INDRAJEET NAIK Vs. BRAHMAPUTRA GOPINATH MAHAPRABHU

JUDGEMENT

(1.) The petitioner has challenged the order dated 31.10.2006 passed by the Sub-Divisional Magistrate, Bargarh in Criminal Misc. Case No. 361 of 2006 restraining the opp. parties therein to enter upon the disputed land.

(2.) The present petitioner was opp. party No. 4 and the opp. parties were petitioners before the Sub-Divisional Magistrate, Bargarh in the aforesaid Criminal Misc. Case. The case of the petitioners therein is that the deity Sri Sri Brahmapura Gopinath Mahaprabhu, Bije at Jhaduapada, Sambalpur is the owner and in possession of the 'A' schedule land. The said land was recorded in the name of the deity in the final Consolidation khata No. 35 of mouza-Tupapara under Attabira Tahasil in the district of Bargarh. Affairs of the said deity is being managed by a Trust duly formed by the Assistant Commissioner of Endowments, Sambalpur of which Sri Chittaranjan Panda is the Managing Trustee. Petitioner No. 2 was cultivating the 'A' schedule land on "KARA" basis. Like previous years in this year also he cultivated the schedule land and raised paddy crops. On 30.10.2006 when he went to the said land, the opp. parties numbering 18 by forming an unlawful assembly and being armed with Lathi, Tangia etc. came over the disputed land and threatened the petitioner to kill, if he would not go away from the said land. So apprehending breach of peace, endangering his life and property he filed a petition under Section 144 Cr. P. C. before the Sub-Divisional Magistrate, Bargarh supported by an affidavit being sworn by Sri Chittaranjan Panda, Managing Trustee to restrain the opp. parties from going upon the disputed land or to create any disturbance in the peaceful possession of the petitioners therein. On perusal of the petition supported by affidavit and the documents filed by the petitioners the Sub-Divisional Magistrate was satisfied that the dispute was likely to cause breach of piece for the illegal overacts of the opp. parties. He initiated the proceeding under Section 144 Cr.P.C. and on 31.10.2006 passed an ex parte order due to the emergent situation restraining the opp.parties to enter upon the disputed land and gave them liberty to file their show cause if any on 15.11.2006 for alteration or recession of the said order. He further directed the O.I.C, Attabira Police Station to promulgate the said order immediately and submit a report regarding law and order situation in the locality. Being aggrieved by this order, Opp. party No. 4 (hereinafter referred to as 'petitioner') has preferred this Revision.

(3.) Learned counsel for the petitioner submits that the petitioner had been possessing the disputed land since more than 30 years without disturbance from any quarter. The learned Sub-Divisional Magistrate without issuing notice to the petitioner or any of the opp. parties before him, passed the restraint order illegally. Per contra learned counsel appearing for the present opp. parties submits that it was the specific order of the Sub-Divisional Magistrate that the petitioners were at liberty to file show cause on 15.11.2006 for alteration or recession of the order passed by him. Without filing show cause the present petitioner straightway approached this Court which is per se illegal. In support of his submission he relied on the decision in Krushna Patra and another v, Kami Bewa and another.