SURENDRA ROUT Vs. EXECUTIVE MAGISTRATE, CUTTACK

JUDGEMENT

(1.) IN this revision the petitioners assailed the order dated 20.8.2009 passed by the learned Executive Magistrate, Cuttack in a proceeding u/s. 144, Cr.P.C. bearing Crl. Misc. Case No.2 of 2009, holding the second party to be the rightful owner of the case land and restraining the first party members from entering into the schedule land.

(2.) THE facts of the case can be succinctly described as follows: The schedule land has been recorded in the name of 'deity Banabihari Thakur Bije Nija Gaan. The petitioners claim that they are ancestors have established the deity and worship it over the case land which has been recorded in favour of the deity in the care of Harapriya Jema Dei, mouza Saleibedipur. After the death of said Harapriya Jema Dei, the villagers as well as the petitioners have been managing the rituals of the said deity as per the Hindu rites and customs. The petitioners further claim that they have been cultivating the lands of the deity and managing the affairs. The petitioners claim that O.P. No.2 cleverly got Ac.6.02 decimals recorded in his name styled as Marfatdar, which is totally fabricated, erroneous and manipulative. It is also submitted that one Ramesh Chandra Mohapatra had managed to record the R.O.R. in his own name for an area of Ac.6.02 decimals in the year 1984 -85 which became a subject -matter in O.A. No.5 of 1986, a proceeding u/s.41 of Orissa Hindu Religious Endowment Act,1951. The Addl.Assistant Endowment Commissioner came to the conclusion that the said deity is a public deity. Regarding the nature of the suit land he directed the parties to appear before the civil Court for determining the right, title and interest. The said Ramesh Chandra Mohapatra instead of approaching the civil Court has got his name recorded in the consolidation proceeding. Thereafter it is alleged that Ramesh Chandra Mohapatra sold the land to different persons. The O.P. Nos. 2 to 8 have purchased the land from Ramesh Chandra Mohapatra and kept the same secret but in the month of 2009 they started construction over the land. So the petitioners initiated proceeding under Section 144, CrPC over the disputed land to restrain the opposite party.

(3.) THE first question is if the revision is maintainable after efflux of sixty days. It came for consideration before this Court in several cases. In Taturam Sahu v. The State of Orissa, AIR 1953 Ori. 96 : Niranjan Sahu and others v. Keonjhar Municipality represented by its Chairman, 37(1971) CLT 857; this Court held that even after the expiry of the order due to efflux of time, in a fit case, the revisional Court can interfere with the order passed by the Executive Magistrate under Section 144 of the Code. In Kshirod Ch. Sahu v. Executive Magistrate, Sadar, Cuttack and others, (1996) OCR 422, similar view is taken. The law is well settled that even after the expiry of the order due to efflux of time, in a fit case, the revisional Court can interfere with the order passed by the Executive Magistrate under Section 144 of the Code if the Executive Magistrate acted illegally and in excess of its jurisdiction. Learned counsel for the petitioners contends that since the order passed by the learned Executive Magistrate is in excess of its jurisdiction, such revision application is maintainable.