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2016 DIGILAW 582 (ALL)

RAM KRIPAL v. STATE OF U. P.

2016-02-19

VIJAY LAKSHMI

body2016
JUDGMENT Hon’ble Mrs. Vijay Lakshmi, J.—By means of this writ petition the petitioner has invoked the inherent jurisdiction of this Court praying for the following reliefs: (i) issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 4.8.2003 passed by Sub Divisional Magistrate, Dumeriyaganj, Siddharth Nagar, and 19.10.20105 passed by Additional District & Sessions Judge, Fast Track Court No. 2, Siddharth Nagar, (Annexure No. 9 and 10) and to drop the proceedings initiated against the petitioner under Section 133 Cr.P.C. (ii) issue such other and further writ, order or direction which this hon’ble Court may deem fit and proper in the nature and circumstances of the present case; (iii) award costs of the petition to the petitioner. 2. Sri Tripathi B. G. Bhai, learned counsel for the petitioner, and learned AGA are present. No one is present on behalf of the private respondents even in the revised call. 3. At the very outset it may be mentioned here that on 5.1.2016 when this case was listed, learned counsel for the petitioner submitted that since all the private respondents are proforma respondents and they have no objection, which is quite evident from the counter-affidavit filed by them, this petition, which is pending since the year 2006, be disposed of finally today. Hence I heard him and learned AGA. Due to paucity of time, judgment could not be dictated on dias so I got it reserved. 4. While perusing the record before dictating judgment, I noticed that the learned counsel for the petitioners while arguing the petition, did not inform that the respondent No. 3 is a contesting respondent, who has not even been served with the notice. 5. The order sheet shows that on 19.7.2006 this Court had directed to issue notice to respondent No. 3. There is no office report about service of notice on respondent No. 3. Only a registered envelope is available on record having the following endorsement of the postman, ^^izkIrdrkZ ds ?kj tkus ij eqykdkr ugha gqbZA vr% izss"kd dks okfilA^^ 6. Thus it is clear that the respondent No. 3, who is contesting respondent, has not been sufficiently served with the notice. The order sheet further shows that in between 17.8.2006 and 8.1.2016 there is no order of this Court. Thus it is clear that the respondent No. 3, who is contesting respondent, has not been sufficiently served with the notice. The order sheet further shows that in between 17.8.2006 and 8.1.2016 there is no order of this Court. The petitioner was granted interim stay order by this Court on 8.2.2006 and it appears that after getting the proceedings stayed in his favour, the petitioner sat quietly and did not make any effort either to take steps for issuance of notice to respondent No. 3 or even to move any listing application before this Court. 7. I also noticed that an amendment application is pending regarding which learned counsel for the petitioner did not even utter a word and argued the case on merits. Learned AGA also did not point out towards this. 8. As I have already heard learned counsel for the petitioner and learned AGA there is no point to keep this case remain pending specially in view of the fact that this writ petition is pending since the year 2006 and has become critically old. Therefore, I am deciding it on merits after hearing learned counsel for the petitioner and perusing the record. 9. The petitioner in this writ petition, has challenged the legality and correctness of two orders. First the order dated 4.8.2003 passed by the S.D.M., Dumariyaganj, District Siddharth Nagar, and second the order dated 19.10.2005, passed by the learned Additional Sessions Judge/F.T.C. No. 2, Siddharth Nagar, whereby dismissing the Criminal Revision No. 154 of 2003, Hajmat Ali and others v. Chandra Prakash Singh, filed against the aforesaid order dated 4.8.2003 of S.D.M. Dumariyaganj. 10. Some brief facts necessary for disposal of this writ petition are that on 21.4.1998 the respondent No. 3 moved an application before the Sub Divisional Officer, Dumariyaganj, District Siddharth Nagar, under Section 133(1) Cr.P.C. to the effect that the petitioner as well as proforma respondent Nos. 4 to 9 have made constructions over public path, hence such constructions and encroachments be directed to be removed. On the said application the Sub Divisional Magistrate called for the report from the concerned police station, which submitted its report on 27.8.1998 alongwith site plan. The Sub Divisional Magistrate vide order dated 3.9.1998 passed the conditional order against the petitioner as well as proforma respondent Nos. 4 to 9 to remove the constructions or to show-cause. On the said application the Sub Divisional Magistrate called for the report from the concerned police station, which submitted its report on 27.8.1998 alongwith site plan. The Sub Divisional Magistrate vide order dated 3.9.1998 passed the conditional order against the petitioner as well as proforma respondent Nos. 4 to 9 to remove the constructions or to show-cause. The petitioner submitted written statement before the Sub Divisional Magistrate on 16.9.1998 containing inter alia therein that there was no public path and as such the allegations made in the application were totally false and frivolous. It was also stated by the petitioner that no construction was ever raised over pathway, he was making constructions in his own land and had not encroached upon public path. The petitioner prayed that the report of the police station, the conditional order dated 3.9.1998 and the entire proceedings under Section 133 Cr.P.C. be dropped. 11. The proforma respondent Nos. 4 to 9 also filed written statement on 16.9.1998 stating therein that respondent No. 3 was intending to encroach upon the land in dispute, therefore, they preferred Civil Suit No. 150 of 1998, Hajmat Ali v. Chandra Prakash Singh, in which an interim order dated 28.3.1998 was passed restraining the respondent No. 3 from interfering with their construction. It was also contended by the proforma respondents in their written statement that as the civil suit with regard to the same land/pathway was pending adjudication before the Civil Court, the proceedings under Section 133 Cr.P.C. were not maintainable. 12. The learned Sub Divisional Magistrate after hearing both the parties decided the application vide order dated 24.5.1999 whereby directing the police to remove the constructions within fifteen days. 13. The petitioner and the proforma respondents 4 to 9 filed Criminal Revision No. 145 of 1999 against the order dated 24.5.1999 in the Court of District & Sessions Judge, Siddarth Nagar. The learned District & Sessions Judge, Siddharth Nagar, vide order dated 22.12.1999, allowed the revision on the ground that the learned Magistrate has not recorded the denial statement and has relied upon photo copy of the documents and the police report, which is not admissible in evidence. The learned District & Sessions Judge after recording the aforesaid findings remanded the matter back to the S.D.M. directing him to pass fresh order after recording the denial statement. 14. The learned District & Sessions Judge after recording the aforesaid findings remanded the matter back to the S.D.M. directing him to pass fresh order after recording the denial statement. 14. On remand the case was again heard by the Sub Divisional Magistrate, Dumariyaganj, and after hearing both the parties, the learned S.D.M. passed the impugned order dated 4.8.2003 observing that the alleged pathway is public pathway and directing both the parties to adduce evidence in support of their claims under Section 138 Cr.P.C.. 15. Being aggrieved by the order dated 4.8.2003 the petitioner as well as the proforma respondents 4 to 9 filed criminal revision No. 541 of 2003 before the Additional District & Sessions Judge, Siddharth Nagar, which was decided vide impugned order dated 19.10.2005 whereby the learned Additional Sessions Judge upheld the order dated 4.8.2003 passed by the Sub Divisional Magistrate and dismissed the revision on the ground that the order of the learned Sub Divisional Magistrate passed under Section 138(2) Cr.P.C. being an interlocutory order the revision against it is not maintainable. 16. Learned counsel for the petitioner has challenged the legality and correctness of both the aforesaid impugned orders in the instant writ petition by contending that both the Courts below, while passing the impugned orders, have totally failed to consider that there is specific case of the petitioner as well as proforma respondent Nos. 4 to 9 that a Civil Suit No. 150 of 1998, in respect of the same land in dispute is pending adjudication before the Civil Court. Not only that, in the same suit an injunction is also operating in their favour and against respondent No. 3 and as such pending adjudication of the said suit, the proceedings under Section 133 Cr.P.C. were not maintainable. It has next been contended by learned counsel for the petitioner that the learned Sub Divisional Magistrate has recorded an erroneous finding only on the basis of the written arguments filed by the petitioner that the petitioner has admitted that the disputed land is “Public Gali” whereas there was no admission that any public lane is existing at the disputed place. 17. On the aforesaid grounds it has been prayed that the impugned orders passed by the Courts below be set aside and the petition be allowed. 18. After hearing learned counsel fo rthe petitioner, learned AGA and learned counsel for respondent Nos. 17. On the aforesaid grounds it has been prayed that the impugned orders passed by the Courts below be set aside and the petition be allowed. 18. After hearing learned counsel fo rthe petitioner, learned AGA and learned counsel for respondent Nos. 4 to 9 and on a careful perusal of the impugned orders passed by both the Courts below, this Court is of the firm view that this writ petition is devoid of any merit. 19. The learned Sub Divisional Magistrate, vide impugned order dated 4.8.2003, has only fixed a date directing both the parties to adduce evidence in accordance with Section 138 Cr.P.C. Section 138(1) of Cr.P.C. is reproduced below: “138. Procedure where he appears to show-cause. (1) If the person against whom an order under Section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons-case.” 20. In view of the above, the impugned order dated 4.8.2003 is clearly an interlocutory order against which a revision is not maintainable. The learned Additional Sessions Judge was also of the same view and he committed no illegality while dismissing the criminal revision filed against the aforesaid order as not maintainable. 21. On a perusal of both the impugned orders, it is clearly evident that both the parties have still full opportunity to lead evidence in support of their respective claims and no prejudice has been caused to any of them. 22. Moreover, whether the disputed land is a public path or a private land is a disputed question of fact, which cannot be adjudicated by this Court while exercising writ jurisdiction. The answer to this question ultimately depends on facts, which would require material evidence to be scrutinized by the trial Court. 23. In the case of Swetamber Sthanakwasi Jain Samiti v. Alleged Committee of Management Sri R.J.I. College Agra, (1996)3 SCC 11 , the Hon’ble Supreme Court has held has under : “There is a consensus of opinion that High Court will not permit this extra-ordinary jurisdiction to be converted into a Civil Court under the ordinary law. When a suit is pending between the two parties, the interim and miscellaneous orders passed by trial Court, against which the remedy of appeal or revision is available, cannot be challenged by way of writ petition under Article 226 of the Constitution.” 24. When a suit is pending between the two parties, the interim and miscellaneous orders passed by trial Court, against which the remedy of appeal or revision is available, cannot be challenged by way of writ petition under Article 226 of the Constitution.” 24. A civil suit is already pending between the parties and both the parties have full opportunity to raise all the contentions available to them not only before the learned Sub Divisional Magistrate but also before the Civil Court. 25. In view of the above discussion, the writ petition stands dismissed. The interim order, if any, stands vacated. 26. Office is directed to send a copy of this order to both the Courts below for further proceedings.