Diba Bhoi vs Kapila Harijan and Others

P.K. Mohanti, J.—This criminal revision is directed against an order u/s 145. Code of Criminal Procedure passed by Shri M. Bhoi, Magistrate, first class. Bhawanipatna.

The land in dispute is a Government land recorded as Jalchar. It was transferred to the Grama Panchayat in the year 1965. The Petitioner claimed to be in possession of the land since the year 1968. According to him, an encroachment case has been started against him under the provisions of the Orissa Prevention of Land Encroachment Act for unauthorised occupation and penalty has been realised from him. A notice to show cause u/s 6(1) of the Act has also been served on him. Opp. parties also claimed to be in possession of the land. Both parties filed written statements, affidavits and documents in support of their respective contentions. The learned Magistrate without deciding the question of possession directed both parties not to enter upon the land till the decision of the encroachment proceeding. Without deciding the question of possession he confiscated the crops raised on the land and referred the case to the Tahasildar for disposal according to law.

The order of the learned Magistrate is manifestly wrong. Even an encroacher''s possession has to be maintained in a proceeding u/s 145, Criminal Procedure Code. The object of the proceeding is to prevent a breach of peace. The section only gives power to the Magistrate to decide the question of possession. The learned Magistrate acted in illegal exercise of his jurisdiction in remitting the case to the Tahasildar. The impugned order cannot, therefore, be sustained in law.

The criminal revision is allowed and the impugned order is set aside. The case is remanded to the learned Magistrate for a fresh disposal according to law if there is still apprehension of breach of peace.