Court No. - 77
Case :- APPLICATION U/S 482 No. - 1051 of 2021 Applicant :- Guddu Diwakar @ Sushil Kumar Opposite Party :- State Of U.P. And 8 Others Counsel for Applicant :- Arjit Srivastava,Usha Srivastava,Vinod Kumar Srivastava Counsel for Opposite Party :- G.A.,Sushant Misra
Hon'ble Pankaj Bhatia,J.
The present application has been filed with the following prayer:-
"Issue a writ, order or direction in the nature of mandamus to direct the opposite party no. 1 to 6 to remove the encroachment made by opposite party no. 7 to 9 over the Gata No. 417 and 420 situated at Gram Navadiya, Pargana Pahada, Tehsil Sadar, District Farrukhabad in pursuance of order dated 12.10.2011 passed by City Magistrate, Farrukhabad in Case No. 1 of 2009, under Section 133 Cr.P.C., Police Station Kotwali Fatehgarh, District Farrukhabad."
The allegations, in brief, are that one Smt. Sharda, the mother of the applicant, filed an application before the Executive Magistrate, Farrukhabad purporting to be under Section 133 Cr.P.C. alleging that certain constructions have been raised over the drain. After hearing the parties, the Executive Magistrate passed the following order:-
"आददेश वविविवावदत स्थल आम रवास्तवा कदे रूप मदे प्रययोग हयोनदे कदे कवारण आददेश वदयवा जवातवा हहै वक इस स्थल पर वकससी प्रकवार कवा वनमवार्माण /अविरयोध उत्पन्न न वकयवा जवाए। आददेश ककी प्रवत प्रभवारसी वनरसीक्षक कयोतविवालसी फतदेहगढ़ कयो भदेजवा जवाए। उक्त आददेश कवा उलल्लॅघन करनदे विवालदे व्यवक्त कदे वविरूद्ध वविधधक कवायर्माविवाहसी अमल मम लवायसी जवाए।"
The present application has been filed alleging that the said order is not being complied with, as such a mandamus be issued.
I have heard learned counsel for the applicant, Shri Daya Shanker Mishra, learned Senior Advocate assisted by Shri Chandrakesh Mishra, learned counsel for the opposite parties and learned A.G.A. for the State.
Learned counsel for the opposite parties has made a neat submission that a prayer for mandamus cannot be allowed in exercise of powers under Section 482 Cr.P.C. He further argues that even otherwise there was a report, which is on record and has been filed along with counter affidavit to show that no illegal constructions were raised by the opposite party.
Be that as it may, a perusal of the order, as recorded above, demonstrates that the Executive Magistrate had passed order to the effect that at the place in question no construction/obstruction should happen. There was no clear order of demolition of any part of the building or any structure alleged to have been erected by any one. Furthermore, I am of the clear view that for the enforcement of the order of the Executive Magistrate, the proceedings under Section 482 Cr.P.C. are not maintainable, even otherwise no mandamus can be issued in exercise of powers under Section 482 Cr.P.C.
The application is devoid of merits and is dismissed.
Order Date :- 19.2.2021 S. Rahman