- (1.) HEARD learned Counsel on behalf of the petitioner as also the learned A.P.P.
(2.) FROM perusal of the order impugned dated 17.1.2004 passed by the S.D.M., Godda in a proceeding under Section 144 Cr.P.C. vide Criminal Case No. 1006/03, it is evident that on the basis of the police report the said proceeding was initiated against the petitioner as the 2nd party and the O.P. Nos. 2 and 3 as the 1st party on the basis of imminent, apprehension of the breach of peace over the land pertaining to Jamabandi No. 202 Plot No. 1013. The claim of the petitioner in the proceeding was ancestral land having his own house and after constructing a house over 12 dhurs of land he had let out to the Opposite Parties against rent but dispute arose on the issue of increasing the rental amount. It was the contention of the Opposite Parties 1st party that he had constructed a thatched house over the disputed land 25 years ago and was running welding shop and was in peaceful possession over the land. The learned Executive Magistrate observed after hearing the rival contention of the parties as well as the police report that the land in question pertaining to Jamabandi No. 202 Plot No. 1013 was shown as Gairmazarua Rasta Gochar land and the proceedees were not at all concerned with that land which was encroached upon by parties and being satisfied, the rule was vacated in favour of the Jharkhand State Government and was made absolute against rival parties. The Executive Magistrate further directed the Circle Officer, Mahagama to remove encroachment made by both the parties and the Officer -in -Charge, Mahagama was directed to cooperate the Circle Officer in such removal of encroachment.
(3.) FROM the order impugned aforesaid and the observation made therein it is clear that the learned S.D.M., Godda has transgressed his jurisdiction by directing the Circle Officer to remove the alleged encroachment of the land in question though the parties had claim and counter -claim over the land in question about their long possession. The proceeding under Section 144 Cr.P.C. is preventive in nature in case of imminent apprehension of breach of peace and this Court finds that the learned S.D.M. has vacated the rule in favour of 3rd party, Govt. of Jharkhand without impleading and appreciating the documents filed on behalf of the parties. Therefore, the order impugned passed by the S.D.M., Godda is not sustainable in law and the dispute may be adjudicated by the competent court of civil jurisdiction. The learned S.D.M. is silent as to whether apprehension of breach of peace continued over the disputed land.;