JADUNATH NAYAK Vs. SUB COLLECTOR BHADRAK

JUDGEMENT

(1.) This application under Section 482 of the Code of Criminal Procedure is directed against the order dated 20-8-2001 passed by the S.D.M. Bhadrak in Cri. Misc. Case No. 5 of 1997 under Section 133 of the Cr. P. C. confirmed in Criminal Revision No. 61 of 2001 filed before the learned Additional Sessions Judge, Bhadrak.

(2.) From the records it appears that a proceeding was initiated on 2-12-1997 basing on the petition of the opposite parties 2 to 5 who were first party members on the allegation that they have no other way except the case land to go to the temple "Maa Mangala Grama Debati" which is situated to the north-eastern side of the first party's residence. It was further contended before the learned S.D.M. that the case land was part of the public pathway in the revision settlement but in the C. S. Map it has been wrongly amalgamated with the homestead land of petition (sic) of 2nd party member 1 and 3 and their elder brother Bhima Das and the second party members started construction of a thatched house on the case land in violation of the order passed in a proceeding under Section 144, Cr. P. C. An enquiry was directed to be conducted by the Tahsildar, Bhadrak and on the basis of the report of the Tahsildar as well as documents placed before that Court and spot enquiry report, an order was passed to remove the thatched house. The second party members being aggrieved with the above order passed by the S.D.M. preferred a revision before the learned Additional District and Sessions Judge, Bhadrak in Criminal Revision No. 1 of 1999 and vide judgment dated 30-1-1999 the Addl. District and Sessions Judge remanded the matter to the S.D.M. directing him to take evidence of the parties and dispose of the case afresh. After receipt of the records on remand, the parties were directed to appear and adduce evidence in respect of their respective claims and the Tahasildar, Bhadrak was directed to make spot enquiry personally and submit report. Pursuant to such orders passed by the learned S.D.M., some witnesses were examined by the first party but the second party did not adduce any evidence. On perusal of the materials collected after closure of evidence, the learned S.D.M. again directed the second party members to remove construction/encroachment and clear the pathway vide order dated 20-8-2001. Said order was challenged again in revision by the second party member before the learned Addl. District and Sessions Judge, Bhadrak in Criminal Revision No. 61 of 2001 and the said revision having been dismissed, the present application has been filed.

(3.) Shri Mohapatra, learned counsel for the petitioner submitted that the Record-of-Right in Annexure 1 describes the petitioner as one of the owners with stithiban status in respect of homestead plot Nos. 2247, 2248 and 2249. He further submitted that the S.D.M. as well as the learned Addl. Sessions Judge proceeded as if they are required to decide the question of title in a proceeding under Section 133, Cr. P. C. and therefore the impugned orders are liable to be quashed. According to Sri Mohapatra question of title cannot be decided in criminal proceeding by Magistrate and the matter should be decided by a competent Civil Court. Learned S.D.M. having proceeded to decide the question of title, the order is not sustainable. Shri Jena, learned counsel for the first-party-opposite parties, on the other hand, submitted that in view of the allegations made by the first party members that the second party was constructing a thatched house on the pathway used by the first party members to go the temple unlawfully and that the nuisance should be removed from the public place, the proceeding was rightly initiated under Section 133 of the Cr. P. C. and on consideration of materials placed before the learned Magistrate order was passed.