Patna High Court
CHANDRADEO PASWANversusTHE STATE OF BIHAR, THROUGH THE DISTRICT MAGISTRATE, PATNA.
- Decided
- Disposal
- ALLOWED
- Bench
- ARUN KUMAR JHA
Holding
The order dated 26‑06‑2023 passed by the Sub‑Divisional Magistrate is set aside due to material irregularity and lack of statutory satisfaction, and the revision petition is allowed.
Summary
The petitioners, led by Chandradeo Paswan, challenged a series of orders issued by the Sub‑Divisional Magistrate (SDM) Patna Sadar concerning a land dispute with Opposite Party No. 7 over a boundary wall and a chhajja. The dispute originated from a writ petition (C.W.J.C. No. 224 of 2022) seeking removal of an alleged encroachment, leading to a proceeding under Section 147 of the CrPC. The SDM issued a final order on 19‑04‑2023, which was later recalled and re‑issued on 26‑06‑2023 after a contempt proceeding. The petitioners argued that the SDM lacked power to recall the order, failed to record satisfaction of a breach‑of‑peace, and that Opposite Party No. 7 made false statements in an affidavit. The court examined whether the SDM’s recall was lawful, whether procedural requirements of Section 147 were met, and whether the order was tainted by irregularities. Finding material irregularities, including the absence of recorded satisfaction and improper recall, the court set aside the SDM’s order dated 26‑06‑2023 and allowed the revision petition.
Issues considered
- The SDM’s authority to recall or review its own order under Section 362 CrPC.
- Whether the SDM recorded satisfaction that the dispute was likely to cause a breach of peace as required by Section 147 CrPC.
- Whether the order dated 26‑06‑2023 is void for procedural irregularity and lack of jurisdiction.
- Whether Opposite Party No. 7 made a false statement in the counter‑affidavit.
Legislation cited
- Code of Criminal Procedure — s. 145, 147, 362
Subjects
- land dispute
- encroachment
- Section 147 CrPC
- false affidavit
- recall of order
- revision petition
- breach of peace
- procedural irregularity
- jurisdiction
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.676 of 2023
Arising Out of PS. Case No.- Year-0 Thana- District- Patna
======================================================
Chandradeo Paswan S/O Late Rameshwar Paswan Resident Of New
Purandarpur, Near Jakkanpur, P.O- G.P.O., Jakkanpur, Patna.
... ... Petitioner/s
Versus
1. The State Of Bihar through The District Magistrate, Patna. Bihar
2. The District Magistrate, Patna. Bihar
3. The Senior Superintendent of Police(SSP), Patna. Bihar
4. The Sub Divisional Magistrate, Patna Sadar, Patna Bihar
5. The Circle Officer, Sadar, Patna. Bihar
6. The Officer-In-Charge, Sho, Jakkanpur Police Station, Patna. Bihar
7. Dwivedy Surendra S/o Sheo Pratap Dubey R/O Shiv Shanti, Plot No.- B/10,
Road No.-1, Vivek Bihar, Hanuman Nagar, Kankarbagh, Patna, P.O- Lohiya
Nagar, P.S- Patrakar Nagar, Distt.- Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Jagjit Roshan, Advocate
Mr. Anjani Kumar, Advocate
Mr. Apul, Advocate
For the State : Mr.Zainul Abedin, APP
For O.P. No. 7 : Mr. Subodh Kumar Jha, Advocate
Mr. Nagendra Dubey, Advocate
Mr. Nagmani Kumar, Advocate
Mr. Shivam, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 11-03-2026
The instant criminal revision has been filed
against the order dated 25.06.2023 passed by learned Sub-
divisional Magistrate, Patna Sadar, Patna under Section 147 of
the Code of Criminal Procedure in Misc. Case No. 1084(M) of
2022, whereby and whereunder the learned Sub-divisional
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Magistrate, Patna Sadar, Patna has recalled/reviewed the final
order dated 19.04.2023 passed in miscellaneous proceeding
bearing Misc. Case No. 1082(M) of 2022. Further, by way of
interlocutory application the petitioner added the following
prayer in his revision petition:-
"(i) For taking appropriate
legal action against Opposite Party No. 7
for making false statement on Oath/Affidavit
in Para No. 8 of the Counter Affidavit filed
by Opposite Party No. 7 in the present
Revision Application bearing Criminal
Revision No. 676 of 2023.
(ii) For setting up an
appropriate enquiry with regard to making a
false statement on Oath/Affidavit in Para
No. 8 of the Counter Affidavit filed by the
Opposite Party No. 7 in the present Revision
Application bearing Criminal Revision No.
676 of 2023 and further recommend for
appropriate proceeding as per law for filing
false statement on Oath/Affidavit before this
Hon'ble High Court in Criminal Revision
No. 676 of 2023."
2. Briefly stated, the facts of the case are that one
writ petition bearing C.W.J.C. No. 224 of 2022 was filed by
Opposite Party No. 7 for issuance of an appropriate Writ
directing the Respondent Nos. 2 & 3 (here Opposite Party Nos.
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2 & 3) to depute a Magistrate along with adequate Police Force
including S.H.O., Jakkanpur Police Station (Opposite Party
No.65) and Circle Officer, Patna Sadar (Opposite Party No. 5)
to maintain law and order in construction of wall on his own
land measuring one katha, one dhur and four dhurki (40 Feet x
36 Feet) Total 1440 Sq. Ft. in Circle No. 260, Khata No. 11,
Tauzi No. 247, Plot No. 122, 123 situated at Mohalla New
Purandarpur, P.S. - Jakkanpur, patna in the light of measurement
report submitted by Anchal Amin in Measurement Case No.
34/2007-08. It appears that without issuing notice to the present
petitioner an interim order dated 28.06.2022 was passed in
C.W.J.C. No. 224 of 2022 directing for removal of the Khatal
from the raiyati land of the petitioner and further vide order
dated 04.07.2022 passed in C.W.J.C. No. 224 of 2022, the
District Magistrate was directed to visit the site personally and
to ensure that encroachment made by the private parties is
removed forthwith and further direction was given to register
criminal case against the encroacher who violated the orders of
this Court. In this manner, the private Khatal of the petitioner
was removed from ancestral property. When the petitioner got
the knowledge of the said order, he appeared suo motu in the
writ petition on 11.07.2022 and filed a counter affidavit on
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12.07.2022 and supplementary counter affidavit on 30.07.2022
stating all the facts. However, in the light of order dated
04.07.2022 passed in C.W.J.C. No. 224 of 2022, the District
Magistrate, Patna along with Additional Collector (Revenue),
Patna, Circle Officer, Patna Sadar, Patna, S.H.O., Jakkanpur
Police Station, Revenue Karamchari, Anchal Amin, opposite
party no. 7 and the petitioner made inspection of the plot in
question on 07.07.2022 and prepared a joint inspection report
with following findings:-
(i) Plot in question belongs to Mauza -
Purandarpur, Khata No. 11, Khesra No. 122,
(ii) Opposite Party No. 7 has constructed
boundary wall on part of the plot in
question, bearing 1 Katha, 1 Dhur, 4 Dhurki
(40 Feet x 36 Feet) and construction of
boundary wall is in progress,
(iii) The Khatal of the petitioner on the
western side of the plot has been removed by
the SHO, Jakkanpur and C.O., Patna Sadar
in compliance of order dated 28.06.2022.
(iv) Opposite Party No. 7 states that the
petitioner has constructed wall on the
western side by saying that it was raiyati
land,
(v) Opposite Party No. 7 claimed that wall
on the western side was encroachment and
construction of Chhajja on the northern side
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was encroachment though petitioner stated
that Chhajja was constructed on his land.
3. The SHO, Jakkanpur Police Station and Circle
Officer, Patna Sadar were directed to enquie into the matter and
prepare a site map. Accordingly, a report dated 07.07.2022 was
prepared suggesting the nature of land was raiyati and the basis
of claim was registered document. Thus, in the light of these
facts, report dated 07.07.2022 was sent to the learned SDM,
Patna Sadar by the Circle Officer vide letter No. 5447 dated
07.07.2022 to initiate a proceeding under Section 147 of the
Code of Criminal Procedure (In short 'the CrPC'). On the basis
of recommendation letter No. 5447 dated 07.07.2022 of the
Circle Officer, Patna Sadar; and also on the basis of joint report
dated 07.07.2022 by the CO, Patna Sadar and SHO, Jakkanpur
Police Station, a proceeding under Section 147 of the CrPC was
initiated in connection with Plot bearing Khata No. 11, Plot No.
122, Rakba - 1 katha, 1 dhur, 4 dhurki. Accordingly, notice was
issued on 08.07.2022 and from the notice it transpired that
dispute related to construction of Chhajja by the petitioner on
the northern side of the plot of Opposite Party No. 7 in the
proposed 4 feet Rasta. Notice was issued to both the parties and
who were directed to file their respective show cause by
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14.07.2022. Opposite Party No. 7 filed his show cause on
11.10.2022 and the present petitioner filed his show on
19.12.2022. It further transpires that the writ petition bearing
C.W.J.C. No. 224 of 2022 was finally disposed of on 03.01.2023
mentioning that both the parties at Bar have agreed that
proceeding under Section 147 of the CrPC had been initiated by
the SDM, Patna Sadar, Patna and opposite parties have appeared
and filed their show cause and thus the learned SDM, Patna
Sadar, Patna was directed to dispose of the proceeding under
Section 147 of the CrPC within a period of two months. It was
further directed that, if any, encroachment was found on the
subject land, the authority concerned shall proceed in
accordance with law for removal of encroachment. After two
months, opposite party no. 7 filed a contempt petition bearing
M.J.C. No. 872 of 2023 against the interim orders dated
04.07.2022 and 10.11.2022 passed in C.W.J.C. No. 224 of 2022.
Further, case of the petitioner is that the petitioner was not
issued any notice in the contempt proceeding and without giving
opportunity of hearing to the present petitioner, the learned Co-
ordinate Bench proceeded with the contempt application on an
interim order although final order has been passed in the said
case. Vide order dated 05.04.2023 passed in M.J.C. No. 872 of
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2023, the learned Co-ordinate Bench heard the contempt
application and vide order dated 12.04.2023, learned counsel
for the State was granted last chance of one week to file show
cause. During the pendency of contempt proceeding bearing
M.J.C. No. 872 of 2023, the SDM, Patna Sadar, Patna passed
the final order dated 19.04.2023 in Misc. Case No. 1084(M) of
2022 and this fact was brought to the notice of this Court in
contempt proceeding by filing show cause on 20.04.2023. The
validity of final order dated 19.04.2023 passed in Misc. Case
No. 1084(M) of 2022 came up for consideration in contempt
proceeding bearing M.J.C. No. 872 of 2023 and vide order dated
20.04.2023, the learned SDM, Patna Sadar was directed to
appear on 26.04.2023. Thereafter, vide order dated 26.04.2023,
the learned SDM, Patna Sadar was directed to take corrective
steps in accordance with law and pass a fresh order after hearing
both the parties as the final order has been passed in bala bala
manner without hearing the parties, particularly opposite party
no. 7. Thus, in the light of order dated 26.04.2023, the final
order passed in Misc. Case No. 1084(M) of 2022 was recalled
by the learned SDM, Patna Sadar vide order dated 28.04.2023.
On notice the petitioner appeared and opposed the recalling of
the final order stating to be barred under Section 362 of the
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CrPC and also challenged the hearing of the proceeding. A
report was called for from the DCLR, Patna Sadar by the SDM,
Patna Sadar and DCLR, Patna Sadar submitted his report dated
10.05.2023 which is a joint report sent by DCLR, CO and the
Revenue Karamchari, Patna Sadar. This report specifically
mentioned that father of opposite party no. 7 purchased 1 katha
1 dhur 4 dhurki of land through registered sale deed and in the
northern side of plot there was a 4 feet wide rasta in which 2
feet was to be left by opposite party no. 7 and 2 feet by Jhari
Paswan. From the spot inspection this fact also came to the
notice that opposite party no. 7 has constructed boundary wall
on the entire plot which has been purchased by his father. But
the petitioner has left 2 feet on the surface but constructed roof
and Chhajja on the 2 feet left by him. During inspection this fact
was also noticed that there is 40 feet x 8 feet space on the
western side which is a vacant land which was closed at
southern end and nobody used it for passage. The said vacant
land is not shown as Rasta in the registered sale deed of
opposite party no. 7. Thus, both the parties have not complied
the terms of registered sale deed as at one hand, the opposite
party no. 7 has not left 2 feet from his share and has constructed
boundary wall on the entire plot without leaving 2 feet land
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and the petitioner has left 2 feet on the surface but constructed
Chhajja on the upper floor which has come over the boundary
wall of opposite party no. 7. Therefore, a wrong report has been
given that a Chhajja was wrongly constructed whereas as per the
registered sale deed both the sides have been allowed to open
doors and windows including Chhajja in that 4 feet of land.
Further case of the petitioner is that though the learned SDM,
Patna Sadar received the report of the DCLR, Patna Sadar
earlier but the learned SDM again called for report on two
points:-
(a) Status of title on the western side of the
plot of opposite party no. 7 in which he is
claiming rasta,
(b) The available rasta on the northern side
is sufficient or not.
Thereafter, some adjournments were granted and
it appears learned SDM, Patna Sadar finally passed the order on
25.06.2023. The petitioner received certified copy on
08.08.2023. It further transpires an amended order vide Memo
No. 2992 dated 27.06.2023 was passed stating that in Misc.
Case No. 1084(M) of 2022, the final order was passed on
26.06.2023 but due to mistake it was stated 25.06.2023 and
thus, it was to be read as 26.06.2023 instead of 25.06.2023. The
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petitioner did not receive the certified copy of the order and the
proceeding of contempt has been going on and vide order dated
19.07.2023 passed in M.J.C. No. 872 of 2023, the Circle
Officer, Patna Sadar appeared in the court and was directed to
get the site measured again so that there is no dispute.
Thereafter, the petitioner, on 27.07.2023 preferred L.P.A. No.
915 of 2023, challenging the orders dated 04.07.2022 and
10.11.2022 as the contempt proceeding has been initiated
against the said order. L.P.A. was dismissed as withdrawn with
liberty to file a proper appeal vide order dated 31.07.2023. In
the light of liberty granted to the petitioner, a fresh L.P.A. No.
941 of 2023 was filed on 02.08.2023 but the same was
converted into miscellaneous appeal with the direction of
learned Division Bench vide order dated 23.08.2023 and a new
case number bearing M.A. No. 570 of 2023 was issued. While
issuing notice to respondent nos. 7 to 10 in the miscellaneous
appeal, interim stay was granted as against the order impugned
for a period of one month. In the light of order dated 25.06.2023
passed by learned SDM, Patna Sadar, it is claimed that the
opposite party no. 7 disturbed the peaceful possession of the
petitioner on 40 feet x 8 feet space on the western side of the
plot of opposite party no. 7 which is a vacant raiyati land of the
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petitioner. Thus, it has been prayed that opposite parties be
directed to restore the possession of said land to the petitioner.
4. By filing I.A. No. 01 of 2024 petitioner made
amendment in the main revision petition and added further two
prayer. The petitioner contended that in paragraph no. 8 of the
counter affidavit, opposite party no. 7 has given a false
statement that "repeatedly direction was given to show the
documents related to the encroached land but he failed to
produce any document before this Hon'ble Court." The
petitioner submitted that in C.W.J.C. No. 224 of 2022 notices
were never issued to the petitioner and the petitioner appeared
suo motu in the said writ petition on 11.07.2022 and
recommendation for initiating proceeding under Section 147 of
the CrPC was made on 07.07.2022 then it was not possible that
this Court demanded document as claimed by opposite party no.
7 and statement given by opposite party no. 7 is false statement.
5. Learned counsel appearing on behalf of the
petitioner submitted that the impugned order is bad in the eye of
law as well as on facts. The learned SDM, Patna Sadar issued
notice in the present proceeding only for the purpose that the
dispute relates to construction of Chhajja by the petitioner on
the northern side of the plot of opposite party no. 7 in the
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proposed 4 feet rasta and accordingly, show cause was filed by
both the parties. But in the impugned order completely new
issues were decided for which notice was never issued. Learned
counsel further submitted that once final order has been passed
on 19.04.2023, it was not open for the learned SDM, Patna
Sadar to recall/review the order except to correct clerical or
arithmetical error as provided under Section 362 of the CrPC.
Learned counsel further submitted that the court becomes
functus officio after signing the judgment or final order
disposing of a case and for this reason could not review its
earlier order. Learned counsel referred the decisions of Hon'ble
Supreme Court in the case of Mohammed Zakir Vs. Shabana
& Ors., 2018(3) PLJR (SC) 379 and also in the case of Sanjeev
Kapoor Vs. Chandana Kapoor & Ors., 2020(2) PLJR (SC) 19,
wherein it has been held by the Hon'ble Supreme Court that
criminal justice delivery system does not cloth criminal court
with power to alter or review the judgment or final order
disposing the case except to correct the clerical or arithmetical
error. It has further been held that however patently erroneous
the earier order be, it can only be corrected in the process
known to law and not under Section 362 of the Cr.P.C. Learned
counsel also referred to a decision of learned Single Judge of
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this Court in the case of Sri Haridwar Pandey Vs. The State of
Bihar through Vigilance Department, in 2015(1) PLJR 901 on
the same point.
6. Learned counsel next submitted that the
learned SDM further failed into error by directing the Circle
Officer for measurement without appreciating the documents
and the sale deed. Learned SDM, Patna Sadar did not appreciate
terms of the sale deed and came to the conclusion that
construction of Chhajja is an encroachment but the same is a
wrong finding. The learned SDM, Patna Sadar even overlooked
the report dated 10.05.2023 submitted by DCLR, Patna Sadar.
The learned SDM, Patna Sadar further manipulated the records.
On hand hand, he called for a report vide letter No. 2921 dated
26.06.2023 from the D.C.L.R., Patna Sadar and on the other
hand, passed the impugned order on a back date, i.e.,
25.06.2023 and later on, tried to justify it by amendment order
dated 27.06.2023 stating that final order was passed on
26.06.2023 but due to mistake it was stated as 25.06.2023.
Learned counsel further submits that 25.06.2023 was a Sunday.
Therefore, there is gross illegality/irregularity in passing of
order by learned SDM, Patna Sadar. Learned counsel further
submitted that the learned SDM did not record his satisfaction
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that there was possibility of dispute causing a breach of peace
and hence, the essential condition under Section 147 of the
CrPC is not fulfilled. Further, there is no recording of the fact
that the opposite party no. 7 has exercised any right with regard
to land in question within three months when the matter was
reported to the authority. In support of his contention, learned
counsel referred to two decisions of this Court in the case of
Guru Govind Singh & Ors. Vs. The State of Bihar & Anr.,
2017(2) PLJR 715 and in the case of Ramashish Mahto & Ors.
Vs. The State of Bihar & Anr., 2023(4) PLJR 865, wherein it
has been held that it is mandatory for the Executive Magistrate
to record his satisfaction that there exists a dispute, which is
likely to cause a breach of peace and unless such satisfaction is
reached and recorded, the Magistrate cannot make an order
under Section 147 of the CrPC. Thus, learned counsel submitted
that the impugned order could not be sustained and needs
interference by this Court in the present revision petition.
7. Learned counsel appearing on behalf of
opposite party no. 7 vehemently contended that the present
revision petition is not maintainable as by filing the present
revision petition, the petitioner is seeking review of the order
passed by the learned Co-ordinate Bench in M.J.C. No. 872 of
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2023. The petitioner has suppressed the material facts and has
made misleading and false submissions and such submissions
are fit to be rejected. The petitioner failed to produce any
document related to encroached land despite repeated direction
of this Court while hearing the matter. Even when the District
Magistrate, Patna along with other officials have been making
enquiry and measurement of land in question on 07.07.2022 and
requested the petitioner to produce the document in respect of
his claim over the encroached land, the petitioner failed to show
such document to justify his claim. For this reason, the District
Magistrate, Patna directed the Circle Officer, Patna Sadar for
initiating a proceeding under Section 147 of the CrPC for
declaring 8 feet wide and 40 feet long passage/rasta as no man's
land/public road and on such report of Circle Officer, the
learned SDM initiated a proceeding under Section 147 of the
CrPC in respect of land 8 feet wide and 40 feet long and other
encroachment made by the petitioner. Learned counsel further
submitted that the petitioner in this case has been trying to
challenge the recalling of orders passed by learned Single Judge
in contempt proceeding before this Bench which cannot be
looked into by this Court. Moreover, the question over validity
of the order passed by the learned Single Judge has already been
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raised before the Hon'ble Division Bench in M.A. No. 570 of
2023 which is pending for adjudication. On this ground alone,
the present revision petition is fit to be dismissed. Learned
counsel further submitted that since the order dated 19.04.2023
passed in Misc. Case No. 1084(M) of 2022 was ex-parte and
there was error in record and for this reason, the learned Single
Judge directed learned SDM, Patna Sadar to make necessary
correction and to pass a fresh order after hearing both the
parties. Hence, the order passed by the learned SDM is not
without jurisdiction. Learned counsel further submitted that the
allegation of not leaving 2 feet wide land towards north of his
boundary against opposite party no. 7 is incorrect as he has left
2 feet towards north of his boundary whereas the petitioner has
not left any such land as claimed by him towards north of his
house over the boundary of opposite party no. 7. Learned
counsel further submitted that there is no manipulation in the
record of learned SDM, Patna Sadar and as it was only a
typographical error in date of the order and the same was
corrected. Learned counsel further submitted that the
submission regarding report of DCLR not being taken into
consideration is not of any significance as the DCLR did not
make enquiry in presence of opposite party no. 7 and hence, his
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report has no legal force. Learned counsel reiterated that there is
no question of learned SDM not following the provisions of
Section 362 of the CrPC. The learned SDM passed the order in
compliance of orders of learned Single Judge of this Court in
M.J.C. No. 872 of 2023. Once this Court came to a finding that
the order passed by the learned SDM was without hearing of
opposite party no. 7 and there was error in records, the learned
Single Judge rightly directed learned SDM to pass order afresh
after hearing both the parties. Therefore, there is no illegality in
the impugned order. Learned counsel further submits that the
petitioner has failed to show any irregularity or impropriety in
passing the impugned order by learned SDM and thus, the
criminal revision petition is not maintainable.
8. Learned counsel appearing on behalf of
opposite party nos. 1, 2, 4 and 5 supported the contention of
opposite party no. 7. Learned counsel further submitted that
when the dispute was brought to the notice of the State
authorities, the matter was enquired into and it was found that
the dispute between the parties is over the wall constructed on
the western side by the petitioner and also for roof constructed
over the road in the northern side by the petitioner. Therefore,
the proceeding under Section 147 of the CrPC was initiated and
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order dated 19.04.2023 was passed. However, in M.J.C. No. 872
of 2023, learned Single Judge directed learned SDM to take
corrective steps in accordance with law and pass a fresh order
after hearing both the parties. In compliance thereof, learned
SDM, Patna Sadar passed the impugned order after hearing the
parties and considering all the facts on record. The said order is
a speaking order. As there is no supportive document for 8 feet x
40 feet land situated in the western boundary of opposite party
no. 7, the learned S.D.M. directed that till the matter is decided
with regard to the right and title of the said land both parties
may use as Rasta (passage). Therefore, the order of the learned
SDM does not suffer from any infirmity.
9. By way of reply, learned counsel for the
petitioner submitted that it is not the petitioner but opposite
party no. 7 who has made misleading statement and false
submission before this Court. When the petitioner appeared suo
motu in C.W.J.C. No. 224 of 2022 on 11.07.2022 then how it
was possible that this Court directed the petitioner to produce
the document as claimed by opposite party no. 7 and the
petitioner failed to show the documents. Learned counsel further
submitted that from the notice issued under Section 147 of the
CrPC it is clear that the dispute was over the construction of
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Chhajja in the northern boundary of the land of opposite party
no. 7 over proposed 4 feet road. But the learned SDM started
enquiry in other parts of land including the raiyati land of this
petitioner. There is no 40 feet x 8 feet passage/rasta on the
western boundary rather it has been mentioned in the sale of
opposite party no. 7 Jhauri Paswan and others. On the other
hand, sale deed specifically stated that on the northern side, both
the opposite party no. 7 and petitioner would leave 2 feet from
their respective share which would be utilized as common
passage and it was mentioned in the sale deed that both sides
may open doors and windows including Chhajja in that 4 feet of
land. For this reason, the opposite party no. 7 has deliberately
not brought his sale deed on record. Learned counsel further
submitted that the opposite party no. 7 has been taking
advantage of interim orders passed by the learned Single Judge
in C.W.J.C. No. 224 of 2022 in which final orders have been
passed on 03.01.2023 and thus, the interim orders merged with
the final order, wherein the parties were directed to file their
show cause before the SDM who was directed to conclude the
proceeding within a period of two months. Accordingly, the
learned SDM disposed of the proceeding. Therefore, passing
fresh orders is contrary to the provisions of law and is also
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against the facts on record.
10. I have given my thoughtful consideration to
the rival submission of the parties. I would like to first take up
the prayer of the petitioner about making a false averment by
opposite party no. 7 in paragraph no. 8 of counter affidavit. The
opposite party no. 7 has submitted as under:-
"That in reply to the statements made in
paragraph no. 5 to 7, 7(a) to 7(e) and 8 of
the Revision petition it is stated that same
part of the encroachment was removed under
the supervision and control of the District
Magistrate, Patna, Circle Officer, Sadar
Patna with the help of S.H.O. Jakkanpur
police station and magistrate also. In this
context it is relevant to mention that while
the Hon'ble court was hearing the matter
repeatedly directed the petitioner to show the
documents related to the encroached land
but he failed to produce any document
before this Hon'ble court. Not only that on
07.07.2023 the District Magistrate, Patna
along with A.D.M. Revenue Circle Officer,
Patna Sadar, Revenue inspector and
Revenue Circle Patna Sadar and the police
team of Jakkanpur police station after
making enquiry and measurement of the
land in question also requested the petitioner
to produce the documents in respect of
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encroached lands but since he had/has no
documents to justify the encroached land of
his own this is why the D.M. Patna directed
the C.O. Patna Sadar for intiating a
proceeding u/s 147 Cr.P.C. for declaring 8
feet wide and 40 feet long passage/rasta as
No man's land/public road and on the report
of C.O. Patna Sadar the court of learned
SDM initiated a proceeding u/s 147 Cr.P.C.
in respect of the land 8 feet wide and 40 feet
long passage/rasta and other encroachment
made by the petitioner."
11. It is apparent from paragraph 8 the opposite
party no. 7 has not mentioned any date when the learned Co-
ordinate Bench hearing the matter directed the petitioner to
show the document related to the land in dispute. Only
contention of the petitioner is that he appeared in the case on
11.07.2022 so there was no occasion for the learned Co-ordinate
Bench to direct him to produce document. I think this
submission is fallacious. If C.W.J.C. No. 224 of 2022 was
finally disposed of on 03.01.2023 and the petitioner appeared on
11.07.2022, nothing has been brought on record the support the
contention of the petitioner that during this period he was never
directed to produce the documents of land in dispute. It is also
pertinent to take note of the fact that the petitioner does not
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claim that he produced the documents for the land in dispute
before the learned District Magistrate and other officials on
07.07.2022 when they went for making enquiry in compliance
of orders of learned Co-ordinate Bench. Therefore, such
submission by the petitioner only reflects the personal view of
the petitioner and is bereft of material fact to infer false
submission on behalf of opposite party no. 7 to initiate any
proceeding against him. Hence, this prayer of the petitioner is
rejected.
12. Challenge to the impugned order dated
25.06.2023, on some other aspects, does not go into the root of
the matter as under the revisional jurisdiction this Court is not
supposed to re-appreciate the facts to take a different view and
any order could be assailed only on the ground of illegality,
irregularity or impropriety manifest on the face of record. For
this reason, irregularity in date of order might be a
typographical error and the order sheet dated 27.06.2023 of the
learned SDM regarding correction of order sheet could be taken
on its face value.
13. So far as the challenge to the impugned order
dated 26.06.2023 is concerned, the same is mainly on three
grounds. Firstly it is on the ground that the learned SDM has no
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power to recall/review its order and secondly also on the ground
that the learned SDM travelled beyond the subject matter as
notice was issued only for construction of Chhajja over
proposed 4 feet passage/rasta. Apart from that the order has also
been assailed on the ground that no satisfaction has been
recorded by the learned SDM that such dispute between the
parties was likely to cause a breach of peace.
14. The question of recall/review the impugned
order by learned SDM, Patna Sadar does not arise in the present
case because the subsequent order dated 26.06.2023 has been
passed under the directions of this Court. If in the complaint
petition bearing M.J.C. No. 872 of 2023, the learned Single
Judge of this Court directed the learned SDM, Patna Sadar to
pass a fresh order after hearing the parties, by implication order
dated 19.04.2023 stood set aside and there being no order, the
learned SDM rightly proceeded in the matter. Moreover, the
subordinate authority is bound to obey the orders of superior
court and whatever may be the contention of the petitioner about
order of the Co-ordinate Bench not being proper or just, the
same could be decided on merit only in appeal against such
order and the learned SDM has no business to consider any
submission made by the petitioner before it in this regard.
Patna High Court CR. REV. No.676 of 2023 dt.11-03-2026
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Therefore, the impugned order could not be faulted on the point
that the learned SDM reviewed/recalled its order.
15. Further, challenge to the impugned order, on
the ground of notice not containing the dispute over 40 feet x 8
feet passage in the western boundary of opposite party no. 7, is
also not sustainable. Notice could not be encyclopedic
containing all the details. For examining the dispute, the
contention of opposite party no. 7 before the State authorities
would be relevant. From the document annexed in the writ
petition especially the site report, it is apparent that the opposite
party no. 7 claimed the boundary wall erected by the petitioner
on his western boundary to be encroachment whereas the
petitioner claimed it to be his raiyati land. Apart from the
allegation of opposite party no. 7 that the petitioner constructed
Chhajja on the proposed 4 feet passage which was claimed to be
his own land by the petitioner. This site report is dated
07.07.2022. Thereafter, notice was issued on 08.07.2022. So, it
could be safely presumed that the dispute over passage on
northern boundary and the western boundary was already before
the learned SDM though notice issued under Section 147 of the
CrPC dated 08.07.2022 did not contain the description of the
complete dispute which is quite understandable as the notices
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are issued containing only brief facts as is general practice.
Therefore, finding fault with the impugned order even on this
ground is not sustainable.
16. Thereafter, the challenge to the impugned
order is also on the ground of non-compliance of other
procedural aspects as well as on the ground that no satisfaction
has been recorded by learned SDM that the dispute between the
parties was likely to cause a breach of peace. Now, Section 147
of the CrPC reads as under:-
"147. Dispute concerning right of
use of land or water.- (1) Whenever an Executive
Magistrate is satisfied from the report of a police
officer or upon other information, that a dispute
likely to cause a breach of the peace exists
regarding any alleged right of user of any land or
water within his local jurisdiction, whether such
right be claimed as an easement or otherwise, he
shall make an order in writing, staling the grounds
of his being so satisfied and requiring the parties
concerned in such dispute to attend his Court in
person or by pleader on a specified date and time
and to put in written statements of their respective
claims.
Explanation.- The expression "land
or water" has the meaning given to it in sub-
section (2) of Section 145.
(2) The Magistrate shall then peruse
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the statements so put in, hear the parties, receive
all such evidence as may be produced by them
respectively, consider the effect of such evidence,
take such further evidence, if any, as he thinks
necessary and, if possible, decide whether such
right exists; and the provisions of section 145 shall,
so far as may be, apply in the case of such inquiry.
(3) If it appears to such Magistrate
that such rights exist, he may make an order
prohibiting any interference with the exercise of
such right, including, in a proper case, an order for
the removal of any obstruction in the exercise of
any such right;
Provided that no such order shall be
made where the right is exercisable at all limes of
the year, unless such right has been exercised
within three months next before the receipt under
Sub-Section (1) of the report of a police officer or
other information leading to the institution of the
inquiry, or where the right is exercisable only at
particular seasons or on particular occasions,
unless the right has been exercised during the last
of such seasons or on the last of such occasions
before such receipt.
(4) When in any proceedings
commenced under Sub-Section (1) of section 145
the Magistrate finds that the dispute is as regards
an alleged right to user of land or water, he may,
after “recording his reasons, continue with the
proceedings as if they had been commenced under
Patna High Court CR. REV. No.676 of 2023 dt.11-03-2026
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Sub-Section (1); and when in any proceedings
commenced under Sub-Section (1) the Magistrate
finds that the dispute should be dealt with under
section 145, he may, after recording his reasons,
continue with the proceedings as if they had been
commenced under Sub-Section(1) of section 145."
Applying the proviso to the facts of the case it is
apparent that the learned SDM failed to record his satisfaction
that the dispute was likely to cause a breach of peace. The
impugned order does not contain the grounds of learned SDM
being satisfied about existence of a dispute likely to cause a
breach of peace and for this reason, the impugned order cannot
be sustained.
17. I further find that the impugned order is also
not sustainable for the reason that the learned SDM has failed to
record the grounds satisfying the proviso to Section 147(3) of
the Code as while recording the satisfaction that there existed a
dispute likely to cause a breach of peace, the learned SDM was
also required to record that right of user has been exercised
within a period of three months before the receipt under sub-
section (1) of the report of a police officer or other information
leading to institution of the enquiry as contemplated.
18. On these two grounds, I am of the considered
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opinion that the impugned order suffers from material
irregularity and therefore, could not be sustained and hence, the
order dated 26.06.2023 passed by learned SDM, Patna Sadar,
Patna in Misc. Case No. 1084(M) of 2022 is set aside.
19. Accordingly, the present revision petition is
allowed.
20. However, it is made clear that the learned
SDM may pass appropriate orders in future if situation so
warrants.
(Arun Kumar Jha, J)
DKS/-
AFR/NAFR AFR
CAV DATE 05.01.2026
Uploading Date 11.03.2026
Transmission Date NA
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