer or other information leading to the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such receipt. 4. When in any proceedings commenced under sub-section (1) of Section 145 the Magistrate finds that the dispute is as regards an alleged right to user of land or water, he may, after recording his reasons, continue with the proceedings as if they had been commenced under sub-section (1); and when in any proceedings commenced under sub-section (1) the Magistrate finds that the dispute should be dealt with under Section145, he may, after recording his reasons, continue with the proceedings as if they had been commenced under sub-section (1) of Section 145.” 13. From its perusal it is quite evident that the Magistrate has only to decide as to whether such right of user does exists in favour of either of the parties claiming the right where claim is made by way of easement or otherwise and whether such right has been used within three months next before receipt of information leading to institution of the inquiry. The Magistrate is never called upon to decide the title of any party. 14. In that event, the revisional court seems to be absolutely justified in remanding back the matter before the Sub-divisional Magistrate, Ranchi for deciding the case in accordance with law. 15. Accordingly, I do not find any merit in this application and hence, this application stands dismissed.