IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.1190 of 2008 SITARAM MANDAL @ RAJARAM MANDAL, S/o. Dahu Mandal, r/o. village- Sahadur, P.O.Rana, P.S. Hathauri, District-Samastipur. Versus THE STATE OF BIHAR Counsel for the Petitioner : Mr. Sashi Shekhar Dvivedi, Sr. Advocate. Mr. Ravi Shankar Dvivedi, Advocate, Mr. Lakshman Lal Pandey, Advocate, Mr. Ranjan Kumar Dubey, Advocate. Counsel for the Respondents : Mr. J.P. Karn, AAG-9. ----------- 3 26.03.2009 This application was heard at the stage of admission. Since a point of law is raised the matter was heard and considered on perusal of the record and on the submission of the counsel for the petitioner and the learned AAG-9. Vide order dated 20.12.2000 a proceeding under section 147 Cr.P.C. was initiated by the S.D.O., Rosera on receiving the police report that there was apprehension of breach of peace regarding a dispute over a passage land in length 30 Kari and width 40 Kari (one Kari approximate 8 inch) from the house of the petitioner leading up to a well 2 under Khesra No.1252. In the order initiating inquiry it was not disclosed as to from which time the obstruction leading to dispute existed or it was made. The enquiry was concluded and vide order dated 29.11.2001, the S.D.O., passed an order under Section 147 restraining the petitioner from making obstruction and also directed for removal of obstruction. The passage way is admittedly lying in the land of the petitioner. Learned counsel for the petitioner referred to Annexure-4, the plaint of Title Suit No.7 of 2000 before Munsif. It is pointed out that the O.P. No.3 Gauri Shankar and O.P. No.4 Ganga Prasad Mandal and others have filed the title suit against the petitioner and others admitting that the passage lies in the land of the petitioner and others and have prayed for a declaration for their right of passage over the land for going to the well from their houses. A prayer has also been made in the plaint of the suit for permanent injunction restraining the petitioner/defendants and also for direction to removal of the obstruction. Learned counsel for the petitioner points out in para-15 of the plaint that the plaintiff specifically asserted that the 3 obstruction was raised for the first time on 18.05.1999 by way of constructing and lying out plinth for construction of wall over the portion of the link road i.e., the passage way. On the basis of what has been stated in para-15 of the plaint it was stated by the petitioner’s counsel that the obstruction is stated to have been made on 18.05.1999 and the continuation of the obstruction was also alleged and a prayer for permanent injunction and removal of obstruction has also been made before the learned Munsif where the suit was filed. The S.D.O. initiated the proceeding under Section 147 Cr.P.C. vide order dated 20.12.2000 on receipt of the police report. Learned counsel for the petitioner referred to the proviso under Sub-Section (3) of Section 147 Cr.P.C., wherein it is provided that no such order shall be made where the right is exercisable at all times of the year unless such right has been exercised within three months next before the receipt under Sub- section (1)((i) of the report of the police officer or the other information leading to institution of the enquiry. 4 Sub-section (1) of Section 147 provides that when the Executive Magistrate is satisfied from the report of a police officer or upon other information that a dispute likely to cause a breach of peace exists regarding any alleged right of user of any land he shall make an order in writing stating his grounds of his being so satisfied and will require the parties to attend his Court and put written statement regarding their claims. Sub-sections (2) & (3) of Section 147 provide that Magistrate on consideration of the materials produced before the Magistrate on being satisfied that such right exists he may make an order prohibiting any interference with the existence of such right. It is under this authority as provided under Sub- sections (1), (2) & (3) of Section 147 that the S.D.O. has passed the order dated 29.11.2001 restraining the petitioner from making obstruction and also directing for removal of this obstruction. But under the provisions as contained under proviso to Sub-section (3) of Section 147 of the Cr.P.C. it is categorically provided that no such order shall be made unless such right has been exercised within three months next before the receipt under Sub- 5 section (1) of the report of the police officer. In this case the inquiry was initiated on 20.12.2000. In the order of initiation of inquiry it is not disclosed as to when the obstruction was first made or that such right was exercised within three months next before the receipt of the report of the police officer. It was specifically asserted in para-15 of the plaint of the suit filed by the O.P. Nos. 3, 4 and others that the illegal obstruction was made by the petitioner and others on 18.05.1999 by way of making plinth for construction of wall over the passage way and the continuation of the obstruction is also stated. Thus, the obstruction is admitted to have been made much prior to three months and exercise of such right is not claimed within three months next before the date of initiation of the proceeding under section 147 Cr.P.C. by the S.D.O., Rosera. The proviso to Sub-section (3) of Section 147 Cr.P.C. bars initiation of such proceeding. In such view of the matters, the impugned order dated 20.12.2000 and the consequential final order dated 29.11.2001 and also the confirmation of the same as made by the learned Addl. Sessions Judge, Rosera vide order 6 dated 18th August, 2008 under Cr. Revision No.109 of 2002 cannot be sustained under law. Therefore, these orders are set aside and the application is allowed. Mkr. (C.M. Prasad, J.)