Raja Chamuah vs State of Assam

This criminal petition has been preferred by the petitioner/1st party Raja Chamuah against the judgment and order dated 14.03.2016 passed by the

learned Sessions Judge ,Lakhimpur in Crl. Revision No. 26(4)2016 where by the learned Judge affirmed the judgment and order dated 12.10.2015

passed by the learned Sub-Divisional Magistrate , Dhakuakhana in Case No. 2/2015 u/s 107 Cr.P.C. refusing to proceed with the case under section

133 Cr. P.C. and asked the parties to maintain peace and tranquility in the locality.

The material facts, which have led to the making of the present criminal petition may be set out as follows-

A proceeding was drawn up under section 107 Cr.P.C. by the Sub-Divisional Magistrate, Dhakuakhana on the basis of a police report received

from Dhakuakhana P.S. in connection with one Non-FIR case No.01/2015 wherein complain was filed by the present petitioner Raja Chamuah

apprehending the breach of peace in their locality as, the dispute arises regarding the closure of a road on 03.01.2015 by Sri Lakhya Chamuah,

Kaushal Chamuah and Dipak Chamuah (respondent herein). As per the police report the disputed land had been using by the petitioner and three/four

other families of that locality as a road prior to 03.01.2015 and on 03.01.2015 the opposites parties have closed the road and thereby creating

obstruction to the petitioner and other three/four families and there was apprehension of breach of peace in the locality and submitted to draw up a

proceeding under section 107 Cr.P.C. Thereafter on 13.01.2015 some persons namely Rohini Chamuah, Bijoy Chamuah both sons of Lekhan

Chamuah, Pinku Chamuah and Gyandeep Chamuah both sons of Snjib Chamuah submitted a complain before the Deputy Commissioner, Lakhimpur

alleging about the closure of the said road by Lakhya Chamuah, Kaushal Chamuah and Dipak Chamuah and prayed to draw up a proceeding under

section 133 Cr.P.C. and the same was endorsed to the Sub-Divisional Officer ,Dhakuakhana for taking necessary steps.

Accordingly, notice was issued to both the parties and recorded the evidence of witnesses. The first party examined three witnesses and the

opposite party also examined four witnesses. After hearing both the sides, the learned SDM, Dhakuakhana comes to the findings that the D/L is a

private land as per land record, which is situated on a part of land covered by Dag No.305 of PP No.46 of Ghatapara map under Machkhowa Mouza,

as such the section 133 Cr.P.C. is not applicable and asked the parties to maintain peace and tranquility in the locality under section 107 Cr.P.C. vide

order dated 12.10.2015 in case No. 2/2015.

Being aggrieved and dissatisfied with the order of the learned SDM, Dhakuakhana , the present petitioner preferred a revision before the learned

Sessions Judge, Lakhimpur which was also dismissed by order dated 14.03.2016 Now the present petition has been preferred challenging the findings

of the Ld. revisional court dated 14.03.2016 in criminal petition No. 26(4) 2016.

I have heard argument of learned counsel for petitioner and the learned counsel for the state but none appears for the respondents.

During the course of hearing learned counsel for the petitioner Mr. P. Buragohain has contended that the learned court below committed great

irregularity/illegality in passing the impugned order dated 14.03.2016 both the facts and as well as in law and as such the same is bad in law and liable

to be quashed and set aside.

On the next it is contended that the public road in question come into existence in the year of 1971 and it is established fact that the same road being

used by the local community at large including both the parties. The learned counsel for the petitioner has submitted that the impugned order passed by

the court below is absolutely illegal and cannot be sustained in the eye of law. It is also submitted that the report submitted by the police indicates the

land in question was being used as a public way and as such there was no occasion for rejecting the application under section 133 CrPC. Moreover,

existence of the alternative road is not bar for not removing the public nuisance. Further it contends only because the road is not shown in the official

document as a public road in the municipal records, it shall make not any difference, in as much as it has been found that the road is being used by the

people of the locality for which the same has acquired a public character, even if it is not the public road the same cannot be obstructed by the

opposite party.

Heard Mr. Kalita , learned Addl. P.P. for the state/respondent according to him the order passed by the court calls for no interference as it is a well

reasoned order appreciating the oral as well as documentary evidence.

From perusal of the impugned order it appears that the both the parties adduced evidence in support of the respective claims and it emerges from

the matters on record that the land in question was used as a path prior to the construction of new road in 2012-2013 under the MNREGA Scheme by

the Panchyat and Rural Development Department . The learned SDM,Dhakuakhana also observed the disputed land is a private land as per Land

Record i.e. Jamabandi and Chitha and a part of the land covered by Dag No.305 of P P No.46 of Ghatapara .under Machkhowa mouza.

From the evidence it also appears that the road in question was constructed by the 2nd party on their land to go to their paddy field which was also

used by the 1st party and other four families but they are not parties to the complain submitted by the 1st party. As appears from the evidence of

P.W.2 who is one of the complainant and the father of the P.W.1, that there is no existence of the disputed road in the old map. From the evidence of

P.W.1 it is found that they have alternate road to their residence and the 2nd party have sacrificed some land for construction of the new road and all

the five families can use the new road for their ingress and aggress.

D.W. 2 Dipak Chamua who is one of the opposite party of the proceeding also not denied about the existence of the old road. But as per his

version as they have sacrificed some land for the new road for which land is reduced hence they have closed the old road.

In the backdrop of the facts, it is to be seen whether the petitioner has the right of way on the disputed road in question and whether a proceeding

under section 133 Cr.P.C. is tenable /maintainable in the eye of law.

Let us reproduce some relevant portion of the order of the learned Trial Court as below: “ The D/L (i:e is the disputed land) is a private land as

per the land record (i:e Jammabandi and Chitha) as per the land record the disputed land is situated on a part of the land covered by 305 of periodic

Patta No. 46 of Ghatapara Map under Machkhowa Mouza, which reveals Section 133 CrPC is not applicable in this proceeding. Hence the case is to

be prosecuted under section 107 CrPC and as per the police report, it is found that there was apprehension of breach of peace in the locality.

………………………… It reveals from the statement of the witnesses or prosecution side that the road was used by the 1st party as well as the

2nd party also. The alternate I:e the road new road was constructed in the year 2012-13 under MGNREGA by the Panchayat and Rural Development

and after construction of the new road the disputed land has been closed by the 2nd party resulting problem to the 1st party. On the other hand, from

the statement of the defence side it is found that disputed road is constructed by the 2nd party on private land belong to the 2nd party to go to their

paddy filed, from the construction of the disputed road, the 2nd party made it free to use for all till 03.01.2015. But after 3 years opening the

alternative road which is very suitable for the 1st party, the disputed road was closed by the 2nd party.â€​ The section 133 Cr.P.C. reads as follows-

“Section 133. Conditional order for removal of nuisance-(1) Whenever a District Magistrate or Sub-divisional Magistrate or any other Executive

specially empowered in this behalf by the State Government ,on receiving the report of a police officer or other information and on taking such

evidence(if any)as he thinks fit, considers-

(a)that any unlawful obstruction or nuisance should be removed from any public place or from any way ,river or channel which is or may be lawfully

used by public; or

(b)……………………………………………………………………………..c,

…………………………………………………………………………………………………………………………………

…………………………………………………………………………………………………………………â€​

Thus from the plain reading of the section shows that the section 133 Cr.P.C. comes into play only when there is unlawful obstruction or nuisance

on the way. If the obstruction is lawful no proceeding under section 133 of CrPC can be maintained. In the present case, the public had no access to

the premises in question and it was included in the private land, and this lead us to a question whether the respondents had the right to use the

premises by a right, either by admission, uses or otherwise and whether a proceeding under section 133 Cr.P.C is maintainable in the eye of law?

Accordingly, a proceeding under section 133 Cr.P.C. can be drawn only when there is an unlawful obstruction on the way and it is not necessary

that the disputed road/land must belong to the Government or to Public. In such a proceeding it is required to establish that the public of the locality has

the right to access to that of the private road and that the obstruction was unlawful. If the obstruction was not unlawful ,the provision of section 133

Cr.P.C. is not attracted.

In the present case from the evidence it appears that the path in question was constructed by the opposite party on their land for their convenience

to go to the paddy field. The 1st party and other four family of the locality also used that same to go to their house and not by the public at large. But

as the new road is constructed ,the opposite party closed the road which was constructed by them over their land as required for their use. From the

evidence it also appears that the opposite parties have sacrificed their land for the new road. There appeared no evidence of access to the land by the

persons at large at the locality by a right, admission uses or otherwise. Admittedly the land is shown as a private land in the Govt. record like Chitha

and Jammabandi. In view of the matter this court is considered view that obstruction if any cannot be said to be an unlawful one and as such provision

of section 133 CrPC have no application on the land in question. The learned trial court as well as the revisonal court has rightly decide the matter that

only the provision of section 107 CrPC is applicable in the facts situation.

Consequently I find no any illegality and or irregularity in the impugned order passed by the revisional court which has upheld the order of the court

below. I find no any merit in the application and same is accordingly dismissed.

Return the LCR along with a copy of this judgment to the court below.