Diwakar Tiwari and Others vs The State of U.P. and Others

M.K. Mittal, J.—This writ petition has been filed for quashing the order dated 21.6.04 passed by Sub Divisional Magistrate, Lalganj, Azamgarh (annexure-2) in case No. 15/11/2004 u/s 133 Cr.P.C. whereby he accepted the report of Naib Tehsildar and made the order passed on 4.11.2003 absolute and further directed the station Officer Mehnajpur for demolition of the illegal construction made on public way and the order dated 8.9.06 passed by Additional Sessions Judge, Court No. 7, Azamgarh, in criminal misc. case No. 41/05 whereby he dismissed the application filed u/s 5 of Limitation Act for condonation of delay in filing the revision against the order dated 21.6.04.

The brief facts of the case are that the petitioners and the contesting respondents are residents of the same village and they have their houses adjacent to each other. The houses of the both parties have been constructed over the abadi land of gaon sabha. The contesting respondents wanted the path through the abadi land of the petitioners because chak of the petitioners is situate just behind the house of the petitioners. There is no chak road or public way in abadi land of the petitioners as well there is no reason or occasion to give a path through abadi land of the petitioners. The contesting respondents do not like to go to their chak through chak road which has been already made in the consolidation proceedings because it is a long way. Due to this reason, the contesting respondents forcibly wanted to make the path through the abadi land of the petitioners to their chaks and for this purpose they forged and manipulated the grounds and filed a civil suit No. 1095/03, Umesh Chandra Tiwari and Ors. v. Diwakar Tiwari and Ors. in the court of Civil Judge (JD) Haveli, Azamgarh. The suit is still pending but, since no interim order was passed, the respondents, concealing the pendency of this case, filed a case No. 15/11 of 2004 u/s 133 Cr.P.C. Vijay Shanker v. Diwakar Tiwari and Ors. in the court of Sub-Divisional Magistrate Lalganj, Azamgarh.

According to the respondents the property in dispute in suit No. 1095/03 and case u/s 13 Cr.P.C. is different. In the proceedings u/s 133 Cr.P.C., the respondents have sought the relief of restraining the petitioners from constructing the wall etc. over the chak road. It is a public path. But in suit No. 1095/03 the land situate towards west of the petitioners house is in dispute. The respondents claim that the land towards west of their house has settled in them u/s 9 of the Z.A. Act. There is no illegality in the order dated 21.6.04 and the learned Revisional Judge has rightly dismissed the revision as time barred and writ petition is devoid of merits and is liable to be dismissed.

The learned Magistrate called for the report from the concerned official and passed ex-pate order dated 21.6.04 directing the Station Officer, Mahnajpur to remove any type of construction raised on the so called chak road.

The contention of the learned Counsel for petitioners is that there is no chak road at the place as alleged by the respondents and they have not made any construction on the chak road. When the petitioners came to know about this order dated 21.6.04 on 10.5.05, they filed an application for setting aside that order. However, they were also advised to file a criminal revision and they preferred a criminal revision No. 41/05 before additional Sessions Judge and the same has been rejected by order dated 8.9.2006 as time barred.

According to the petitioners when a civil suit was pending in the court of Civil Judge in respect of the same property in dispute, learned Magistrate should not have passed any order u/s 133 Cr.P.C. The order dated 21.6.04 passed by respondent No. 2 is illegal as no construction has been made on the chak road and there is no question of its removal. The Station Officer, Mahnajpur after enquiring the matter filed a report dated 3.7.04 to the effect that there was no encroachment. The petitioners are in possession over the land where they have made construction prior to the abolition of zamindari and that land has settled in them u/s 9 of the Zamindari Abolition Act. The petitioners are not interfering in the possession of the respondents since there is no chak road. There was no question of any demolition. The respondents concealed the correct fact and obtained the order and that order dated 21.6.04 is liable to be set aside.

The contention of the learned Counsel for the petitioners is that there is no chak road at the disputed place as alleged in the petition u/s 133 Cr.P.C. and learned Magistrate without giving any finding regarding the existing of chak road, has passed the impugned order which is not legal. According to the impugned order, the preliminary order was passed on 30.10.03 on the basis of report submitted by Naib Tehsildar and the objection in that case filed on behalf of Diwakar Tiwari on 13.4.04 was dismissed for non-prosecution on 15.6.04.

The learned Magistrate heard the argument of the learned Counsel for the plaintiff and perused the report of Naib Tehsildar and passed the impugned order *making it absolute. In the impugned order the learned Magistrate has not recorded any finding that the constructions have been made in chak road or where the disputed chak road is situate. Learned Magistrate has not given any measurements or specifications of the construction which he directed to be demolished. In this circumstances, the impugned order is very vague and cannot be said to be legal as it is not executable.

Learned Counsel for the petitioners have contended that the same property is in dispute in the civil suit No. 1095 of 2003 Umesh Chandra Tiwari and Anr. v. Diwakar Tiwari and Ors. He has also contended that land towards the west of their houses has settled in them u/s 9 of Z.A. Act and if the land in front of the house of the respondent (plaintiff in suit No. 1095/03) has settled in them as claimed by them in paragraph No. 4, then why the land in front of the petitioners'' house could not settle in them. This contention has force. The respondents have concealed the fact of filing civil suit while giving application u/s 133 Cr.P.C. and this fact is also material. In the circumstances, I come to the conclusion that the impugned order dated 21.6.04 cannot be said to be legal and is liable to be set aside and the writ petition is to be allowed.

The writ petition is hereby allowed. The order dated 21.6.04 passed by Sub Divisional Magistrate, Lalganj and the consequent order dated 8th September 2006 passed by Additional Sessions Judge are hereby set aside. The learned Magistrate is directed to give an opportunity to the parties to lead their evidence and to decide the matter u/s 133 Cr.P.C. according to law expeditiously preferably within 3 months from the date, a copy is filed before him. Learned Magistrate shall give findings supported with reasons whether chak road exists at the place as alleged by the respondents and whether any unauthorised constructions have been made by the petitioners in that chak road. If the finding of any constructions having been made is recorded, he shall specify the portion of the unauthorised construction that needs demolition. If the learned Magistrate finds that the land in dispute in case u/s 133 Cr.P.C. is not chak road then he shall direct the parties to get their dispute decided by the civil court in case No. 1095/03 if it is with regard to the same land as is involved in case u/s 133 Cr.P.C.