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2019 Supreme(All) 2390
IN THE HIGH COURT OF ALLAHABAD
KARUNA NAND BAJPAYEE, J.
Om Prakash Pandey – Appellant
Versus
State of U.P. and Ors. – Respondents
Criminal Revision No. 685 of 2019
Decided On : 10-07-2019
Advocate Appeared:
For the Appellant : Vimlendu Tripathi
For the Respondents: A.G.A. and Himanshu Pandey
The judgment established the importance of reliable evidence in proceedings under Section 133 of the Criminal Procedure Code and emphasized the need for proper justification and reasoning in the exercise of authority by the Executive Magistrate.
Headnote:
Public Nuisance - Criminal Procedure Code - Section 133 (1) - 1, 3, 4, 5, 8, 9, 10, 11, 12, 13, 137, 138, 139, 140, 141, 142, 143 - The court discussed the legal provisions under Section 133 of the Criminal Procedure Code and emphasized the need for reliable evidence in support of denial of public right. The judgment highlighted the summary nature of proceedings under Section 133 and the requirement for the Executive Magistrate to stay the proceedings if there is reliable evidence in support of denial of public right. The court also emphasized the importance of considering the entry in Government records regarding the land or passage in question. The judgment further discussed the procedure for removal of unlawful obstruction or nuisance and the consequences of disobedience.
Fact of the Case:
The revisionist claimed ownership of land purchased through registered sale-deeds and raised a boundary wall. A complaint was filed alleging encroachment on a public passage, leading to the impugned order for removal of the boundary wall.
Finding of the Court:
The court found that the impugned order lacked good reasoning and justification, and the denial of public right by the revisionist was supported by reliable evidence. The court also noted the absence of proper procedure for removal of the obstruction.
Issues: The issues involved the ownership of the land, existence of a public passage, and the validity of the impugned order for removal of the boundary wall.
Ratio Decidendi: The court emphasized the need for reliable evidence in support of denial of public right and highlighted the summary nature of proceedings under Section 133. The judgment also discussed the procedure for removal of unlawful obstruction or nuisance and the consequences of disobedience.
Final Decision: The impugned order was set aside, and the revision was allowed.
JUDGMENT :
Karuna Nand Bajpayee, J.
1. This criminal revision has been preferred against the impugned order dated 11.1.2019 passed by the City Magistrate, Gorakhpur under Section 133 (1) of Cr.P.C. in Case No. D201805310000230 of 2017 (Mohd. Salim v. Om Prakash Pandey), P.S.-Cantt., District-Gorakhpur.
2. Matter was taken up on 15.2.2019 by the preceding bench of this Court and the effect and operation of order dated 11.1.2019 passed by the City Magistrate was stayed until further orders. It was also specifically directed that status-quo with regard to nature of possession of land shall also be maintained. Certain directions were also given to the District Magistrate with regard to immediate measurement of the spot in question. Subsequently on 13.3.2019 Shri Himanshu Pandey, Advocate appeared on behalf of opposite party No. 2. Matter was thereafter listed to come up on 3rd April, 2019 with the direction to learned A.G.A. to file counter-affidavit. Later on case was again taken up on 31.4.2019 and the compliance report about the directions issued by this Court was filed on behalf of State. Matter was fixed up for final disposal on 17th April, 2019 and last opportunity to file counter-affidavit was given to opposite party. Rejoinder affidavit if any, was also directed to be filed in the meantime. It further transpires that a listing application was moved to list the matter earlier as a result of which the matter was fixed up for today. The same has thus come up before this Bench and been taken up today by the court.
3. Learned counsel appearing on behalf of revisionist at the very outset has submitted that despite the stay orders of this Court, the boundary wall in question has been demolished in complete violation of the court's direction and not only a gross defiance of the order has been done but the authorities have acted in contempt of the same and a contempt application has already been moved before the appropriate bench of this Court in that regard. The urgency of the matter was placed before the court.
4. On the query raised by the court, learned A.G.A. as well as learned counsel appearing for opposite party No. 2 have submitted that so far no counter-affidavit has been filed. Some further time in that regard has once again been sought. This Court in the circumstances of the case feels that the matter was initially taken up on 15.2.2019 and since then sufficient time has been there to file counter-affidavit. Last opportunity has already been given. This Court does not see any good justification to give further time for that purpose in the circumstance of the case. The matter has already been fixed for final disposal by the preceding Bench.
5. While going through the record of the case in hand, this Court has the occasion to go through the orders of this Court passed by the preceding Bench presided by Hon'ble Ajit Kumar, J. whereby not only precise and detailed directions have been given regarding the measurement of the land in question but after receiving the compliance report sent on behalf of the District Magistrate and after going through the same, the court had proceeded to make pithy observations of significance regarding the lackadaisical manner in which the concerned authorities have acted in this matter. It would not be out of place to quote the order passed by the preceding Bench on 3.4.2019, which reads thus:
"1. This Criminal Revision is directed against the order dated 11th January, 2019 passed by the City Magistrate, Gorakhpur, directing for removal of the boundary wall of the present applicant to the North of the graveyard on account of it being a public passage.
2. The grievance raised in the revision petition is that the revenue records were not examined by the City Magistrate and in exercise of the power which is quasi-judicial in nature. The City Magistrate, therefore, overlooking the records directed for removal of constructions, as if the constructions had resulted in public nuisance causing blockade of a pub
