Dismissed¶33

Tapan Kumar Maity v. Sk Jabed and Another

Calcutta HC11 Dec 2024CRR/4533/2023

Case brief

AI extract

What is this about?

Section 147 Cr.P.C.; Section 147(3) Cr.P.C.; Section 147(4) Cr.P.C.; easement right; right of way; removal of fencing; free ingress and egress; civil dispute decidable by civil court; Executive Magistrate; B.L. & L.R.O. Sagar; field enquiry report; C.S. Plot No.1237; government road; Criminal Revision No.06 of 2022; Additional Session Judge 1st Court Kakdwip South 24-Parganas; order dated 01.06.2023; order dated 20.01.2022; CRR 4533 of 2023; Tapan Kumar Maity; revision dismissed; interim order vacated; Shampa Dutt (Paul), J.; 11.12.2024.

What did the court decide?

No relief granted to the petitioner; interim order, if any, stands vacated. ¶33

Tapan Kumar Maity Vs Sk Jabed and Another — Calcutta HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

No relief granted to the petitioner; interim order, if any, stands vacated.

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Issue for consideration

Whether the dispute between the parties concerning the easement/right of way over the path is civil in nature and thus to be decided by the civil court. +2 more

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Court's answer

The Court held that the findings of the learned Additional Sessions Judge in the order under revision — that the dispute between the parties is civil in nature — are prima facie in accordance with law.

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Ratio / Principle

The Court was not inclined to interfere with the order under revision, and consequently dismissed CRR 4533 of 2023.

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Key takeaways

The Court observed that the learned Executive Magistrate had exercised his authority under Section 147(3) Cr.P.C., and that Section 147(4) Cr.P.C. was also available to him to decide the dispute.obiter¶31

Detailed headnote1 paragraphs

Criminal revision (CRR No. 4533 of 2023) preferred by Tapan Kumar Maity against the order dated 01.06.2023 of the learned Additional Session Judge, 1st Court, Kakdwip, South 24-Parganas, passed in Criminal Revision No.06 of 2022, affirming the order dated 20.01.2022 of the learned Executive Magistrate. The Magistrate's order, passed on the field enquiry report of the B.L. & L.R.O. Sagar recording C.S. Plot No.1237 as government road with an existing easement right, directed that the easement right could not be disturbed and that all fencing be removed to ensure free ingress and egress. Held: the dispute between the parties is civil in nature and decidable only by the civil court; the Additional Sessions Judge's finding is prima facie in accordance with law; the Court is not inclined to interfere with the order under revision. The Court further noted that the Executive Magistrate had acted under Section 147(3) Cr.P.C. and that Section 147(4) Cr.P.C. was also available to him. Disposition: CRR 4533 of 2023 dismissed; interim order, if any, vacated; copy of the order sent to the Trial Court. Single-member bench: Shampa Dutt (Paul), J. Decision date: 11.12.2024.

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11.12.2024 Item no.19. Court No.30.

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S. De

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CRR No. 4533 of 2023

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In the matter of : Tapan Kumar Maity.

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……Petitioner.

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Mr. Manoranjan Jana, Mr. Radhasyam Maiti, …for the Petitioner.

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Mr. Dipankar Aditya, Mr. R. Jana, Ms. Tina Biswas,

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…for the opposite party no.1.

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1. The present revisional application has been preferred against an order dated 01.06.2023 passed in Criminal Revision No.06 of 2022. Where in the learned Additional Session Judge, 1st Court, Kakdwip, South 24-Parganas was pleased to affirm the order of the learned Executive Magistrate dated 20.01.2022.

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2. The order under revision was passed on the finding as

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follows :-

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“…………….On the basis of that report Ld Executive Magistrate passed an order to remove the fencing. So from the materials on record it appears that it is a civil dispute and whether opposite party has any easement right on the path in question or not it is a civil dispute and it can be decided by the civil court only. Unless any specific order has been passed by the civil court to that effect the right of way of the petitioner/opposite party cannot be curtailed……...”

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3. The order of the learned Executive Magistrate dated

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20.01.2022 which was affirmed by the order under revision is

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as follows :-

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“………….CR is put up by 1^st party with a petition. CR is put up by 2^nd party.

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Learned Adv. appeared vide vokalatnama with a petition. Gone through roughly the field enquiry

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report submitted by the B.L. & L.R.O. Sagar. According to the field enquiry report from the time of the C.S. operation of the L & L.R. department C.S. Plot No.1237 was government road that means from that period there is existing easement right through the land. Hence it is ordered anyhow this easement right cannot be disturbed and all kind of fencing would be removed to ensure free ingress and egress. The O.C. Sagar kindly take necessary action. This case is dropped………...”

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4. Section 147 Cr.P.C. reads as follows :-

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“147. Dispute concerning right of use of land or water.

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(1)Whenever an Executive Magistrate is satisfied from the report of a police officer or upon other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction, whether such right be claimed as an easement or otherwise, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader on a specified date and time and to put in written statement of their respective claims.

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Explanation. - The expression "land or water" has the meaning given to it in sub-section (2) of section 145.

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(2)The Magistrate shall then peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible, decide whether such right exists; and the provisions of section 145 shall, so far as may be, apply in the case of such inquiry.

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(3)If it appears to such Magistrate that such right exists, 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 :

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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 subsection (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

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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.

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(4)When in any proceedings commenced under sub-section (1) of section 145 the Magistrate finds that the dispute is as regards an alleged right of user of land or water, he may, after recording his reasons, continue with the proceedings as if they had been commenced under sub-section (1);and when in any proceedings commenced under sub-section (1) the Magistrate finds that the dispute should be dealt with under section 145, he may, after recording his reasons, continue with the proceedings as if they had been commenced under sub-section (1) of section 145.”

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5. Affidavit-in-opposition filed by the opposite party be kept with the records.

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6. It appears from the materials-on-record that the learned Executive Magistrate exercised his right in the present case under Section 147(3) of the Cr.P.C. The provision of Section 147(4) Cr.P.C. is also available to the learned Executive Magistrate to decide the dispute in the present case.

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7. This Court finds that the findings of the learned Additional Sessions Judge in the order under revision to the extent that the dispute between the parties is civil in nature, is Prima facie, in accordance with law and as such this Court is not inclined to interfere with the order under revision.

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8. CRR 4533 of 2023 is dismissed.

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9. All connected Applications, if any, stands disposed of.

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10. Interim order, if any, stands vacated.

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11. Copy of this order be sent to the learned Trial Court for necessary compliance.

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12. Urgent certified website copy of this order, if applied for, be supplied expeditiously after complying with all, necessary legal formalities.

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