RAGHUNATH PRASAD GUPTA Vs. PRAKASH PANDIT

JUDGEMENT

(1.) This is an application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short 'the Code'). It is directed against the order dated 6.7.1995 passed by Shri G.N.Choudhary, Executive Magistrate, Danapur in case No. 903(M)/93 directing the petitioners to remove the alleged obstruction by breaking open the wall of his house in a proceeding under Section 147 of the Code.

(2.) It appears that on 21.10.1993 the opposite party had filed a petition before the Sub-Divisional Officer, Danapur under Section 147 of the Code contending therein that the petitioners wanted to obstruct the passage of opposite party towards south and east to his house by constructing their house and Ota encroaching 3 feet wide east to west and 24 feet long north to south on the public lane. By making this encroachment the passage of the opposite party as also the movement of vehicles were obstructed on this lane. Originally this lane was 7 feet wide but on account of this encroachment its width narrowed down to 4 feet. The learned Sub-Divisional Magistrate called for a report from the police and also asked the petitioners to show-cause. However, without waiting for the police report he appointed an Advocate Commissioner who held local inspection and has submitted his report. It has been alleged that the petitioners are retired personnel from Railways and are litigants. There is a Yucca well existing since long near this lane. The opposite party illegally constructed a gate surrounding this well bringing its within its compass. On an application filed on behalf of the petitioners the police visited the place and asked the opposite party not to fix up a gate near the well.

(3.) Under the orders of the learned Magistrate the Advocate Commissioner held a local inspection on 6.3.1994 in presence of parties and prepared a scatch map of the said lane. He found that width of this lane varried from 3 feet 9 inches to 4 feet 8 inches. He also found that the opposite party had opened their door and two windows towards this lane and had also protected their roof on it. He also of found that the present petitioners had not encroached upon even one feet of the lane and had constructed their north wall on the place where the old wall existed. The opposite party had filed an objection to the Commissioner's report and the petitioners had filed a rejoinder to this objection. The learned Magistrate had not passed any order on the objection or its rejoinder filed by the parties. He also did not wait for the police report nor send any reminder for the same. Ultimately he heard the matter and without any basis passed the impugned order which is against the provisions of law.