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2018 DIGILAW 394 (ORI)

Principal, Karanjia College v. State of Odisha

2018-04-10

J.P.DAS

body2018
JUDGMENT : J.P.Das, J This is an application under Section 482 of the Code of Criminal Procedure with a prayer to quash the judgment dated 24.01.2014 passed by learned Additional Sessions Judge, Baripada in Criminal Revision No.28/17 of 2013-12 confirming the order dated 12.06.2012 passed by the learned Executive Magistrate, Panchpir, Karanjia in C.M.C. No.204 of 2009 under Section 133 of the Code of Criminal Procedure directing to remove the blockades constructed by the present petitioner on the road used by the public. The present petitioner is the Principal of Karanjia College within the premises of which, the public road allegedly existed connecting to P.W.D Roads. The opposite parties are the general public who initiated the proceeding first, filing a report before the concerned police station alleging that there was a connecting link road through the college premises on its eastern side up to Karanjia P.W.D. road for use of general public and college students as well. In the year 1985 the N.A.C of Karanjia with due consent of the college authority had constructed a morrum road and maintained the same for use of the general public. The consent of the college authority was according to a resolution passed by its governing body dated 08.04.1985. They alleged that till February 2009 there was no disturbance in using the road by the general public, but on 08.02.2009 the Principal of the College closed the road constructing a wall and fixed an iron gate causing unlawful obstruction on the road measuring 270 ft. in length 22 ft. in breadth. Hence, they prayed for necessary action. Since the Police was unable to take action, they moved before the learned Sub-divisional Magistrate, Panchpir, Karanjia for initiation of a proceeding under Section 133 Cr.P.C. which was subsequently transferred to the learned Executive Magistrate, Panchpir, Karanjia for disposal according to law. 2. The learned Executive Magistrate issued notice to show-cause and after appearance, the evidence was adduced on behalf of both the sides. Considering the oral as well as documentary evidence placed before the court, the learned Executive Magistrate came to a conclusion that there existed a public road which has been unauthorisedly obstructed by the Principal of the college thereby causing public nuisance and accordingly by order dated 12.06.2012, directed that the illegal construction of wall/iron gate over plot no.1972 appertaining to Khata No.419 of village Ankura measuring an area 270 ft. in length and 22 ft. in breadth approximately be removed forthwith. He further directed that unless such removal is made by the Principal of the college within a month of passing of the order, the N.A.C. Authority would remove the same. 3. The Principal of Karanjia College, the present petitioner filed a Criminal Revision before the learned Additional Sessions Judge, Baripada in Criminal Revision No.28/17 of 2013-12 assailing the said order of the learned Executive Magistrate. The learned Additional Sessions Judge, Baripada considered the submissions made on behalf of both the parties and came to the conclusion that there was absolutely no illegality or infirmity in the order of the learned Executive Magistrate who has rightly directed for removal of the obstruction on the passage used by the general public and accordingly dismissed the revision. 4. It was submitted by learned Senior Counsel appearing for the petitioner that both the courts below have failed to appreciate the position and the specific submissions made on behalf of the college that the road was earlier used by the general public for convenience, but subsequently with expansion of the college campus some ladies hostel has been constructed and permitting the general public to pass through the campus of the college would affect safety and security of hostel inmates besides disturbing the college affairs. It was also submitted that the general public has alternative passage and connecting roads and hence, closure of the passage through the college campus would no way cause inconvenience. It was also submitted that closure of the passage for the interest of the college and its students can never be said a public nuisance so as to be directed for removal in exercise of the powers under Section 133 of the Cr.P.C. by an Executive Court. It was also submitted that as per settled position of law, the proceeding under Section 133, Cr.P.C. is more in the nature of civil proceeding and the learned Executive Magistrate could not have held that the general public has right of passage over the land admittedly belonging to the college authorities. It was also submitted that a civil proceeding has been initiated and the matter is sub-judice. 5. It was also submitted that a civil proceeding has been initiated and the matter is sub-judice. 5. It was submitted by the learned counsel for the opposite parties that the present application has become infructuous since after final decision of the learned revisional court, the eviction process of illegal construction of the college boundary and gate has already been completed since 12.05.2016. It was further submitted that the public passage existed since 1985 with due approval of the college authorities and the said public road was regularly maintained by the N.A.C Authorities. But, all of a sudden, it was closed by the College Authorities in 2009 causing serious inconvenience to the general public. Hence, it was submitted that the impugned orders have been rightly passed. It was further submitted that the present petitioner has filed C.S. No. 132 of 2016 which is pending before the learned Senior Civil Judge, Karanjia where the rights and interest of both the parties will be finally decided. It was also submitted and placed that in an interim application moved by the present petitioner in the said suit vide I.A No.20 of 2016, the learned Civil Court has refused to grant temporary injunction prayed for by the petitioner plaintiff by order dated 25.11.2017. Thus, it was submitted that since the matter is sub-judice before the appropriate civil court, it would be inappropriate to consider modification of the order passed and confirmed under Section 133 of the Cr.P.C., more so in the circumstances that the alleged obstruction has already been removed and a competent civil court has refused to grant any temporary injunction. 6. The factual positions are not disputed on behalf of the petitioner. In view of the admitted fact that the matter is pending before a competent civil court to finally decide the rights and interest of the parties, I am of the considered view that to express any opinion in that regard in the present forum would be uncalled for. The contentions as raised on behalf of both the sides as to the right of passage, convenience of the college students and inconvenience caused to the public apart from the legal aspects will be taken care of by the competent civil court in seisin over the matter. The contentions as raised on behalf of both the sides as to the right of passage, convenience of the college students and inconvenience caused to the public apart from the legal aspects will be taken care of by the competent civil court in seisin over the matter. Accordingly, without expressing any opinion on the merits of the contentions made on behalf of the parties this application is disposed of with the observation that the parties will be bound by final decision of the competent civil court. The CRLMC is disposed of accordingly.