HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MMO No. 22 of 2004 Decided on: 2.4.2008 Chatar Singh ………Petitioner. Versus State of H. P. & others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the petitioner: Mr.Rakesh Jaswal, Advocate. For respondents No.1 and 3: Mr.Anil Jaswal, Deputy Advocate General and Mr.J.S. Guleria, Law Officer. For respondent No.2: Mr.R.K. Gautam, Senior Advocate, with Mr.Naveen Bhardwaj, Advocate. V.K. Ahuja, J (Oral): This is a petition filed under Article 227 of the Constitution of India read with Section 482 of the Cr.P.C. against the order passed by the learned Sessions Judge, Bilaspur on 9th December, 2003, vide which the petition filed by the petitioner, against the order passed by SDM, Ghumarwin on 12.6.2002 in proceedings under Section 133 Cr.P.C., was affirmed. Briefly stated the facts of the case are that respondent No.2 Hardayal Singh filed an application before the SDM, Ghumarwin in regard to some encroachments on public path being sought to be made by the present _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - petitioner. The proceedings under Section 133 Cr.P.C. were initiated against the petitioner by the SDM, Ghumarwin resulting in the order having been passed by the SDM on 12.6.2002 vide which he directed the petitioner to remove the raised structure within 10 days. A revision petition was preferred under Section 397 Cr.P.C. by the petitioner against the order passed by the ld. SDM, Ghumarwin, but without success. The petitioner has filed the present petition before this Court challenging the order passed by the learned Sessions Judge. A notice of the petition was issued. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the petitioner were that before passing the impugned order, the SDM had mainly relied upon the spot inspection conducted by him and without getting any local investigation made under Section 139 Cr.P.C., did not conclude from any evidence including the report of the revenue expert, if any, that this structure has been raised by the present petitioner over the public path or the land in possession of the general public. I have gone through the order passed by the ld. SDM. Before I proceed with the facts of the case, I may clarify that once the petitioner has availed the remedy of filing a revision petition against the order passed by the ld.SDM, no second revision petition lies and accordingly, the petitioner had rightly filed the present petition under Section 482 Cr.P.C. However, it may also be clarified that the powers of this court under Section 482 Cr.P.C. are very limited since this Court is not sitting in revision against the order passed by the ld. SDM, but these powers can be exercised only in case the order suffers from apparent illegality and, therefore, the interference is called from this court. - 3 - Coming to the facts of the case, a perusal of the record of the SDM shows that he had issued a notice to the petitioner under Section 133 Cr.P.C. to remove the obstruction, if any, over the land which is recorded as Charand, as per the copy of the jamabandi placed on record by the State of H.P. It appears that the ld. SDM observed on 7.5.2002 that he received a report that despite stay order, the present petitioner was still going ahead with the construction work. In order to ascertain the facts, the ld. SDM fixed the date for spot inspection by him as 8.5.2002. The spot inspection was conducted by the ld. SDM on 8.5.2002 and he observed as under: “8.5.2002. Spot was inspected in the presence of both parties. There is a passage with width 7 Karam but on the spot there is hardly one Karam wide passage which is not enough to meet the requirement, the passage was found blocked by the respondent Chatar Singh who is planning to put slab on the pillars so raised by him despite stay order granted by this Court. Once again he is directed not to disobey, otherwise contempt proceedings will be got initiated against him and the structure so raised would be got dismantled. He is directed to report on 15.5.2002 after removing the obstruction from the public path. Announced. Sd/- S.D.M.” A perusal of the order sheet, dated 24.5.2002, of the SDM shows that the report was sought from the Tehsildar about the spot and the present petitioner was directed to file reply after removing the structure. On 12.6.2002, it was observed that the report of the Tehsildar has been received and the present petitioner has raised pillars despite stay order granted by the court and, therefore, the conditional order issued earlier was made absolute and notice was issued to the petitioner under Section 141 Cr.P.C. to remove the raised structure within 10 days. - 4 - A perusal of the record further shows that there is no report of the Tehsildar on record after he was directed to submit his report on 24.5.2002. The report placed on record of the ld. SDM is dated 7.7.2001 before passing of the said order by the ld. SDM. A perusal of the subsequent order sheet, dated 16.8.2002, of the ld.SDM shows that no letter could be written to the Tehsildar due to rush of work and compliance was ordered to be done and then case was adjourned to 6.9.2002 during which period the case file was called from his office as per the requisition of the office of the learned Sessions Judge, Bilaspur. It is, therefore, clear that in passing the impugned order on 12.6.2002, the SDM made a reference to the report of the Tehsildar which was not on record as had not been received. No findings were given by the SDM that this structure or obstruction has been caused by the petitioner over the public path or the land recorded as Charand. Before passing the order, the SDM was required to satisfy himself that some obstruction has been caused by the petitioner on the public path, which is not so and it appears that the SDM had come to the conclusion that the obstruction was caused on the public path, without asking the present petitioner to file a reply if he has raised the construction over the public path or the land entered as Charand in the revenue record. The notice issued to the petitioner was prior to the date when the construction was raised by him, when he had only collected the material, as per the record. Therefore, a fresh notice was required to be issued to him and the petitioner was required to be given an opportunity to explain if the construction has been raised by him on the land entered as Charand or it was causing obstruction to public path, if any. - 5 - Thus, this order suffers from an illegality since the petitioner was not given any opportunity to reply to the notice and no report of the Tehsildar was sought and in coming to this conclusion, it appears that the SDM relied upon his own inspection conducted on 8.5.2002 and the observations made by him in regard to the construction at the spot. However, this fact was required to be proved from the report of the revenue expert if the construction so raised by the petitioner was on the land entered as Charand in the revenue record. Apart from the above, I may also observe that once the spot inspection was conducted by the SDM, he was required to record the inspection note and should have given an opportunity to both the parties to examine the said inspection report and make submissions, if any, in regard to that inspection note so that the parties could get an opportunity to make submissions. In view of the above discussion, it is clear that the order passed by the ld. SDM suffers from an illegality and cannot be sustained. Therefore, the case is remanded to the SDM for fresh decision. The parties, through their learned counsel, are directed to appear before the SDM on 28th April, 2008, who shall issue notice to the parties if they are not present on that day and proceed with the case by passing a notice under Section 133 Cr.P.C. to the petitioner to file his reply and proceed with the case. The SDM shall try to decide the matter within three months of the date fixed for hearing being old case. The petition is partly allowed to this extent only. A copy of this order be sent to the SDM concerned alongwith the record of the said court. (V.K. Ahuja), April 2, 2008 Judge. (TILAK)