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2025 DIGILAW 299 (JHR)

Indresh Ojha v. State of Jharkhand

2025-02-06

ANIL KUMAR CHOUDHARY

body2025
JUDGMENT : ANIL KUMAR CHOUDHARY, J. 1. Heard the parties. 2. This Writ Petition (Cr.) under Article 226 of the Constitution of India has been filed with a prayer to quash the order dated 10.05.2023 passed in Miscellaneous Case No.767 of 2013 by the respondent No.4 whereby and where under the respondent No.4 directed the petitioners to remove the obstruction/boundary wall within a period of 15 days from the piece of land appertaining to plot Nos.1371 and 1372 under Khata No.141 situated at village Lalgarh, P.S.-Bishrampur, District-Palamu. 3. The brief fact of the case is that on the basis of the application submitted by the first party, Miscellaneous Case No.767 of 2013 in the court of Executive Magistrate, Sadar, Medininagar was registered under Section 147 of the Cr.P.C. It was contended by the first party to the said proceeding who are the respondent Nos.5 to 7 of this Writ Petition (Cr.) that a public road exists on the disputed land which was used by the members of the first party to the said proceeding which has been blocked by the members of the second party of that proceeding, who are the writ petitioners herein, by constructing a wall over the same. The Executive Magistrate made an order in writing stating the grounds of his being so satisfied as contended by the first party and required the parties to put in their written-statement. The parties put in their written-statement. Vide order dated 20.03.2021, the Executive Magistrate after considering the materials in the record, came to the conclusion that there is no public road on the disputed plot, hence, dismissed the application under Section 147 of the Cr.P.C. On being aggrieved by the order of the Executive Magistrate, the first party to the said proceeding who are respondent Nos.5 to 7 of this Writ Petition (Cr.), preferred Criminal Revision No.50 of 2021 in the court of Sessions Judge, Palamau at Daltonganj which was ultimately heard and disposed of by the learned Additional Sessions Judge-II, Palamau at Daltonganj. The learned Additional Sessions Judge-II, Palamau at Daltonganj found that the Executive Magistrate did not consider the recent survey Khatiyan, as the same was not finally published but on the other hand relied upon the sale-deed in favour of the second party and rent receipt and ignored the report of the concerned police station, wherein the disputed land was shown to be a passage which the second party to the said proceeding promised to vacate in two months and as the order of the Executive Magistrate impugned before it, was not in consonance with law, set aside the order dated 20.03.2021 passed in Miscellaneous Case No.767 of 2013, remitted the case back to the Executive Magistrate for passing a fresh order. 4. It is pertinent to mention here that the said order dated 20.03.2021 passed in Miscellaneous Case No.767 of 2013, has not been challenged by the writ petitioners, hence, the same has attained finality. In this Writ Petition (Cr.) also, the said order dated 21.02.2022 passed in the said Criminal Revision No.50 of 2021 has not been challenged by the writ petitioners. 5. After the case was remitted, the Executive Magistrate, Sadar, on the basis of the evidence in the record, considered that as per the villagers, the ancestors of the first party to the said proceeding used to use the plot Nos.1371 and 1372 as their exit and at present, a temple of Lord Shankar was existing over the plot Nos.1371 and 1372 and also considered that since the undisputed fact remains that the temple of Lord Shankar exists over the plot Nos.1371 and 1372 and because of the wall constructed by the second party the writ petitioners, the entry and exit route of the temple has been obstructed, therefore, directed the writ petitioners being the members of the second party of the said proceeding of Miscellaneous Case No.767 of 2013 to remove the obstruction within fifteen (15) days over the plot Nos.1371 and 1372. 6. Learned counsel for the petitioner submits that the order dated 10.05.2023 passed in the said Miscellaneous Case No.767 of 2013 is illegal, arbitrary, malafide, unreasonable and bad in law. 6. Learned counsel for the petitioner submits that the order dated 10.05.2023 passed in the said Miscellaneous Case No.767 of 2013 is illegal, arbitrary, malafide, unreasonable and bad in law. It is next submitted that the respondent No.4 has committed an illegality by not considering the order dated 20.03.2021 passed in Miscellaneous Case No.767 of 2013 which was set aside by the learned Additional Sessions Judge-II, Palamau at Daltonganj; wherein the Executive Magistrate passed a correct order. It is further submitted that the respondent No.4 has failed to consider that the private respondents of this Writ Petition (Cr.), have no dwelling house near the land in question. It is next submitted that the respondent No.4 failed to consider that the temple constructed over plot Nos.1371 and 1372, has been erected by the private respondents. Hence, it is submitted that the prayer, as prayed for in the instant Writ Petition (Cr.), be allowed. 7. Learned counsel for the respondent-State and the private respondents on the other hand vehemently oppose the prayer of the petitioners made in the instant Writ Petition (Cr.). It is submitted by the learned counsel for the respondents that the contention of the writ petitioners that even though the earlier order dated 20.03.2021 passed by the Executive Magistrate, was set aside; still the same ought to have been relied upon by the respondent No.4, while passing the impugned order, is a fallacious one. It is further submitted that as the earlier order dated 20.03.2021 was set aside by a competent court of law being the learned Additional Sessions Judge-II, Palamau at Daltonganj and the said order of the learned Additional Sessions Judge-II, Palamau at Daltonganj passed in Criminal Revision No.50 of 2021 dated 21.02.2022, having not been challenged, has attained finality, the consequence is that the earlier non est order has become in the eyes of law and had the respondent No.4 relied upon the same and came to the same finding as was passed earlier by, it ignoring the order dated 21.02.2022 passed by the learned Additional Sessions Judge-II, Palamau at Daltonganj in Criminal Revision No.50 of 2021, the respondent No.4 would have committed an illegality. Hence, it is submitted that as the undisputed fact remains that the temple of Lord Shankar exists over the plot Nos.1371 and 1372 and by the construction of the wall by the writ petitioners, the entry and exit to the said temple is obstructed and continuation of such obstruction was likely to cause breach of peace; hence, it is submitted that the respondent No.4 has not committed any illegality. Therefore, it is submitted that this Writ Petition (Cr.), being without any merit, be dismissed. 8. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that Section 147 of the Cr.P.C. does not empower the Magistrate to decide the right of the parties except for the purpose of temporarily keeping the parties at peace. It is also a settled principle of law that an order under Section 147 of the Cr.P.C. declaring a certain party to have the right to use a certain land as a pathway does not fetter the jurisdiction of a civil court. The dispute regarding the rights of user of land or water empowers the Magistrate to pass temporary orders; until the rights of the parties are decided by a civil court. 9. Now, coming to the submissions made by the learned counsel for the petitioner that the respondent No.4 has committed illegality by not considering the earlier order dated 20.03.2021, passed by the Executive Magistrate in the said Miscellaneous Case No.767 of 2013, which was undisputedly set aside by the learned Additional Sessions Judge-II, Palamau at Daltonganj in Criminal Revision No.50 of 2021 by order dated 21.02.2022 is illegal, is concerned, this Court is of the considered view that the said contention of the learned counsel for the petitioner is a fallacious one. 10. The consequence of an order passed by an inferior court, when set aside by the revisional court, is that for all purposes, such an order which is set aside, does not exist. 10. The consequence of an order passed by an inferior court, when set aside by the revisional court, is that for all purposes, such an order which is set aside, does not exist. So, there is no way the Executive Magistrate could have passed the same order as was passed earlier which was set aside by justifying the earlier order to be correct even though the same was expressly set aside by the revisional court; because such an act ought to have been an illegality committed, as there is no way the Executive Magistrate can defy the order of the competent revisional court. 11. As already indicated above, the order passed by the learned Additional Sessions Judge-II, Palamau at Daltonganj in Criminal Revision No.50 of 2021 vide order dated 21.02.2022 is not under challenge, the same has undisputedly attained finality. In the said order, the learned revisional court has taken note of the report submitted by the concerned police station wherein the disputed land has been shown to be a public passage which the writ petitioners promised to vacate in two months. The petitioners also do not challenge such a report having been submitted by the police. 12. When the matter is regarding preventing the breach of peace and exercise of the power under Section 147 of the Cr.P.C., certainly a report submitted by the police officer carries considerable significance, regarding the outcome of the proceeding under Section 147 of the Cr.P.C. There is absolutely no challenge to such report submitted by the police officer in this case. There is no justifiable reason as to why a public servant police officer will make a report favouring any party to a proceeding. The credibility of such a report is enhanced when there is no challenge to such a report. 13. Under such circumstances, this Court is of the considered view that keeping in view the undisputed fact that the temple of Lord Shiva exists on the plot Nos.1371 and 1372 and the entry and exit of the said temple is through the passage over plot Nos.1371 and 1372; which has indisputably blocked by the writ petitioners by constructing a wall, this Court do not find any justification to interfere with the order impugned before this Court passed in Miscellaneous Case No.767 of 2013 vide order dated 10.05.2023. 14. Accordingly, this Writ Petition (Cr.), being without any merit, is dismissed. 15. 14. Accordingly, this Writ Petition (Cr.), being without any merit, is dismissed. 15. In view of disposal of the instant Writ Petition (Cr.), the interim order granted vide order dated 06.02.2024, is vacated. 16. Registry is directed to intimate the court concerned forthwith.