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Gujarat High Court · body

2019 DIGILAW 173 (GUJ)

Jayantilal Ratilal Jadav v. State of Gujarat

2019-02-27

A.S.SUPEHIA

body2019
JUDGMENT : 1. The present writ petition has been filed by the petitioner under Section 482 of the Code of Criminal Procedure, 1973 (“Code” for short) seeking quashing and setting aside the impugned order dated 26.05.2017, passed by the Executive Magistrate, Khambhat, Dist:Anand in Case No.1 of 2017 and direction to the respondent authorities to restore the position by reconstructing the wall and fencing of Plot Nos.B25 and B26 of Guru Krupa Society, Khambhat, Dist:Anand of the petitioner. 2. Rule. Ms.Moxa Thakker, learned Additional Public Prosecutor for the respondent-State waives service of notice of Rule for the respective respondents. 3. The brief facts leading to filing of the present petition are as under: 3.1 The petitioner is the owner of the land being Plot No.B25 and Plot No.B26 of Revenue Survey No.270/1/p situated at Khambhat, Dist:Anand. 3.2 The Guru Krupa Society is in existence since number of years on the aforesaid revenue survey number. 3.3 On 15.05.2017, the private respondent herein filed one application dated 15.05.2017 purportedly under Sections 145 and 133 of the Code, inter alia stating that the road which is used in the said society has been obstructed by the petitioner and the said road is used by the residents of the society since number of years and due to the said reason, the residents are facing the difficulties for passing through the society and hence, the said application is filed for removing such obstruction. 3.4 The Executive Magistrate has passed order that the residents of the land behind plot nos.B25 and B26 on Revenue Survey No.270/1 of Guru Krupa Society have been using the said private land as a road, and, therefore, with regard to the possession of the said private land the Civil Court has the jurisdiction, but with a view to avoid any breach of peace, the possession of the said private land is handed over to the liquidator of Guru Krupa Society and the liquidator is directed to do the procedure regarding the use of the said land in coordination with the Chief Officer of Khambhat Nagarpalika. 4. Mr.Majmudar, learned advocate for the petitioner has submitted that the petitioner is the owner of the land being Plot No.B25 and Plot No.B26 of Revenue Survey No.270/1/p situated at Khambhat, Dist:Anand. It is submitted that Guru Krupa Society is in existence since number of years on the aforesaid revenue survey number. 4. Mr.Majmudar, learned advocate for the petitioner has submitted that the petitioner is the owner of the land being Plot No.B25 and Plot No.B26 of Revenue Survey No.270/1/p situated at Khambhat, Dist:Anand. It is submitted that Guru Krupa Society is in existence since number of years on the aforesaid revenue survey number. On 15.05.2017, the private respondent herein filed one application dated 15.05.2017 purportedly under Sections 145 and 133 of the Code, wherein it is inter alia his case that the road which is used in the said society has been obstructed by the petitioner and the said road is used by the residents of the society since number of years and due to the said reason, the residents are facing the difficulties for passing through the society and hence, the said application is filed for removing such obstruction. 4.1 Learned advocate for the petitioner has placed reliance on one report dated 16.05.2017, prepared by the respondent-Police Inspector and which was supplied to the Executive Magistrate, Khambhat, stating inter alia that the relevant documents are not produced such as N.A., layout plan etc. and the road has been blocked and 104 residents do not have any alternative way since there is apprehension of breach of peace. 4.2 Learned advocate for the petitioner has further submitted that the petitioner had also given his statement on 15.05.2017 to the concerned Police Officer, stating, inter alia, that he has not caused any obstruction by construction of wall and the wall is constructed on the plot of the ownership of the petitioner. 4.3 Learned advocate for the petitioner has further submitted that the petitioner has asked for certified map of the aforesaid society from the competent authority pursuant to which the petitioner was asked to get approved plan from the Office of the Deputy Town Planner, Nadiad, vide communication dated 19.05.2017 of the Deputy Collector, Khambhat and the petitioner is running from pillar to post for getting map from the Town Planner, Nadiad as well as from the various authorities in spite of which the petitioner is not provided the map. 4.4 Learned advocate for the petitioner has further submitted that the order is absolutely illegal and without jurisdiction since the Executive Magistrate while exercising the power under Section 145 of the Code cannot hand over the possession to the Liquidator of the Society. 4.4 Learned advocate for the petitioner has further submitted that the order is absolutely illegal and without jurisdiction since the Executive Magistrate while exercising the power under Section 145 of the Code cannot hand over the possession to the Liquidator of the Society. He has submitted that the Executive Magistrate has clearly overstepped his jurisdiction and because of the impugned order, the wall constructed by the petitioner has already been demolished on 27.05.2017 by the officers of the Nagarpalika with the aid the police personnel and in presence of Liquidator. Thus, he has submitted that right, title and interest of the disputed land can only be asserted in the impugned civil proceedings and the Executive Magistrate has handed over the possession of the such land to the Office of the Liquidator. 5. I have heard learned advocate for the respective parties and also perused the documents, as pointed out by them. 5.1 Though the notice is served to the respondent nos.3 and 4, they have chosen not to remain present before this Court either in person or through an advocate. 5.2 It is not in dispute that the learned Executive Magistrate after exercising the powers under Section 145 by holding an inquiry has passed an order under section 147 of the Code and has handed over the possession of the road to the Official Liquidator of the Guru krupa Society. Section 147 of the Code reads as under: “SECTION 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 user 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 of their respective claims. Explanation. The expression "land or water" has the meaning given to it in subsection (2) of section 145. Explanation. The expression "land or water" has the meaning given to it in subsection (2) of section 145. (2) The Magistrate shall then peruse the statements so put in, hear the parties, receive 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) If it appears to such Magistrate that such rights exist, he may make an order prohibiting any 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 subsection (1) of section 145 the Magistrate finds that the dispute is as regards an alleged right of user of land or water, he may, after recording his reasons, continue with the proceedings as if they had been commenced under subsection (1); and when in any proceedings commenced under subsection (1) the Magistrate finds that the dispute should be dealt with under section 145, he may, after recording his reasons, continue with the proceedings as if they had been commenced under subsection (1) of section 145.” 6. In the considered opinion of this Court, such an exercise is nonest and void abinitio since the Executive Magistrate has no jurisdiction to pass such order while exercising the power under Section 145 of the Code by which he can hand over the possession of the land to the Official Liquidator. In the considered opinion of this Court, such an exercise is nonest and void abinitio since the Executive Magistrate has no jurisdiction to pass such order while exercising the power under Section 145 of the Code by which he can hand over the possession of the land to the Official Liquidator. The provisions of section 145 of the Code confer him powers to pass appropriate orders after taking evidence, decide whether the right exists and he may make an order prohibiting any 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 if there is a dispute which is likely to cause a breach of the peace. Thus, there is no power vested in him in handing over the possession of any land to any party. The possession of a land can only be handed over to the concerned party after such right is ascertained in appropriate civil proceedings. Thus, by passing the impugned order dated 26.05.2017, the learned Executive Magistrate, Khambhat, Dist:Anand has overstepped his jurisdiction and hence, the same is liable to be quashed and set aside and the same is hereby quashed and set aside. The present petition stands disposed of, accordingly. Rule is made absolute. Direct service is permitted.