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IN THE HIGH COURT OF CHHATTISGARH
NARENDRA KUMAR VYAS, J.
Deepan Chakarwarti S/o Jagdish Chandra Chakarwarti - Appellant
Versus
Ajay Singh S/o Late Chandra Mohan – Respondent
CRMP No. 476 of 2016
Decided on : 30-11-2021
Criminal Procedure Code, 1973 - Section 145 - Restoration of possession of land - Illegal construction - Procedure where dispute concerning land or water is likely to cause breach of peace - Whether petitioner has been given proper opportunity of hearing to defence his case, in accordance with principle of natural justice or not - Whether application filed by petitioner under Section 145 of Cr.P.C., is maintainable or not before Sub Divisional Magistrate - Whether Sub Divisional Magistrate has followed the procedure prescribed under Section 145 of Cr.P.C. before passing of final order - Petitioner has filed an application under Section 145 of Cr.P.C., contending that he is owner of plot wherein he has constructed old house and on northern side of land owned by the petitioner, land of respondents is situated. It has been contended by the petitioner that when the petitioner was out of station, said structure on his land was illegally demolished by respondents on over about 1 decimal of land and respondents started raising illegal construction.
Finding of the Court :
It is very much clear that Presiding Officer was on official tour and this proceeding was written by Reader of court. The order-sheet of the case would reflect that Revenue Inspector was present for first time for his cross examination and on same day right of the petitioner to cross examine was closed, is nothing but glaring example of violation of principle of natural justice, therefore, on this count alone, order, passed by Sub Divisional Magistrate, is liable to be rejected - Sub Divisional Magistrate after considering report has recorded a finding that the dispute is not of a general nature and there is no possibility of disturbance of peace and tranquillity, as such, there is no justifiable for proceeding further in the matter and accordingly he has rejected application filed by the petitioner under Section 145 of Cr.P.C. Sub Divisional Magistrate without examining the provisions of Section 145 of Cr.P.C., has passed the impugned order, therefore, for better understanding, it is expedient for this court to extract Section 145 of Cr.P.C - Revisional Court has committed further irregularity in dismissing the revision by recording a finding that petitioner should be vigilante and should have appeared on the date of hearing, is perverse and illegal finding as Revisional Court has not examined whether provisions of Section 145 of the Cr.P.C. is applicable to the present facts of the case or not.
Result: CRMP is allowed.
ORDER :
1. The petitioner has filed present Cr.M.P assailing the order dated 1-2-2015 (Annexure A/1) passed by 4th Additional Sessions Judge, Ambikapur, District Sarguja (CG) in Criminal Revision No. 52 of 2015 whereby learned 4th Additional Sessions Judge, Ambikapur while dismissing the revision petition filed by the petitioner affirmed the order dated 18-6-2015 passed by the Sub Divisional Magistrate, Ambikapur District Sarguja in Misc. Criminal Case No. 103 of 2015. The learned Sub Divisional Magistrate, Ambikapur, District Sarguja has rejected the application filed by the petitioner under Section 145 of Cr.P.C. for restoration of possession of disputed land.
2. The brief facts as projected by the petitioner are that the petitioner has filed an application under Section 145 of Cr.P.C., contending that he is the owner of plot bearing khasra No.2836/02 ad-measuring 0.06 acres situated at Sadar Road, Agrasen Chowk, Ambikapur wherein he has constructed old house and on the northern side of the land owned by the petitioner, the land of respondents is situated. It has been contended by the petitioner that when the petitioner was out of station, the said structure on his land was illegally demolished by the respondents on over about 1 decimal of land and the respondents started raising illegal construction.
3. Being aggrieved by the act of the respondents, petitioner filed an application on 20-3-2015 before the Sub Divisional Magistrate, Ambikapur, District Sarguja which was registered as Misc. Criminal Case No. 103 of 2015, mainly contending that the petitioner is having title and possession of the land bearing Khasra No. 2836/02 admeasuring 0.06 acres, situated at Sadar Road Agraasen Chowk, Ambikapur wherein he has also constructed the old house in the north direction of his land wherein the land of the respondents also exists. The respondents have started demolishing the construction of the petitioner while petitioner was busy in the last rites of his younger brother. The respondents started raising illegal construction and when the petitioner came after performing the last rites of his younger brother and made an attempt to prevent the respondents, then the respondents started threatening him and also abused him. Because of the illegal possession done by the respondents and threaten given by them, there was tension near the vicinity which may likely to cause public hindrance, therefore, he has submitted a complaint before the Police Station on 19-3-2015 and the Police had advised him to approach concerned court, thereafter, he has filed the present application. In support of his application he also filed an affidavit and also filed an application for staying the construction work carried out by the respondents.
4. This Court has called for the records of the case from Sub-Divisional Magistrate as well as Revisional Court of Ambikapur and following facts were revealed from record. The Sub Divisional Magistrate has passed preliminary order 20.03.2015 and call for report from Incharge Police Station as well as Patwari Ambikapur, fixed the case on 30-3-2015. The Police authority has submitted its report and thereafter the matter was fixed on 6-4-2015. The Sub Divisional Magistrate has directed to call for the spot inspection report from the Revenue Inspector and fixed the case on 13-4-2015 and thereafter the matter was fixed on 15-4-2015. On 15-4-2015, the Sub Divisional Magistrate heard on preliminary objection raised by the respondents, the counsel for the applicant made prayer that the Revenue Inspector may be called to record his witness and for cross-examination. Learned Sub Divisional Magistrate has directed for appearance of the Revenue Inspector Ashok Singh and fixed the case for his appearance on 20-4-2015. On 20-4-2015, the parties were present, but Revenue Inspector was not present, therefore, the Sub Divisional Magistrate fixed the case on 15-5-2015 for his appearance. On that day hearing was adjourned to 25-5-2015. On 25-
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