Dismissed

Satyendra Kumar Rai and 2 Anr. v. State of U.P. and 6 Ors.

Allahabad HC22 May 2018CRLP/13211/2018

Case brief

AI extract

What is this about?

Single judge disposed of criminal writ petition seeking quashing of administrative order barring nuisance proceeding under Section 133 Cr.P.C., holding the issue of nuisance remains independent of interim reconstruction direction and dismissed petition with directions for expeditious hearing.

What did the court decide?

Petition disposed with observations directing SDM to conclude Section 133 Cr.P.C. proceedings within two months.

Satyendra Kumar Rai and 2 Anr. Vs State of U.P… — Writ and Judicial Review | Allahabad HC (2018)

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Court No. - 49

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Case :- CRIMINAL MISC. WRIT PETITION No. - 13211 of 2018 Petitioner :- Satyendra Kumar Rai And 2 Anr. Respondent :- State Of U.P. And 6 Ors. Counsel for Petitioner :- Rakesh Pande,Neeraj Rai Counsel for Respondent :- G.A.

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Hon'ble Saumitra Dayal Singh,J.

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Heard learned counsel for the petitioners and learned AGA for the State.

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This petition has been filed to quash the order dated 03.04.2018, passed by the respondent no.3, the Sub Divisional Magistrate, Sadar, District Varanasi as well as direction to issue direction to respondent no.3 to bring proceeding under Section 133 Cr.P.C. initiated vide notice dated 11.02.2014 to its logical end.

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Learned counsel for the petitioners submits that though there may have been an error in the procedure adopted by the Sub Divisional Magistrate, Sadar, District Varanasi in directing removal of the alleged nuisance by an ex-parte order without issuing any prior notice to the opposite party and without hearing that party, however, the Division Bench of this Court did not record any finding as to the legal rights of the applicant vis-a-vis the boundary wall claimed to have been illegally demolished.

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By order dated 17.07.2017 passed by the Division Bench, of this Court only this much had been provided that in the event it is found that the boundary wall was not an encroachment, it would be rebuilt at State expense.

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In such circumstances, it is submitted that issue whether the opposite party has or has not caused the encroachment has yet not been decided in as much as proceeding under Section 133 Cr.P.C. are still pending.

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At the same time, in view of the observation made by the Division Bench, the SDM has passed an administrative order providing for reconstruction of the boundary wall.

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It is thus submitted that the proceeding under Section 133

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Cr.P.C. have virtually being defeated without any final order being passed thereon. It is also submitted that once a boundary wall would be constructed under administrative order issued by the SDM, there would be no useful purpose in the proceeding under Section 133 Cr.P.C.

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Learned AGA appearing for the State has opposed the present application and submits that the boundary wall that is being reconstructed is only an interim measure being provided to give effect to the order passed by the Division Bench. However, the proceeding under Section 133 Cr.P.C. still survives and the SDM would take an independent judicial view over the matter in those proceeding. The question of nuisance, if any, would be determined in terms of the final decision.

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Considering the above argument, the present petition is disposed of with the observation that the issue of nuisance/encroachment on the public road is an issue independent of the construction of the boundary wall that is an interim measure.

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While said boundary wall may have been demolished prematurely as has been observed by the SDM in his administrative order, however, the claim of the petitioner that the said boundary wall was a nuisance on the public road is an issue which would be decided independently by the SDM, strictly in accordance with law, after affording due opportunity of hearing to all parties and after allowing them an opportunity to lead such evidence as they may be advised. It is also expected that the aforesaid proceeding be concluded expeditiously, preferably within a period of two months from the date of production of certified copy of this order.

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With the aforesaid directions, this petition is finally disposed of .

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Order Date :- 22.5.2018/VKG

Satyendra Kumar Rai and 2 Anr. v. State of U.P. and 6 Ors.

Case brief

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Satyendra Kumar Rai and 2 Anr. v. State of U.P. and 6 Ors.

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