Criminal Rev.No.1000 of 2007 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Rev.No.1000 of 2007 (O&M) Date of decision: 27.3.2009 Fateh Singh ......Petitioner Versus Shiv Shankar and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. R.S.Sihota, Sr. Advocate with Mr.B.R.Rana, Advocate, for the petitioner. Mr.R.M.Singh, Advocate, for the respondents. **** SABINA, J. The petitioner has filed this revision petition challenging order dated 7.3.2007 passed by the Additional Sessions Judge (I), Faridabad, whereby the application under Section 133 of the Code of Criminal Procedure (“Cr.P.C.' for short) was ordered to be set aside. Prosecution story, in brief, as noticed by the learned Additional Sessions Judge (I), Faridabad in para Nos. 2 and 3 of the impugned order are as under:- “Briefly stated the facts of the present application filed Criminal Rev.No.1000 of 2007 (O&M) 2 under Section 133 Cr.P.C. as alleged are that the applicant is a resident of Palwal. Khasra No.1351 measuring 6 kanals and 10 marlas situated in the revenue estate of Palwal is a common passage and is being used by the inhabitants of the village, which is four karam wide. There is a land bearing khasra No.1345 owned by the applicant. The respondents are strong headed persons and they want to construct the shops over the passage in dispute without any right to do so. The applicant has also demarcated the land and found the encroachment raised by the respondents over the land in question. Hence, the present application for removal of the public nuisance has been filed by the applicant. 3. This application as contested by the respondents on the grounds that Fateh Singh filed an earlier application under Section 133 of the Cr.P.C. regarding the same land which has been dismissed and the petitioner was asked to file the separate application after getting properly demarcated the suit land. The land was demarcated and the report was also sent to the Court and that report was also sent to the the Secretary, Municipal Committee, Palwal asking him to remove the encroachment and that order was issued on 21.7.2000 but no action was taken by the M.C. Palwal. Moreover, Criminal Rev.No.1000 of 2007 (O&M) 3 those reports were made at the back of the respondents. The respondent has not encroached upon the passage bearing Khasra No.1351. Rather petitioners want to make encroachment over the passage. The land was also demarcated on 24.1.1988 and no encroachment was made therein. Khasra No.1351 was remained under water and it has never been used as a passage on account of water accumulate therein.” Learned counsel for the petitioner has submitted that the respondents had encroached upon Shamlat land and hence, the order passed by the Sub Divisional Magistrate, Palwal was liable to be restored. Learned counsel for the respondents, on the other hand, has submitted that no encroachment over khasra No.1351 was established on record and in these circumstances, the application under Section 133 Cr.P.C. was rightly set aside by the Additional Sessions Judge (I), Faridabad. In the present case an application was filed by the petitioner under Section 133 Cr.P.C. alleging that Khasra No.1351 measuring 6 kanals 10 marlas, which was being used as a passage by the inhabitants of the village, had been encroached upon by the respondents. Learned Additional Sessions Judge (I), Faridabad has observed in the impugned order that there was no dispute that Khasra No.1351 was a passage measuring 6 kanals 10 marlas. As Criminal Rev.No.1000 of 2007 (O&M) 4 per the report (Annexure RW-5/E) of the Local Commissioner, no encroachment was found over khasra No.1351 rather it showed that khasra No.1352 was lying vacant on the Eastern side from where the alleged encroachment was claimed by the petitioner. Learned Additional Sessions Judge (I), Faridabad has further observed that there was another report of Local Commissioner on the file which also did not depict any encroachment made by the respondents. On 21.1.2001, Tehsildar Palwal had demarcated the land and was of the opinion that there was a wrong entry in the revenue record. Shiv Shankar moved an application for demarcation of his land bearing Khasra No.1352 and it was done on 3.7.2000 by the Local Commissioner but no encroachment was found over Khasra No.1351. A perusal of the order of the trial Court, on the other hand, reveals that with the consent of both the parties, demarcation was again got done and report of demarcation in this regard was submitted on 4.1.2006. As per the said report, the encroachment had been done on the disputed passage in Khasra No.1351 in the following manner:- 1. There is four karam encroachment in the passage in front of Ist shop 1347; 2. 2nd shop is 10 ft. in Khasra No.1352 and 20 ft. in the passage; 3. 3rd shop is 18 ft. in 1352, 12 ft. in the passage; Criminal Rev.No.1000 of 2007 (O&M) 5 4. 4th shop is 22 ft. in 1352 and 8 ft. in passage.” In these circumstances, it was held that from the demarcation report dated 4.1.2006, it was established that the respondents had encroached upon passage No.1351 by constructing the shops and had, thus, created public nuisance. It was ordered that the respondents be ejected from the disputed passage. Learned Additional Sessions Judge (I), Faridabad has, however, not discussed the latest demarcation report dated 4.1.2006, which was made the basis of the order passed by the Sub Divisional Magistate, Palwal. This is an error apparent on the record. Accordingly, this revision petition is allowed. The impugned order dated 7.3.2007 passed by the learned Additional Sessions Judge (I), Faridabad is set aside and the case is remanded back to the learned Additional Sessions Judge (I), Faridabad for a fresh decision after taking into account all the material available on record in accordance with law. (SABINA) JUDGE March 27, 2009 anita