IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.57687 of 2007 1. QUALITY PARADISE FLAT OWNER ASSOCIATION THROUGH ONE OF ITS OFFICE BEARER SHRI SANJEEV, SON OF SHRI S.N.P. VERMA, RESIDING IN FLAT NO. 405, QUALITY PARADISE ARRAH GARDEN ROAD, POLICE STATION – RUPASPUR, PATNA. 2. RAJESHWAR KUMAR SINGH, SON OF LATE SHEO BALAK SINGH, RESIDING IN FLAT NO. 101. 3. AJIT KUMAR SINHA, SON OF CHANDRESHWAR PRASAD SINHA, RESIDING IN FLAT NO. 305. BOTH IN QUALITY PARADISE APARTMENT, POLICE STATION – RUPASPUR, PATNA. ………….. PETITIONER. Versus 1. THE STATE OF BIHAR. 2. SHRI SANJEEV SINGH, EXECUTIVE MAGISTRATE, DANAPUR, PATNA. 3. SHRI RAMJEE SINGH, SON OF LATE BRAHMDEO RAUT, DIRECTOR, APURWA AWAS COLONY, ARRAH GARDEN ROAD, PATNA, POLICE STATION – DANAPUR, DISTRICT – PATNA. 4. SHRI MANOJ KUMAR BHARTI, SON OF SHRI RAM CHANDER PRASAD, MANAGING DIRECTOR, QUICK AND QUALITY CONSTRUCTION PRIVATE LTD. AT SHOP NO. 16, ASHIANA COLONY EXHIBITION ROAD, PRESENTLY RESIDING IN HOUSE NO. 1/D APURWA ENCLAVE, JAGDEO PATH, PATNA, POLICE STATION – DANAPUR, PATNA. …………. OPP. PARTIES. For the Opposite Party No. 3 :- M/s. Y.V. Giri, Sr. Advocate. Raju Giri, Advocate. For the Opposite Party No. 4 :- M/s. J.P. Shukla, Sr. Advoate. R.K. Shukla, Advocate. For the State :- Sri Ramchandra Singh, APP. ----------- 07/ 23.06.2010 This petition is directed against the order dated 05.11.2007 passed by Sri Sanjeev Singh, Executive Magistrate, Danapur in Case No. 615/N 2006 in a proceeding under Section 147 of the Cr.P.C by which it has been observed that the second party is not competent to restrain passage of the first party and this claim can only be made by the third party since the matter concerned is regarding the rights of the parties on the basis of agreement between them and the court concerned is not competent - 2 - to declare the act of the party as illegal and if the second party is dissatisfied with the compromise entered into between his builder and the first party then he may approach the Civil Court of competent jurisdiction and in the meantime ordered that the second party will remove the obstruction. 2. From perusal of the records, it appears that a petition was filed by the opposite party no. 3 here as first party for initiating a proceeding under Section 147 of the Cr.P.C alleging that the resident of Apurva Enclave has got only one Rasta for exit through the Ara Garden Enclave to come to main road through the west of the Quality Paradise and East of Urmila Apartment has been obstructed by the member of the second party who are petitioners herein. 3. It has further been alleged in the said petition that the local police and circle officers prohibited the second party who are the petitioners before this court but they did not obey the direction on the petition by the first party who are opposite party no. 3 here. On the said petition a report was called for from Anchal Amin by the SDO. On the receipt of the report of Anchal Amin, a proceeding under Section 147 of the Cr.P.C was initiated by order dated 29.12.2006. However, the order initiating a proceeding under Section 147 of the Cr.P.C reads that the member of the first party claims to have assessed over the road but the road has been obstructed by the member of the second party and so he is being satisfied with the report direct a proceeding under Section 147 of - 3 - the Cr.P.C to be initiated. 4. However, it is pertinent to mention here that in order initiating a proceeding under Section 147 of the Cr.P.C there is no order about the satisfaction of Magistrate regarding the existence of breach of peace. 5. However, the said order initiating proceeding under Section 147 of the Cr.P.C was challenged before this Court in Cr. Misc. No. 7645 of 2007. The party appeared, filed their show cause and thereafter the application was dismissed. 6. However, the opposite party no. 3 and 4 who were the petitioners and opposite party no. 3 before the Magistrate in a proceeding under Section 147 of the Cr.P.C filed show cause and took the stand about the road alleged to be passing through the west of Quality Paradise Apartment whereas the stand taken by the second party that there was no mention of any road in the west of Quality Paradise Apartment but earlier shown to be land of Kamla Jalan but subsequently the road when brought into existence which was objected by second party, the flat owners and vigilance of PRDA ordered for its demolish. 7. However, both the parties adduced only documentary evidence and no oral evidence was led and on the basis of the documentary evidence itself the impugned order has been passed. 8. Learned counsel for the petitioner, however, contended that though the learned Magistrate holds that he has no jurisdiction to decide the issue about the passage over road in view of the fact - 4 - that there is an agreement between opposite party nos. 3 and 4 and Magistrate in a proceeding under Section 147 of the Cr.P.C is not competent to decide the act done by the parties in pursuance of the compromise between the parties and hence, without deciding the right of the parties has ordered second party to move Civil Court and in the meantime to remove the obstruction so the order directing the 2nd party to remove the obstruction is not sustainable. Further the Magistrate has no jurisdiction to order for removal of the obstruction when other party has not established his right nor Magistrate gave any finding about the right of party. Further the Magistrate under Section 147 of the Cr.P.C gets a jurisdiction to decide the passage only if there is apprehension of breach of peace and the Magistrate being satisfied about the apprehension of breach of peace which only gives jurisdiction to decide the right and pass order under Section 147 of the Cr.P.C. 9. Learned counsel for the opposite parties, however, contended that the Magistrate is not required to record finding regarding continuance or existence of breach of peace at the time of passing the final order. Further that the Magistrate has held the existence of Rasta as mentioned in various documents which has been marked as exhibit and has relied upon decision reported in 1980 (4) SCC 116 (Rajpati Vs. Bachan & Anr.) and further asserted that order initiating the proceeding had been challenged by second party in revision before Hon’ble Court but the same has been rejected, so it attained finality. - 5 - 10. Hence, on the respective submission of the parties, the question for consideration is whether the Magistrate was satisfied about the apprehension of breach of peace and whether the order of the Magistrate has decided the existence of the Rasta and whether the Magistrate has jurisdiction to decide the right of the party without the satisfaction about existence of breach of peace in order initiating the proceeding under Section 107 of the Cr.P.C and the order directing the second party to remove the obstruction can sustain in the eye of law. 11. However, the case of the first party in proceeding under Section 147 of the Cr.P.C who are opposite party no. 3 was that there was a Rasta which has been obstructed by the opposite party no. 2 in proceeding under Section 147 of the Cr.P.C who is the petitioners. However, Section 147 of the Cr.P.C provides that when an Executive Magistrate is satisfied with a report of the Police or upon any other information that a dispute is likely to cause a breach of peace regarding any alleged right of user of any land whether such right claimed as an easement or otherwise, he shall make an order in a writing stating the ground to be so satisfied about existence of breach of peace for right of user and requiring the party concerned to attain the court and then the Magistrate shall receive all evidence and decide whether such right exits and if it appears to the Magistrate that such right exists, he may make an order prohibiting any interference with the exercise of such right. Hence from the section itself, it is apparent that the - 6 - Magistrate gets a jurisdiction to decide the right after his satisfaction about an apprehension of breach of peace and this apprehension of breach of peace itself gives a right or jurisdiction to the Magistrate to decide a right of user of party under Section 147 of the Cr.P.C. However, if there is no satisfaction of the Magistrate about existence of breach of peace, the Magistrate has no jurisdiction to decide the right under Section 147 of the Cr.P.C. However, the proceeding under Section 147 of the Cr.P.C has been initiated by order dated 29.12.2006. However, in the said order dated 29.12.2006 there is no mention at all about the satisfaction of the Magistrate regarding the existence of breach of peace which is as the basic fact which gives jurisdiction to the Magistrate to decide the right whether such right exist. 12. However, under the fact and circumstance of the case reported in 1980 (4) SCC 116 (Rajpati Vs. Bachan & Anr.) there was no clear finding of the Magistrate in the final order that there was apprehension of breach of peace and hence held that finding of breach of peace not required at every stage when there is finding at out set initiating a proceeding under Section 147 of the Cr.P.C. However, in the facts and circumstance of that case in the preliminary order drawn for initiation of proceeding under Section 147 of the Cr.P.C the Magistrate had set out the reasons for holding that a breach of peace existed and so it was held that it is not necessary to held that the breach of peace should continue at every stage. However, under the facts and circumstance of the - 7 - present case at hand even the order initiating a proceeding does not mention about the satisfaction of the Magistrate about the apprehension of breach of peace nor in the entire order sheet itself there is any mention of existence of apprehension of breach of peace at any stage much less in the final order and hence the decision relied upon by the learned counsel for the opposite party is not applied in the fact and circumstance of this case. 13. From the perusal of the record it is apparent that no oral evidence has been adduced in this case that any of the person ever exercised his right over the alleged road as there is no oral evidence in this regard. However, the entire documentary evidence which has been considered by the lower court which are of the nature of an agreement that there will be a road and a road map showing the existence of a road, and in some of them map has been passed by PRDA but there is no evidence at all that any of the person or the member of the Ist party ever exercised their right of passage over those roads. There is no evidence to this effect and their mere assertion in the petition regarding the existence of road will not be evidence regarding their exercise of right of user over the land. The finding recorded by the lower court also showing the agreement between the parties that there shall be a 12 feet drive and further there is an agreement for the existence of the 12 feet wide road. Moreover, there is neither any assertion either in the petition nor any evidence that for which period the right of passage was exercised nor any assertion as to what was the date on - 8 - which the said alleged obstruction was first made. 14. There is no evidence that when accused person used the road as passage when the obstruction was made. There is no mention about specific date either in pleading or petition or any evidence. 15. However, the proviso to Section 147(3) of the Cr.P.C provides that no relief can be granted unless the obstruction made within three months of filing of petition for Section 147 of the Cr.P.C and moreover Section 147 of the Cr.P.C cannot give jurisdiction to decide the right of party based on contract between the parties particularly when there is no satisfaction of Magistrate regarding existence of breach of peace. 16. Learned counsel for the opposite party, however, contended that the petitioner himself challenged the order initiating the proceeding under Section 147 of the Cr.P.C but the said petition was rejected by the Hon’ble High Court and hence it may be deemed to have attained finality and that is not open to challenge as the order has attained finality. 17. However, the submission made by the learned counsel for the opposite party is misconceived as the order challenging the interim order in revision during pendency of proceeding is only momentous and can well be challenged after the conclusion of the said proceeding in appeal or revision and hence, the submission that the petitioner cannot challenge the order of apprehension of breach of peace on the ground that there is no satisfaction of - 9 - Magistrate about the same as it touches the jurisdiction and hence is not sustainable in law. The Magistrate has no jurisdiction to proceed under Section 147 of the Cr.P.C. and the learned counsel for petitioners has raised objection about the existence of jurisdiction challenging the order initiation the proceeding. He can raise the point after the attaining finality as the matter concerns with the jurisdiction. 18. Hence, having regard to the facts that since there is no satisfaction of the Magistrate about the apprehension of breach of peace either in the initial order initiating the proceeding nor in the final order nor at any stage of the proceeding does not give jurisdiction under Section 147 of the Cr.P.C. However, neither there is any evidence about the user of passage nor there is any dates till when the petitioner exercised his right nor mentioning the date when the obstruction was made and further without holding the right of the party the Magistrate cannot pass an interim order for the removal of the obstruction and further Magistrate having no jurisdiction to pass an order in this case as there is no satisfaction of Magistrate recorded regarding apprehension of breach of peace as additional ground for holding that the Magistrate exceeded his jurisdiction and passing the impugned order and hence, the impugned order not sustainable in law is set aside and the petition is allowed. Kundan (Gopal Prasad, J.)