Birsa Agricultural University, Kanke, Ranchi, through its Registrar Narendra Kudada v. 1. The State of Jharkhand 2
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 312 of 2014 Birsa Agricultural University, Kanke, Ranchi, through its Registrar Narendra Kudada ..... … Petitioner Versus 1. The State of Jharkhand 2. Smt. Kishore Devi 3. Mantu Raj 4. Seetu Raj -------- ..... … Opposite Parties CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner For the State For the O.P. Nos. 2 & 3 ------ : : : : ------
Legal Reasoning
Mr. P.P.N. Roy, Sr. Advocate. Mr. A. Allam, Sr. Advocate. Mrs. Kumari Rashmi, A.P.P. Mr. S.B. Deo, Advocate. 11/ 12.01.2024 The notice upon the O.P. No. 4 has been effected, however, O.P. No. 4 has not appeared, that’s why this petition is being heard in his absence. 2. Heard Mr. P.P.N. Roy, learned senior counsel appearing for the petitioner, Mrs. Kumari Rashmi learned A.P.P. appearing for the State and Mr. S.B. Deo, learned counsel appearing for the O.P. Nos. 2 & 3. 3. This petition has been filed for quashing of the order dated 27.09.2013, passed in Case No. M-582/2004 under Section 147 Cr.P.C., whereby the status quo has been granted by the learned Executive Magistrate, Sadar, Ranchi with regard to the use of the land. 4. The matter was admitted and the stay was granted by the co-ordinate bench of this court and during the pendency of the present petition, the learned Executive Magistrate has passed further order dated 23.02.2022, under Section 147 Cr.P.C., which was challenged by way of filing the I.A. No. 10490 of 2023 and the said I.A. was allowed by order dated 23.11.2023 on a cost of Rs. 5,000/- to be paid to learned counsel for the opposite parties, thus, the order dated 23.02.2022 is also under challenge in the present case. 5. Mr. P.P.N. Roy, learned senior counsel appearing for the petitioner submits that the Birsa Agricultural University is an institution which runs three faculties namely Agriculture, Forestry -2- and Veterinary. He submits that the said institution required a huge land for the research work in agriculture, forestry and veterinary. He further submits that the said land was acquired by the Government. He submits that some villagers has constructed their houses south to the boundary wall of the Birsa Agricultural University and called in the name of Mohalla Situ. He further submits that the University has its boundary wall for the last several decades, but when the chaukidars were not on round, day by day some bricks were stolen by breaking the boundary wall by the villagers and by passing few months, the villagers made a place for ingress and outgress from a broken portion of the boundary wall and started using it as an easy approach path from the house to the link road, Birsa Agricultural University, Ranchi through the University, before construction of its boundary wall. He further submits that access to the approach path from Veterinary and Headquarter Link Road is already there, however, to make a shorter road, have broken the wall and have started using a portion of broken boundary wall as on approach road by the villagers. 6. Learned senior counsel further submits that on the above background, the dispute is there and by order dated 13.07.2014, the learned Sub-Divisional Magistrate, Ranchi, drew proceeding under Section 144 Cr.P.C. on the basis of the report of the Officer In-Charge, Kanke in Non-FIR case No. 04/2004 and was registered as M-582/2004. He further submits that the opposite parties have constructed the house after the year 1995, whereas the land in question was acquired by the Government in the year 1956-57. He further submits that by order dated 02.01.2012, the then Executive Magistrate has been pleased to dismiss the said application holding that there is alternative road to the opposite parties to go to the link road. He submits that the order was passed after considering the evidence led on behalf of the parties. He further submits that the said order was challenged in Cr. Rev. No. 27 of 2012 by the opposite parties, which was decided by order dated 17.05.2012, by which, the learned District and Additional Sessions Judge-VIII, Ranchi, remanded the matter back to the Executive -3- Magistrate to pass a fresh order. He submits that pursuant to that the present order has been passed. He further submits that in absence of any new material in a proceeding under Section 147 Cr.P.C. such order has been passed ignoring Section 148 of the Cr.P.C. He further submits that the disputed questions of fact are
Decision
involved in the matter, as such, the impugned order is bad in law. 7. Mr. Deo, learned counsel appearing for the O.P. Nos. 2 and 3 submits that ingress and outgress of the opposite parties have been interfered by the Birsa Agricultural University, which was being used as a road to come to the link road and in view of the report of a police officer, the said order has been passed. He submits that in view of that no case of interference is made out. 8. Mrs. Kumari Rashmi, learned A.P.P. appearing for the State submits that there is no infirmity in the impugned order. 9. It is an admitted fact that the case was registered in the year 2012 and such order has been passed in the year 2022. Seeing the nature of dispute, this matter was admitted by a co-ordinate bench of this court and stay was granted. During the pendency of the present case, the order dated 23.02.2022 has been passed. The order under Sections 144, 145, 146 and 147 Cr.P.C. are emergent in nature and looking into the nature of dispute, the stay was granted by this court. 10. The order under Sections 144, 145, 146 and 147 Cr.P.C. are only emergent in nature and the learned court is required to find out that whether the road was being used or not. Admittedly in the first order dated 02.01.2012, the then Executive Magistrate found that there is another way to go to the link road and he has been pleased to dismiss the said petition. In light of the revisional order, the matter was again remanded to the learned court, pursuant to that the present order has been passed. 11. If such a situation was there and once a remand was made, the learned court was required to take fresh report at the time of passing of the said order and the said order has been passed based on a report of year 2004 and the order has been passed in the year 2022. -4- 12. In view of Section 148 Cr.P.C. whenever local inquiry is necessary for the purposes of Section 145, Section 146 and Section 147, a District Magistrate or Sub-Divisional Magistrate may depute any Magistrate sub-ordinate to him to make the inquiry, and may furnish him with such written instructions as may deem necessary for his guidance, and may declare by whom the whole or any part of the necessary expenses of the inquiry shall be paid and that is the spirit of Section 148 Cr.P.C. 13. The term local inquiry in Section 148 Cr.P.C. contemplates delegation of judicial functions, the mere making of survey of the disputed land and preparing a map thereof do not amount to a local inquiry under this Section, because they are not judicial but purely ministerial acts, and such acts can be entrusted to a person other than a Magistrate, e.g. to a pleader commissioner or even an amin. The report of such a person cannot be read as evidence under Section 148(2), but he must be called as a witness and examined and cross-examined as to his report. This exercise has not been made by the learned court in passing the impugned order. Further the orders under Section 147 Cr.P.C. is one permitting a thing to be done or directing that a thing shall not be done. This Section does not enable the magistrate to make purely declaratory order. It only enables him to prevent arbitrary interruption by any person of rights actually enjoyed which have been exercised by the public or by a person or class of persons. 14. If such a disputed questions of fact are there, that cannot be a basis for passing an order under Section 147 Cr.P.C., as the same can only be decided by the competent court of civil jurisdiction. In view of that, the impugned order dated 27.09.2013 and order dated 23.02.2022, which has been challenged by way of I.A., passed in Case No. M-582/2004 under Section 147 Cr.P.C., whereby the status quo has been granted by the learned Executive Magistrate, Sadar, Ranchi with regard to the use of the land, are hereby, set aside. -5- 15. The O.P. Nos. 2 and 3 are put a liberty to redress their grievance by way moving before the competent civil court. 16. This petition is allowed and disposed of. Amitesh/- [A.F.R.] (Sanjay Kumar Dwivedi, J.)