IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.67 of 2004 MISHRI LAL SHARMA Versus STATE OF BIHAR & ORS ----------- 11 19-09-2008 Heard Sri Mukul Prasad, the learned counsel for the revisionist and Sri Someshwar Dayal, the learned A.P.P. for the State. The instant Cr.Revisional is directed against the order dated 12.1.2003 passed by Sri Shamim Akhtar, the learned Executive Magistrate, Chapra in Trial No.359 of 2003 ,by which the learned Executive Magistrate has suo motu passed orders restraining the petitioner from making constructions over his 20 decimals of land , of which he was given delivery of possession on 30.12.2000 under Order XXI, Rule 35 C.P.C. by the Civil Courts in Execution Case No.2 of 1999. It appears that Opp.Party nos.4 and 6 sent separate letters dated 24.3.2001 to the Sub Divisional Officer, Sadar Chapra stating therein that the petitioner was making illegal constructions over 20 decimals of land towards north west corners within School campus and a request was made to stop the construction work. Opp.Party No.6 also sent a copy of the letter to the Collector who in the light of the letter directed the Sub Divisional Officer to start a proceeding under Section 144 Cr.P.C. against the petitioner restraining him from going over the said land so long the Second Appeal No.506 of 1999 filed by the State against the petitioner was not disposed of by the High Court at Patna. The learned Sub Divisional Officer in the light of the - 2 - direction of the Collector drew up the proceeding on 24.3.2001 against both parties in respect of the land as stated by Opp.Party no.6 and issued show cause notice upon both parties. The petitioner appeared before the Sub Divisional Officer on 31.3.2001 and on 16.4.2001 filed his show cause in which he stated that there was no justification for initiating a proceeding under Section 144 Cr.P.C. with respect to the said land as the petitioner had filed Title Suit No.168 of 1967 impleading the said Collector , Saran, Sub Divisional Officer, Sadar Chapra and Opp.Party no.6, Headmaster, L.N.B.High School, Chapra as also the Members of the Managing Committee of the said School. The stand of the petitioner in the Title Suit was that the land in dispute was in excess and beyond the land acquired by the State for the said School and the School had encroached upon the said land in his absence by putting up a boundary wall , and as such, the petitioner prayed for possession after removing the encroachment. The Survey knowing Pleader Commissioner who was appointed to measure the land reported that the School authorities has encroached over 20 decimals of land belonging to the petitioner and, accordingly, the court decreed the suit against which the State preferred Title Suit No.11 of 1982 which was dismissed by the 7th Additional Sessions Judge, Chapra on 27.11.1998. Thereafter, the petitioner filed Execution Case No.2 of 1999 in which the Opp.Party nos.2 and 6 appeared through Government Pleader , Saran and prayed for time for bringing stay order from the High Court which, however, was not complied with. - 3 - The learned counsel for the petitioner has assailed the order of the Executive Magistrate by stating that the learned Sub Divisional Officer without considering the show cause and documents showing delivery of possession converted the 144 proceeding into Section 145 Cr.P.C. by an anti-dated order dated 16.4.2001 during the pendency of the Second Appeal against which the petitioner filed a Cr.Revision No.1 of 2002 before the learned Sessions Judge, Saran at Chapra. The learned District & Sessions Judge Ist, Chapra to whom the case was transferred was pleased to observe that the petitioner may move the court below against the continuation of the proceeding under Section 145 Cr.P.C. and the court shall examine the justification of the continuation of the said proceeding and pass proper order after filing a petition as such by the petitioner before the learned Executive Magistrate, but no order could be passed for nearly about a year. The submission of the learned counsel for the petitioner is that after he had been given possession on 30.12.2000 under Order XXI, Rule 35 C.P.C., no court could snatch the matter from his grasp and that, too, when Title Suit had declared the 20 decimals of land in his favour and when the decree of the Munsif was also in his favour. Admittedly, the Munsif had declared the possession of the petitioner over the disputed land against which the wrath of the first party prevailed. Due regard being had to the facts and circumstances of the case, the impugned order cannot be permitted to stand. - 4 - Having given my anxious thoughts to the matter, I am of the opinion that the learned Revisional Court as also the complainant had failed in their mission. Accordingly, the Revisional Court’s order approving the order passed by the learned Magistrate as also the Magistrate’s order are hereby quashed being not tenable in law and the application is allowed. ( Abhijit Sinha, J) NKS/-