CRIMINAL WRIT JURISDCITION CASE NO.173 OF 1998 In the matter of an application under Article 226 of the Constitution of India 1. LAKHI RAM SON OF KOTI RAM 2. GOPI CHAND RAM SON OF KOTI RAM 3. SUDARSHAN RAM SON OF LAKHI RAM 4. RAMESH RAM SON OF LAKHI RAM 5. KANHAIYA RAM SON OF GOPI CHAND RAM 6. RAGHO RAM SON OF GOPI CHAND RAM, ALL RESIDENT OF VILLAGE KHAMHAURI, P.S. GAUTAM NAGAR, DISTRICT- SIWAN VERSUS 1. STATE OF BIHAR THROUGH THE COLLECTOR, SIWAN 2. SUBDIVISIONAL MAGISTRATE, MAHARAJGANJ, DISTRICT- SIWAN 3. RAM YASH RAM SON OF MAHESH RAM 4. ADALAT RAM SON OF LATE KAULESHWAR RAM, BOTH RESIDENT OF VILLAGE CHAMHAURI, P.S. GAUTAM BUDH NAGAR, DISTRICT- SIWAN 5. CHANDESHWAR RAM SON OF LAKHI RAM, RESIDENT OF VILLAGE CHAMHAURI, P.S. GAUTAM BUDH NAGAR, DISTRICT- SIWAN ----------- FOR THE PETITIONERS : MR. RANJEET KUMAR, ADVOCATE FOR THE STATE : MR. A. AMANULLAH, G.A. IV MR. ANUJ KUMAR, AC TO GA IV ******** P R E S E N T THE HON'BLE MR. JUSTICE SHAILESH KUMAR SINHA S.K.SINHA, J. Heard learned counsels for the petitioner and the State. This writ application is directed against the order dated 27th February, 1998 passed in Criminal Revision No. 311 of 1996 by the 3rd Additional Sessions Judge, Siwan, whereby the order dated 06.09.1996 passed by the respondent no.2 i.e. the Sub-Divisional Magistrate, Mahrajganj, District-Siwan in Trial No. 47 of 1996 under section 133 of the Code of Criminal 2 Procedure has been affirmed and the revision application was dismissed on merits. Learned counsel for the petitioner submits that the aforesaid order dated 06.09.1996 as contained in Annexure-5 passed by the respondent no.2 was contrary to the materials available on record inasmuch as the report of the Advocate Commissioner as contained in Annexure-2 with respect to the measurement of the land in question was not correct, and as such, the Sub- Divisional Magistrate ought not to have accepted the said report of the Advocate Commissioner. It is accordingly submitted that the aforesaid order as contained in Annexure-5 being bad in law deserves to be quashed and the impugned order dated 27th February, 1998 passed in Cr. Rev. No. 311 of 1996 as contained in Annexure-7 equally deserves to be quashed as the respondent no.2 as well as the Court below did not consider the moot question that the petitioner has got right, title and possession over the land in question. Learned counsel further submits that as a matter of fact in the Records of Rights the nature of the land in question was wrongly recorded as a ‘Road’. Learned counsel for the State, on the other hand, submits that a bare perusal of the order as contained in Annexure-5 it appears that the respondent 3 no.2 has recorded its finding considering the materials available on record as also the report of the Advocate Commissioner which has categorically reported that the petitioner who was the second party in the proceeding has encroached the land in question though the Road is wide and people have enough space for their movement. It is further submitted that the order as contained in Annexure-5 as also the impugned order as contained in Annexure-7 do not suffer from any error of law. Considering the rival submissions of the parties and on perusal of the impugned order as also the order as contained in Annexure-5, I find that the respondent no.2 has passed the detailed order considering all the submissions of the petitioner as also the materials available on record including the report of Advocate Commissioner who had gone on the spot and measured the disputed land. On perusal of the report of the Advocate Commissioner, it appears that the petitioner who was the second party in the aforesaid proceeding had encroached upon the land in question which is a ‘Road’ and the correctness or otherwise of the report cannot be a subject matter of consideration under writ jurisdiction. As regards the submission of the petitioner that sufficient evidence were not available on the record, the same equally cannot be looked into as sufficiency or 4 insufficiency of evidence cannot be scrutinized in a writ proceeding. In this view of the matter, I do not find any error in the orders as contained in Annexures- 5 & 7. The writ application accordingly stands dismissed. Patna High Court 28th April, 2011 A.F.R./Manish ( Shailesh Kumar Sinha,J.)