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2016 DIGILAW 2733 (HP)

Sudershan Singh v. State of Himachal Pradesh

2016-12-26

CHANDER BHUSAN BAROWALIA

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JUDGMENT : CHANDER BHUSAN BAROWALIA, J. 1. Both the Criminal Revision arise out of one and the same judgment and common questions of law and facts are involved in the same, hence, both the revisions were taken up for hearing together and are being disposed of by this common judgment. The present Criminal Revision under Section 397 read with Section 401 of the Code of Criminal Procedure is maintained by the petitioner Sudershan Singh in Criminal Revision No.4186 of 2013 (hereinafter referred to as “the petitioner”) and Rakesh Kumar in Criminal Revision No.139 of 2014 (hereinafter referred to as “respondent No.3.”) to quash and set aside the impugned order dated 19.11.2013, passed by learned Sub Divisional Magistrate, Ghumarwin, District Bilaspur, H.P. 2. The facts giving rise to this petition are that the petitioner is co-owner-inpossession of Khasra No.2391 and 2478, situated in Village Mohal Sandhiar (Baradh) P.O Chhat, Tehsil Ghumarwin, District Bilaspur, H.P. It is averred in the petition that the villagers requested the petitioner to allow them to construct a road from Barud to Paneta and petitioner gives an undertaking that he is ready to provide his land for construction of road, as per the survey and allowed the construction of the road over his land, as per the survey. The “Kachha' road was constructed at the spot, in the year 2006, after erecting a retaining wall to give support to the residential house of the petitioner, so that it may not collapse due to the construction of the road. In the year 2011, the wall constructed for giving support to the residential house of the petitioner was collapsed due to the use of JCB by Gram Panchayat and due to the collapse of the wall certain creaks were developed in the house of the petitioner. Thereafter, the road was closed on account of the collapsed retaining wall, the matter was also brought to the notice of Gram Panchayat, an agreement took place between the members of Gram Panchayat and the petitioner. The Gram Panchayat, has agreed to re-erect the damaged wall, vide agreement dated 20.3.2011. The Gram Panchayat, in pursuance to the agreement dated 20.3.2011 did not re-erect the retaining wall, which was damaged by them till 2013, when the house of petitioner again developed more creaks. The petitioner erected the retaining wall, which are two feet in length and one feet in height to support his house. The Gram Panchayat, in pursuance to the agreement dated 20.3.2011 did not re-erect the retaining wall, which was damaged by them till 2013, when the house of petitioner again developed more creaks. The petitioner erected the retaining wall, which are two feet in length and one feet in height to support his house. It is further averred that when the respondents threatened to damage the entire wall forcibly, the petitioner Sudershan Kumar filed a suit before the learned Court below, thereafter respondent No.3 reported the matter to the police on 4.2.2013, on the basis of which complaint/'Kalendera' under Section 133 of Cr. P.C, was prepared by the Station House Officer, Police Station, Ghumarwin and the same was sent to respondent No.2/Sub Divisional Magistrate, Ghumarwin, thereafter the proceedings were initiated and passed the impugned order dated 19.11.2013. 3. Learned counsel appearing on behalf of the petitioner has argued that the impugned order passed by the learned Sub Divisional Magistrate, Ghumarwin, is contrary to law, as the learned Magistrate has no power to pass an order under Section 133 Cr. P.C, as the Civil Suit was pending adjudication. On the other hand, learned counsel appearing on behalf of respondent No.3 has argued that the impugned order passed by the learned Magistrate, is just and reasoned. He has further argued that whole of the parapet was required to be removed and the impugned order may be modified accordingly by allowing the revision petition of respondent No.3. 4. In rebuttal, learned counsel appearing on behalf of the petitioner has argued that the impugned order is required to be set aside with a direction to the parties to get their case decided in a proper manner in the Civil Court. 5. To appreciate the arguments of learned counsel for the parties, I have gone through the record in detail. 6. The petitioner led his evidence in the learned Court below by producing five witnesses. On the other hand, respondent (now petitioner) has produced two witnesses. CW-1 Geeta Devi has deposed that the pillar and wall raised on the road be removed, so that road become wider for 108 Ambulance. In her cross-examination, she has stated that this road is open for small vehicles and large vehicles cannot pass through this road. CW-2 Giatri Devi, has stated that due to narrow road, heavy vehicles cannot pass through the road. In her cross-examination, she has stated that this road is open for small vehicles and large vehicles cannot pass through this road. CW-2 Giatri Devi, has stated that due to narrow road, heavy vehicles cannot pass through the road. In her crossexamination, she has stated that she does not know whether the tractor pass through the road or not. She has also stated that she does not know how much land has been given by Sudarshan Singh for the road. CW-3 Gian Chand, has deposed that the respondent has raised two feet wall and has narrowed the road. CW-4 Rakesh Kumar, has stated that the road was constructed in the year 2006 by Gram Panchayat and after six years Sudarshan Singh, has narrowed it by raising a wall. In his cross-examination, he has stated that the trucks do not pass through this road. He has stated that he does not know how much land Sudharshan Singh, has given for road. CW-5 Piar Chand, has stated that Sudharshan Singh, has blocked the road by raising parapet. On the spot, there is a pillar due to which small vehicles cannot cross. In his crossexamination, he has stated that he does not know whether the road/path is in Government land or in private land. He has stated that earlier tractor use to pass through this road. He has stated that he does not know whether the tractor of Nanda Pradhan, goes through this way or not. Petitioner Sudershan Singh, has stated that he is working as Forest Guard and deposed that he has not blocked any road. Earlier a false complaint was registered, thereafter Gram Panchayat visited the spot. He has stated that he has filed a Civil Suit against the State of Himachal Pradesh and Gram Panchayat, Chhat. In his cross-examination, he has stated that he has given written consent to make the road. He has stated that he has given consent to small vehicles not to heavy vehicles and JCB etc. 7. From the above, it is clear from the record that the public nuisance has been caused by the petitioner and the impugned order passed by the learned Sub Divisional Magistrate, Ghumarwin, District Bilaspur, dated 19.11.2013, is just, reasoned and as per the Section of 133 Cr. P.C, the obstruction/public nuisance is required to be removed immediately, as it was obstructing the public passage. P.C, the obstruction/public nuisance is required to be removed immediately, as it was obstructing the public passage. The learned Sub Divisional Magistrate, Ghumarwin, District Bilaspur, has passed the impugned order dated 19.11.2013, after visiting the spot and verifying the fact with regard to the passing of the vehicles and the impugned order asking for the removal of the parapet to the extent of two feet in length and one feet in width is seems to be just and reasoned, after appreciating the evidence and facts. The order of learned Sub Divisional Magistrate, Ghumarwin, District Bilaspur, is as per law and he has taken into consideration that after removing a portion of parapet, there will be a smooth turning of vehicles. So, I do not find any illegality or infirmity with the order (s) passed by the learned Sub Divisional Magistrate, Ghumarwin, District Bilaspur, directing the removal of a portion of the parapet. The order passed by the learned Sub Divisional Magistrate, Ghumarwin, District Bilaspur, is after appreciating the evidence, which has come on record and law has been applied correctly. So, no interference is required in the impugned order dated 19.11.2013, passed by the learned Sub Divisional Magistrate, Ghumarwin, District Bilaspur. 8. With these observations, both these revisions are requires dismissal and are accordingly dismissed. No orders as to costs. Pending applications, if any shall also stands disposed of.