Misc. Case No. 1713 of 1991 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.31516 of 2010 ====================================================== Phulmati Devi, wife of Garju Bhagat, resident of Village- Semara Bujurg, P.S. Nautan, District- Siwan. .... .... Petitioner. Versus 1. The State Of Bihar 2. Ramnath Bhagat 3. Ram Lakshan Bhagat 4. Ramakant Bhagat, all are sons of Shiv Pujan Bhagat, all are residents of Village- Semara Bujurg, P.S. Nautan, District- Siwan. .... .... Opposite Parties. ====================================================== CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL ORDER 4 29-10-2013 Heard learned counsels for the petitioner and the State. The present application has been filed for quashing of the order dated 02.09.2009 passed by the learned 3rd Additional District and Sessions Judge, Siwan, in Cr. Rev. 15 of 2008/02 of 2009 whereby the order passed by the learned S.D.M., Siwan in Misc. Case No. 1713 of 1991 was set aside, whereby the opposite parties were directed to remove obstruction within one week from Khata No.53, Plot No. 264, and to give the easementary right on 9 ft. wide road to the petitioner. The case in short is that the petitioner Phulmati Devi filed a petition before the S.D.M., Siwan under Section 147 Cr.P.C. claiming easementary right over the land in question. The petitioner and the opposite parties are the heirs of the common 2
Legal Reasoning
Patna High Court Cr.Misc. No.31516 of 2010 (4) dt.29-10-2013 2 / 8 ancestor, namely, Prasad Koiri who had two sons, namely, Narayan Koiri and Shiv Ratan Koiri. The family of Shiv Ratan Koiri has no concern with the proceeding. Narayan Koiri had three sons, namely, Bahadur, Jangi and Shiv Poojan. Bahadur had a son, namely, Garjoo who died leaving behind his widow, petitioner Phulmati Devi and minor sons. The opposite parties are heirs of Shiv Poojan who died leaving behind three sons, namely, Ramnath, Ram Lakhan and Rama Kant Bhagat who were living separately from the petitioner since the beginning. The further case is that a piece of land under Khata no. 53, Plot no. 264 in village Semra Bujurg was recorded in the name of Prasad Koiri and as per private arrangement, the petitioner has come in actual possession of the north portion of the plot by making cemented residential house towards west and a road (Rasta) from her residential house goes to the village road on Plot no. 258, towards north- east of the above plot no. 264. The residential house of the petitioner was constructed by her husband Garju Bhagat and petitioner has right of easement over the disputed land, as road (Rasta) from her house up to the road of Plot no. 258 but the opposite parties obstructed the said road by erecting brick wall over it and thereby jeopardized 3 Patna High Court Cr.Misc. No.31516 of 2010 (4) dt.29-10-2013 3 / 8 the easementary right of the petitioner. The petitioner initially approached the police and Circle Officer, but when the authority did not take any action then the petitioner filed a petition for initiating a proceeding under Section 147 Cr.P.C. before the S.D.M., Siwan, who called for a report from the police and the Circle Officer, upon which both reported that the road has been blocked. Hence the prayer was made to demolish the brick wall. The Opposite parties appeared and filed written statement showing that the claim of the petitioner is false and there was no exchange of land, rather all share holders came in peaceful possession of their respective shares. The further case of the Opposite parties is that their house is situated on Plot no. 264, since more than thirty years and prior to this they were having a mud house and there is a village road on Plot no. 258 in the eastern side of the house of the Opposite parties and that the police and the administration in collusion with the petitioner, submitted a false report. Considering the rival submissions, the learned S.D.M., Siwan on 10.12.2007 came to the conclusion that the petitioner used Survey Plot no. 4 Patna High Court Cr.Misc. No.31516 of 2010 (4) dt.29-10-2013 4 / 8 264 from the west to east as a road, which has been closed few months back. Hence, the opposite parties were directed to remove a wide obstruction from Survey Plot no. 264, Khata no. 53 within one week, on non-compliance of which, it was directed to be removed by the Court, at the cost of the opposite parties. The order of the learned SDM dated 10.12.2007 was challenged by the opposite parties in Cr. Revision no. 15 of 2008/2 of 2009 which was allowed by the learned 3rd Additional District and Sessions Judge, Siwan mainly on the ground that the learned S.D.M., Siwan failed to get any report under the provision of Section 147(3) Cr.P.C. and passed the order mechanically, when the evidence of the petitioner on record is inconsistent with regard to the obstruction being created and thereby the order dated 10.12.2007 passed by the SDM was set aside. The said order dated 02.09.2009 passed by the learned Additional District & Sessions Judge is the impugned order in the present application. Notices were issued to opposite party no.2 to 4 vide order dated 8.5.2012 but in spite of valid service of notice, none appeared. The provision of Section 147(3) Cr.P.C. reads as follows: “147 Dispute concerning right of use of 5 Patna High Court Cr.Misc. No.31516 of 2010 (4) dt.29-10-2013 5 / 8 land or water - ……. (1)………. (2)………. (3) If it appears to such Magistrate that such rights exist, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right: Provided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the receipt under sub-section (1) of the report of a police officer or other information leading to the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such receipt” From bare perusal of the aforesaid provision, it becomes clear that the Magistrate may pass an order under Section 147(3), if it appears to him that such right concerning the use of land and water exists, he may make an order prohibiting any interference with the exercise of such rights, including in a proper case, an order for the removal of any obstruction in the exercise of any such right. But no such order shall be made, where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the receipt under sub-section (1) of the report of a police officer or other information leading to the institution of the 6 Patna High Court Cr.Misc. No.31516 of 2010 (4) dt.29-10-2013 6 / 8 inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such receipt. Sub-Section (3) of Section 147 Cr.P.C. has been held to be mandatory in the case of Binoga Yadav and 3 others Vs. State of Bihar and 8 others, reported in 1984 PLJR 629. Paragraph 15 of the judgment reads as follows: “The proviso to sub-section (3) of section 147 of the Code is of mandatory nature and in absence of any finding whatsoever, that will strike at the root of the jurisdiction for passing a valid and legal order under section 147 of the Code. Simply a finding that opposite party No. 2 had a right of user is not sufficient in itself from the legal validity point of view unless there is a finding regarding the period of user as contemplated under the proviso to sub-section (3) of section 147 of the Code.” A similar view was taken by this Court in the case of Md. Sarfuddin @ Sarfuddin Mian Vs. Sabir Thakur & Anr. reported in 2006(1) PLJR 190. Paragraph 6 of the judgment reads as follows: “From a bare reading of the proviso it is apparent that there is a vital 7 Patna High Court Cr.Misc. No.31516 of 2010 (4) dt.29-10-2013 7 / 8 interdict on the powers and the jurisdiction of the Magistrate and passing any final order under section 147 Cr.P.C. unless he be satisfied that within three months next of the report of the police officer, the right as alleged had been exercised. The proviso would open with the words “no such order shall be made”. This court in the judgment reported in A.I.R. 1955 Patna 265 relied upon by the petitioner would have noticed that where the right claimed is one which was exercisable at all times of the year, which is the case presently, it was the duty of the learned Magistrate to give a finding to the effect that this right was exercised within three months prior to the date when the learned Magistrate heard the grievances and took action on the allegation by directing an enquiry by the police. The court would have recorded simply that this would be mandatory requirement of law.” This is not in dispute that the learned SDM did not give any finding in terms of Section 147(3) Cr.P.C. which is mandatory in nature. Hence, this court is not inclined to interfere with the order dated 2.9.2009 passed by the learned 3rd Additional District & Sessions Judge, Siwan, but it is expected 8 Patna High Court Cr.Misc. No.31516 of 2010 (4) dt.29-10-2013 8 / 8 from the learned S.D.M., Siwan, to proceed and conclude the proceeding under Section 147 Cr.P.C., in accordance with law after giving specific finding under Section 147(3) of the Code, after due notice to the respective parties with regard to Khata no. 53, Plot no. 264, in M. Case No. 1713 of 1991, within a period of four months from the date of receipt/production of a copy of this order. It is made clear that if the opposite parties choose not to appear within a reasonable time, as they have chosen not to appear before this court, then the learned S.D.M., Siwan, will proceed ex-parte.
Decision
The present application is disposed off with the aforementioned observation/modification. U.K./-/Anil/ (Dinesh Kumar Singh, J)