Sitaram Soni And Ors. Vs The State Of Jharkhand And Ors.

18.Raj Kumar Soni, S/O Sri Gouri Shankar Soni. All resident of Doctor Bhabha Marg Road, Kumhar Toli, P.O. & P.S. Sadar, district Hazaribagh (Jharkhand) … … Opposite Parties

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioners : Mr. Mahesh Tewari, Advocate For the State : Mr. Shailesh Kumar Sinha, APP For the Municipal Corp. : Mr. Ranjit Kumar, Advocate For the Private Opp. Parties: Mr. Parambir Singh Bajaj, Advocate

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07 /21.08.2024 Heard the learned counsels for the parties.

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2. This criminal revision has been filed challenging the order dated 17.02.2017 passed by learned Sub-divisional Magistrate, Hazaribagh, in M- Case No.01/2016 passed in a proceeding initiated

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under section 133 of Code of Criminal Procedure, 1973 wherein the said authority has passed the following order:

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“From the enquiry report of the Executive Officer, (Nagar Palika) dated 21.10.2016 it is clear that there is absent of Puca Nala, which creates undue hindrance and had potential to create accidental case. Hence Court orders Sitaram and others to give land for construction of Puca Nala by Nagar Palika. If they do not comply with (second party), the Court orders then under section 191 of the Code of Criminal Procedure, further action will be taken. Hence Court directs the Executive Officer, Nagar Palika (who is also indirectly party in the case) to start the work within 1 week. For non- compliance of the orders action will also be initiated against the Executive Officer, Nagar Palika.”

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3. The learned counsel for the Petitioners, while assailing the impugned order, has submitted that the land on which Pakka Nala is to be constructed as mentioned in the impugned order belongs to the petitioners and his family members. He submits that the said authority has no jurisdiction to direct the petitioners to hand over personal land for the purposes of construction of Pakka Nala, and therefore, the impugned order calls for interference.

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4. The learned counsel appearing on behalf of the opposite party - State while opposing the prayer, has submitted that the Pakka Nala was constructed and the petitioners had encroached upon the drain and had constructed a boundary wall. The encroachment by the petitioners was to the extent of three feet, and therefore, the impugned order does not call for any interference.

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5. They have also submitted that the drain has already been constructed and is in operation and there is serious dispute with regard to title of the petitioners over the drain.

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6. They have also submitted that though the interim order was passed on 25.07.2017 in favour of the petitioners, but the same was directed to be communicated to the SDJM, Hazaribagh and not to SDM, Hazaribagh and the said order having not been communicated, the pukka drain was constructed and became operational on 21.08.2017. The allegation against the petitioners is that the petitioners constructed boundary wall by encroaching three feet of land in front portion and resisted the construction of the drain.

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7. A counter affidavit has also been filed on 12.07.2022 mentioning in paragraph no.10 that out of 9 decimals of land, the petitioners have made construction over 6 decimals and the remaining 3 decimals was encroached by the opposite party nos.6 to 18 and the petitioners and opposite party nos.6 to 18 are own Gotias and it is not clear as to whether the petitioners or the opposite party nos. 6 to 18 have encroached.

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8. After hearing the learned counsels for the parties and considering the facts and circumstances of this case, this Court is of the considered view that there is a serious dispute as to who is the encroacher, if any, in connection with the land involved in the present case in which a “Pakka Nala” has already been constructed and is operational. It further appears that the before coming to any conclusion, proper measurement was also required to be done. There are allegations and counter-allegations with respect to property, and such disputes cannot be adjudicated under revisional jurisdiction. The pakka nala having already been constructed and is operational and there is dispute regarding title , this court is not inclined to interfere with the impugned order.

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9. However, it is open to the petitioners to get their rights adjudicated through a Competent Court of Civil Jurisdiction.

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10. This Criminal revision is disposed of.

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(Anubha Rawat Choudhary, J.)

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Saurav

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Sitaram Soni And Ors. v. The State Of Jharkhand And Ors.

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Sitaram Soni And Ors. v. The State Of Jharkhand And Ors.

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