Court No. - 15
Case :- CRIMINAL MISC. WRIT PETITION No. - 17618 of 2014 Petitioner :- Laxmi Kant Pandey Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Shesh Kumar,Sunil Dubey Counsel for Respondent :- Govt.Advocate,Sanjay Srivastava
Hon'ble Umesh Chandra Tripathi,J.
Heard learned counsel for the parties and perused the record.
This writ petition under Article 226 of the Constitution of India has been filed on behalf of the petitioner with a prayer to quash the impugned judgment and order dated 17.09.2014 passed by Sessions Judge, Kaushambi, in Criminal Revision No. 52 of 2014 (Laxmi Kant Pandey v. State of U.P.) as well as the order dated 17.07.2014 passed by Sub-Divisional Magistrate, Sirathu, Kaushambi, in Case No. 11 of 2014 under Section 133 of the Code of Criminal Procedure, 1973 (in short 'Code'). Vide order dated 17.09.2014 passed by Sessions Judge, Kaushambi, the criminal revision against the order dated 17.07.2014 passed by Sub-Divisional Magistrate, Sirathu, Kaushambi was dismissed. By the impugned order dated 17.07.2014, learned S.D.M. had directed the petitioner to remove the wall which was obstructing the passage meant for the public.
Learned counsel for the petitioner contended that the petitioner is a bona fide purchaser of the land in dispute. The petitioner has constructed wall on the land belonging to him. As such, proceedings under Section 133 of the Code cannot be initiated.
Learned counsel for the respondent no. 2 contended that learned Magistrate has specifically observed that there is a public passage, which was obstructed by the petitioner. Accordingly, there is no illegality in the impugned orders passed by the courts below.
Learned counsel for the respondent no. 2 further contended that the petitioner has filed a civil suit - O.S. No. 338 of 2014 (Laxmi Kant Pandey v. State of U.P.). He next contended that the petitioner has constructed wall in more area than what he purchased from owner Jagdish.
Concurring with the contention raised by learned counsel for respondent no. 2, learned A.G.A. for the State also contended that there is no illegality in the impugned orders passed by the courts below.
In the impugned order dated 17.07.2014, learned Magistrate observed that the petitioner had purchased the land in dispute from its owner - Jagdish and thereafter, constructed wall on it. Learned Magistrate further observed that in reference to the dispute, civil suit is pending between the parties. In the civil suit, he has filed suit for temporary injunction, which was rejected by the civil court.
From the perusal of the impugned order, it appears that there is dispute of demarcation between the parties. There is no such public passage on the spot. Public go through the land belonging to Jagdish. Only because public go through land belonging to Jagdish, it cannot be said that it is a public passage. Accordingly, proceedings under Section 133 of the Code is not maintainable.
In view of above, the impugned order passed by the courts below are beyond jurisdiction and liable to be set aside. It is ordered accordingly.
In the result, the instant writ petition stands allowed. Order Date :- 18.12.2018 I. Batabyal