ANIL KUMAR SHARMA, J. - (1.) HEARD Sri Dharam Pal Singh, Senior Advocate assisted by Sri S. Niranjan, Advocate for the petitioner, learned AGA for the State and Sri Upendra Kumar Singh, Advocate for respondent no. 3 and perused the record. In this petition under Article 226 of the Constitution of India, the petitioner has prayed for writ of certiorari quashing the impugned order dated 6.6.2013 passed by Addl. Session Judge/Temporary Ex.-Cadre Post-1, Jalaun at Orai in Criminal Revision no. 6 of 2013 arising out of order dated 4.1.2013 passed by Sub-Divisional Magistrate, Madhaugarh District Jalaun in Case no. 6 of 2012 Jai Karan Singh and others versus Narendra Singh u/s 133 Cr.P.C. and all subsequent proceedings pursuant thereof.
(2.) BRIEF facts germane to this petition are that on 6.6.2012 and 8.6.2012 some villagers including Hansraj Singh and others of village Surpatipura complained to the Sub-Divisional Magistrate, Madhaugarh in writing that the petitioner has encroached upon the public land (rasta). The SDM called for enquiry report from Tahsildar. In the meantime the petitioner also submitted an application against Jai Karan Singh and others (opposite party no. 2 to 5) alleging that they are raising constructions on the public road, which should be stopped. The Lekhpal submitted report dated 22.6.2012, whereupon the SDM on 22.6.2012 directed S.O., Madhaugarh and Nai Tahsildar for making local inspection and in case illegal constructions are found, they should be removed. However, on 6.7.2012 the petitioner filed Original Suit no. 271 of 2012 for permanent injunction against opposite parties no. 2 to 5 with respect to the land in dispute. On the report of Naib Tahsildar, the SDM on 10.7.2012 passed a conditional order u/s 133(1) Cr.P.C. directing the petitioner to remove the encroachment, else to show cause by 18.7.2012, why the notice be not made absolute. On 13.8.2012 the petitioner filed objections inter alia stating that in view of the pendency of the civil suit with respect to the same land in dispute, the proceedings u/s 133 Cr.P.C. are not maintainable and as such they be dropped. The Tahsildar again submitted report dated 18.10.2012, which was received on 31.10.12. Thereafter the learned Magistrate made spot inspection 20.11.2012 and after hearing the parties' counsel passed final order on 4.1.2013 directing the petitioner to remove his encroachment on public land measuring 3' x 20'. The petitioner preferred criminal revision no. 6 of 2013 before the Sessions Judge, which was dismissed on 6.6.2013 by Addl. Sessions Judge/Temp. Ex-Cadre Post-1, Jalaun at Orai. Aggrieved, the petitioner has filed the instant writ petition. The respondent no. 3 in his counter-affidavit has averred that the petitioner has encroached upon 3ft. wide public rasta by including the neem tree in his chabutra in the month of June, 2012, as is evident from the inspection reports of Lekhpal and Tahsildar; that the petitioner has himself admitted in his application Annexure-2 that he was constructing the wall of his chabutra, which was being obstructed by Jai Karan Singh, Har Govind Singh, and Kaptan Singh and he requested the SDM to restrain them from interfering in his construction. It has been further contended that the petitioner has filed application on 8.10.2012 for withdrawal of the civil suit no. 271 of 2012.
(3.) UPON hearing counsel for the parties and perusal of the record it is apparent that the petitioner has filed civil suit apprehending action by the SDM on the application of the villagers u/s 133 Cr.P.C. and in the suit he did not get any interim relief. He has also applied for withdrawal of the suit with permission to file another suit after removal of legal defects. In his objections to the notice u/s 133(1) CrPC, the petitioner has denied the existence of public rasta and has contended that he has filed civil suit no. 271/12 wherein the question of ownership of the disputed piece of land is involved.;