ELVIRA DIAS Vs. EXECUTIVE MAGISTRATE III

JUDGEMENT

(1.) Heard Shri Kamat, the learned Counsel on behalf of the petitioners who are the opponents, and respondent no. 3 in person, who is the first informant in proceedings under Section 133 of the Code (Code of Criminal Procedure, 1973) , before the Executive Magistrate at Bardez, Goa. As stated by Shri Kamat on behalf of the petitioners, the challenge in this petition is restricted to Order dated 25. 04. 2006 of the learned Executive Magistrate.

(2.) It appears that there was a property admeasuring 900 square metres surveyed under no. 363/18 belonging to Mr. Peter @ Willy and Sofia Lobo. The father of the said informant respondent no. 3, by Deed dated 07. 10. 1983, purchased the southern portion of the said property admeasuring about 525 square metres and it is her case that in the year 1986 or thereabout, her father fenced the said property. The petitioners Pedro and Elvira Dias by Deed dated 14. 07. 1998, purchased the northern portion of the said property admeasuring about 236. 4 square metres and the balance in between the said two portions was gifted by the said sellers admeasuring 138. 6 metres in favour of the Village Panchayat. On behalf of the parties, it is stated that there is a tarred road in existence across the said property and in between the portions purchased by petitioners and respondent no. 3 and the said road is in existence from the year 19941995. The informant respondent no. 3, filed a complaint to the Calangute Police Station alleging that the petitioners had put rubble stones and laid concrete poles on the said road reducing the area to nearly half of the original area of three metres width which was existing for years and thereupon a report was submitted by the Police Sub Inspector of Calangute Police Station. On receipt of the said report dated 20. 06. 2005, along with the written complaint of respondent no. 3, the Executive Magistrate was pleased to forward the same for inquiry to the Talathi, Calangute, and the said Talathi vide his report dated 07. 07. 2005, reported to the Executive Magistrate that he had inspected the site and had found that the petitioners had erected the cement poles and had dumped mud at the side of the public road outside their compound wall reducing the size of the tar road and causing great hardship and inconvenience to the public. The said Talathi also stated that the petitioner Pedro Dias had stated that the respondent no. 3 and their neighbours had not maintained the access which was kept by the original landlord and had erected their compound wall on the road without maintaining the set backs.

(3.) Thereafter, a conditional Order came to be made on 19. 07. 2005, by the learned Executive Magistrate calling upon the petitioners to remove the concrete poles erected on the public road and the mud within a period of seven days or to appear before his Court and show cause as to why the said conditional Order should not be made absolute. It appears that the grievance of respondent no. 3 is shared by one B. L. Franco and 15 others who have also submitted an application to the Executive Magistrate after the said conditional Order was made. In reply to the show cause notice, the petitioners, inter alia, stated that the proceedings were not maintainable and the learned Executive Magistrate had no jurisdiction and the issue was purely a civil dispute and the said informant ought to have approached the Civil Court and, therefore, there was no reason to pass the said conditional Order. The petitioners also stated that they had not done any encroachment on the public road and further stated that the said cement poles were existing outside the road portion and in the private property of the petitioners. The petitioners also stated that it is the informant who had encroached on the road by constructing a laterite stone compound wall on the road and because of that, the road area was reduced and, therefore, it is necessary to verify the Sale Deed and remove the encroachment made by her on the road. The petitioners also stated that a Surveyor could be appointed to verify the exact road area as per the Sale Deed of the informant and the petitioners and which would show the falsity of the informant's complaint. The petitioners also stated that the proceedings were initiated at the behest of the informant with the connivance of the police. It appears that on 27. 09. 2005, the learned Executive Magistrate directed a Surveyor to be appointed to verify the boundaries of both the plots surveyed under no. 363/18 of Village Calangute and to find out the existence of three metres wide road and submit a report. Accordingly, a site inspection was fixed on 24. 10. 2005 and a report was submitted dated 07. 11. 2005. In the report dated 07. 11. 2005, the Surveyor intimated that the existing tar road was not shown in the new Survey plan and proceeded to survey the same and show it on the plan. However, he stated that in order to detect the encroachment on the road, the Executive Magistrate will have to refer to the plan of the Acquiring Department as it was difficult to detect whether the encroachment had been carried out on the land acquired or the land was donated by any private party, etc. That report was filed before the Executive Magistrate on 29. 11. 2005. It appears that on 13. 12. 2005, the learned APP, who was assisting in the inquiry being conducted by the learned Executive Magistrate, filed an application for fresh survey, and on 28. 02. 2006, another Order came to be passed to conduct fresh survey as per direction given on 27. 09. 2005. That could not be done on 28. 03. 2006, as it was noted that the said Surveyor who had earlier conducted the survey, was transferred. Subsequently, it appears that the Surveyor wanted the original copy of the plan of the property purchased by the petitioners without which he was unable to identify the plot and the petitioners were unwilling to produce the same and the petitioners were directed to give the original plan which is part of the Sale Deed, through which, they had purchased the suit property. The Surveyor was directed to identify the boundaries of survey no. 363/18 and the plot of the petitioners and report to him and, accordingly, the matter was adjourned to 19. 05. 2006. It is this Order dated 25. 04. 2006, which is challenged in this petition as being contrary to the Order dated 27. 09. 2005.