1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 73 OF 2010 The Fabrica De Igreja Da Orlim, Church of St. Michael, Orlim, Salcete-Goa. Through its Attorney Mr. Francisco Rodrigues, Resident of Palcutta, Orlim, Salcete-Goa. ... Petitioner versus 1. The State of Goa, Through its Chief Secretary, Secretariat, Porvorim-Goa. 2. The Deputy Collector & SDO, Margao, Salcete Goa. 3. M/s. Meenakshi Financial Consultants Private Limited, A Private Limited Company, Under the Companies Act, 1956, with registered office at 127/24, W-1, Saket Nagar, Opposite Parag Milk Board, Kanpur-208 014. 4. Satwik Dwellings Private Limited, a private limited Company, Under the Companies Act, 1956, with registered office at 127/24, W-1, 2 Saket Nagar, Opposite Parag Milk Board, Kanpur – 208 014. The Respondent Nos.3 & 4 are represented by their duly constituted attorney Shri Anand Ashok Batra, s/o Shri Ashok Kumar Batra, aged 33 years, Occupation-Business, r/o Navying House, Building No.14, 3rd Floor, Room No.48, Princess Street, Marine Lines Mumbai – 2. ... Respondents Shri Nigel Da Costa Frias, Advocate for the Petitioner. Shri C. A. Ferreira, Public Prosecutor for Respondent Nos.1 and 2. Shri Sudesh Usgaonkar, Advocate for Respondent Nos.3 and 4. CORAM : N. A. BRITTO, J. DATE : 7TH OCTOBER, 2010. ORAL ORDER Heard. 2. By the present petition, the petitioner who is Party No.I before the Sub Divisional Magistrate, Margao, assails the interim Order dated 13-8-2010 passed by the said Magistrate under Section 147(3) of the Code (Code of Criminal Procedure, 1973). 3 3. Some facts are required to be stated to dispose off this petition which according to the learned Counsel appearing on behalf of the petitioner has been filed under Articles 226 and 227 of the Constitution of India as well as under Section 482 of the Code, and it is contended by learned Counsel appearing on behalf of the Respondents that this is a petition filed only under Article 227 of the Constitution. I do not think it is necessary to enter into this controversy as the Apex Court in M/s. Pepsi Foods Ltd. and others v. Special Judicial Magistrate and others(1998(5) SCC 749) has stated that it is settled law that the High Court can exercise its power of judicial review in criminal matters. Referring to Article 227 of the Constitution, the Apex Court has held that it confers vast powers on the High Court to prevent the abuse of the process of law by the inferior Courts and to see that the stream of administration of justice remains clean and pure, and that the power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code has no limits but more the power more due and caution is to be exercised while invoking these powers. The nomenclature is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise possesses unless there is a special procedure prescribed which is mandatory. The 4 Court can certainly treat a petition as one under Article 227 or Section 482 of the Code. 4. There is no dispute that in village Orlim amongst others there are two properties, one surveyed under No.86/20, and the other surveyed under No.87/14, adjoining one another. The property surveyed under No.86/20 lies to the west of the said property surveyed under No.87/14. There is a tar road in the property surveyed under No.86/20 which belongs to the petitioners. It is conceded that the said tar road was constructed without acquiring any part of the said property surveyed under No.86/20. The dispute is regarding a strip of land which lies between the said tar road and the property surveyed under No.87/14, which strip, according to the petitioners has a length of about 113 meters and width which varies from 3 to 5 meters. 5. The Respondents Nos.3 and 4 have purchased a part of the property surveyed under No.87/14 by deed dated 26-4-2007 from one Minguel Martins, and after the said purchase that part of the property admeasuring 7031 sq. meters has been identified as having survey No.87/14/C. 5 6. The petitioners have depicted the said strip on a survey plan prepared by one surveyor by name Anthelmo C. Fernandes. Respondent Nos.3 and 4 have not contested the correctness of the said plan. Respondent Nos.3 and 4 claim a right of passage through the said strip to go to the said tar road which is also shown on the very sketch as PWD road. 7. According to the petitioners, the said strip of 3 to 5 meters width and length of 113 meters is part of the property of the petitioners under survey No.86/20, and exclusively belongs to them, and they are in possession of the same till date. The case of Respondent Nos.3 and 4 is that there is no private land on the eastern side beyond the said tar road and the boundary of their property purchased by them by sale deed dated 26-4-2007 is the said tar road, and that after purchase of the said property(surveyed under No.87/14/C) the said Respondents after taking necessary permissions have been carrying out development in the said property. 8. The learned S.D.M. has not even referred to the sketch/plan produced by the petitioners. The learned Sub Divisional Magistrate by 6 the impugned Order has come to the conclusion that the Respondents Nos.3 and 4(who were Party No.II before the learned S.D.M.) have been freely using the right of way to complete their construction project and were never blocked by any persons until the end of May, 2010. The learned S.D.M. has further observed that more hardship would be caused to Party No. II as compared to Party No. I, if the obstruction was not removed as they would be deprived of their access to their property during the pendency of the proceedings since they were using the same since its purchase. The learned S.D.M. also referred to the agreement entered into between Respondents Nos.3 and 4 by which they had an access passing through the property bearing survey No.87/14, and ultimately came to the conclusion that Respondent Nos.3 and 4 had prima facie made out a case of user of access and proceeded to restrain the petitioner/Party No. I from obstructing the Party No. II(Respondent Nos.3 and 4) from using the access from survey No.87/14/C to the village road in survey No.86/20. In other words, the impugned Order seems to have recognized a right in favour of the Party No. II(Respondent Nos.3 and 4) because they were using the same from the time of purchase of their property. 7 9. Shri Nigel Da Costa Frias, learned Counsel appearing on behalf of the petitioners submits that the impugned Order has been passed by the learned S.D.M. without Respondent Nos.3 and 4 making out a prima facie case. Learned Counsel further submits that the said Party No. II had not shown what is the width or length of the access they claimed through the property of the petitioners. Learned Counsel further submits that Party No. II had already filed a suit, and according to Party No. II the said suit was filed against all villagers which included the petitioner as well, and, therefore the Party No. II ought to have obtained the reliefs from the Civil Court. 10. On the other hand, Shri Sudesh Usgaonkar, learned Counsel appearing on behalf of Respondent Nos.3 and 4 has placed reliance on the case of Essen Deinki v. Rajiv Kumar((2002) 8 SCC 400) and has submitted that jurisdiction under Article 227 is revisional in nature which does not vest unlimited authority or prerogative in the High Court to correct all orders and only errors of law patently on record would only warrant their correction. Learned Counsel has placed reliance on R. H. Bhutani v. Miss Mani Desai and others(AIR 1968 SC 1444) and has submitted that in revisional jurisdiction, the High Court cannot go into 8 the question of sufficiency of material which has satisfied the Magistrate. Learned Counsel has further submitted that the learned S.D.M. has only continued a state of affairs which was existing till the parties obtain their rights before the Civil Court. Learned Counsel next has submitted that there was no private land left out, on the eastern side of the said tar road, and the access which was being used by Respondents Nos.3 and 4 to come to the tar road was nothing but shoulder of the road which was being used by the public in general, and in this regard learned Counsel has relied on the acquisition plan which is at page 279 of the paper book, and which in turn only shows that the property of the petitioners surveyed under No.86/20 is bounded by the property surveyed under No.87/14 including survey No.87/14/C. 11. The petitioners had prima facie proved that the said strip of a length of about 113 sq. meters with a width ranging from 3 to 5 meters was part and parcel of their property surveyed under No.86/20 and was in their possession. In fact, it was expected of the learned S.D.M. to have touched on this aspect of the case. That the said strip is part of the petitioners property, and, therefore in their possession is supported by various documents. First of all, the Police Report on the basis of which 9 proceedings under the Code were initiated shows that the property in dispute is the portion of land between the road and the property surveyed under No.87/14/C which disputed portion the petitioners claimed as part of survey No.86/20 and the road passing through their property and that Party No.II was claiming that the said strip was an access to their property. The said strip has been depicted on a plan prepared by the surveyor Shri Fernandes which was produced by the petitioners before the learned S.D.M. and to which not even a reference has been made. Respondent Nos.3 and 4 acknowledged this position in the suit filed by them, having R.C.S. No.166/2009/D, which showed that the western boundary of their property was 6 meters wide road and part of the property of Fabrica of Orlim surveyed under No.86/20. In other words, Party No. II i.e. Respondent Nos.3 and 4 were claiming a right of passage through the property of petitioners and presumably to the entire extent that it touched the property purchased by them, and surveyed subsequently under No.87/14/C. The petitioners had produced form Nos. I and XIV of survey No.86/20 which, inter alia, showed the name of the petitioner in the occupant's column. Obviously, the name of Party No. II is not shown. On the basis of form Nos. I and XIV, it could safely be presumed that the petitioners were in possession of the entire property 10 surveyed under No.86/20(except the tar road) including the said strip. There is no dispute that the L.A.O. has passed an award to acquire not only the existing tar road but also the said strip but the fact remains that the Government has not taken over the possession of the property sought to be acquired till date. The petitioners had also produced a letter dated 18-8-2010 wherein the P.W.D. has made it clear that the asphalted road does not touch the property bearing survey No.87/14. Admittedly, Party No. II i.e. Respondent Nos.3 and 4 purchased their property by deed dated 26-4-2007. In support of their right of passage from their property to the asphalted road through the petitioners strip of land, the said Party No. II did not file any affidavit of any previous owners. Party No. II, if at all acquired any right of passage through the petitioners property to go to the said tar road could have acquired the same only after they purchased the property from 26-4-2007. 12. Section 147 deals with disputes concerning right of use of land or water and sub-section(1) thereof provides that whenever an Executive Magistrate is satisfied from the report of a police officer or upon other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water 11 within his local jurisdiction, whether such right be claimed as an easement or otherwise, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader on a specified date and time and to put in written statements of their respective claims. Party No. II did not claim any easement nor specified what right they were claiming through the petitioners property to go to the said tar road through the said strip belonging to the petitioners, and which was in the possession of the petitioners. Party No. II could not have acquired any known right from 26-4-2007 to go to the said asphalted road through the petitioners property which was admittedly in their possession. Mere use for a few years would not crystallize into any right in favour of Respondent Nos.3 and 4 who were mere trespassers. The learned S.D.M. ought to have given a prima facie finding as to what right the Respondent Nos.3 and 4 had acquired to the property of the petitioners to go to the said tar road and then only could have passed an order of injunction, assuming that the learned S.D.M. had such powers to pass an interim order of injunction. From the documents produced by the petitioners, the petitioners had prima facie proved that the said strip was part and parcel of their property of which they were in possession and 12 Respondents Nos.3 and 4 had prima facie failed to prove any right over the said strip to go to the said tar road. Only because the Party No. II was using the said strip from the time of purchase of the property, that could not have given them a right, to use the petitioners property as a matter of right to go to the said road. The impugned Order has been passed without a prima facie finding as to the existence of the right of the petitioners over the property which was admittedly in possession of the petitioners, and, therefore it calls for infererence from this Court. 13. Consequently, the Criminal Writ Petition succeeds. The impugned Order is hereby set aside with costs to the petitioners by Respondents Nos.3 and 4. N. A. BRITTO, J. RD