Principal Karanjia College vs State of Odisha and Others

J.P.Das, J.

This is an application under Section 482 of the Code of Criminal Procedure with a prayer to quash the judgment dated 24.01.2014 passed by learned

Additional Sessions Judge, Baripada in Criminal Revision No.28/17 of 2013-12 confirming the order dated 12.06.2012 passed by the learned Executive

Magistrate, Panchpir, Karanjia in C.M.C. No.204 of 2009 under Section 133 of the Code of Criminal Procedure directing to remove the blockades

constructed by the present petitioner on the road used by the public. The present petitioner is the Principal of Karanjia College within the premises of

which, the public road allegedly existed connecting to P.W.D Roads. The opposite parties are the general public who initiated the proceeding first,

filing a report before the concerned police station alleging that there was a connecting link road through the college premises on its eastern side up to

Karanjia P.W.D. road for use of general public and college students as well. In the year 1985 the N.A.C of Karanjia with due consent of the college

authority had constructed a morrum road and maintained the same for use of the general public. The consent of the college authority was according to

a resolution passed by its governing body dated 08.04.1985. They alleged that till February 2009 there was no disturbance in using the road by the

general public, but on 08.02.2009 the Principal of the College closed the road constructing a wall and fixed an iron gate causing unlawful obstruction

on the road measuring 270 ft. in length 22 ft. in breadth. Hence, they prayed for necessary action. Since the Police was unable to take action, they

moved before the learned Sub-divisional Magistrate, Panchpir, Karanjia for initiation of a proceeding under Section 133 Cr.P.C. which was

subsequently transferred to the learned Executive Magistrate, Panchpir, Karanjia for disposal according to law.

The learned Executive Magistrate issued notice to show-cause and after appearance, the evidence was adduced on behalf of both the sides.

Considering the oral as well as documentary evidence placed before the court, the learned Executive Magistrate came to a conclusion that there

existed a public road which has been unauthorisedly obstructed by the Principal of the college thereby causing public nuisance and accordingly by

order dated 12.06.2012, directed that the illegal construction of wall/iron gate over plot no.1972 appertaining to Khata No.419 of village Ankura

measuring an area 270 ft. in length and 22 ft. in breadth approximately be removed forthwith. He further directed that unless such removal is made by

the Principal of the college within a month of passing of the order, the N.A.C. Authority would remove the same.

The Principal of Karanjia College, the present petitioner filed a Criminal Revision before the learned Additional Sessions Judge, Baripada in

Criminal Revision No.28/17 of 2013-12 assailing the said order of the learned Executive Magistrate. The learned Additional Sessions Judge, Baripada

considered the submissions made on behalf of both the parties and came to the conclusion that there was absolutely no illegality or infirmity in the

order of the learned Executive Magistrate who has rightly directed for removal of the obstruction on the passage used by the general public and

accordingly dismissed the revision.

It was submitted by learned Senior Counsel appearing for the petitioner that both the courts below have failed to appreciate the position and the

specific submissions made on behalf of the college that the road was earlier used by the general public for convenience, but subsequently with

expansion of the college campus some ladies hostel has been constructed and permitting the general public to pass through the campus of the college

would affect safety and security of hostel inmates besides disturbing the college affairs. It was also submitted that the general public has alternative

passage and connecting roads and hence, closure of the passage through the college campus would no way cause inconvenience. It was also

submitted that closure of the passage for the interest of the college and its students can never be said a public nuisance so as to be directed for

removal in exercise of the powers under Section 133 of the Cr.P.C. by an Executive Court. It was also submitted that as per settled position of law,

the proceeding under Section 133, Cr.P.C. is more in the nature of civil proceeding and the learned Executive Magistrate could not have held that the

general public has right of passage over the land admittedly belonging to the college authorities. It was also submitted that a civil proceeding has been

initiated and the matter is sub-judice.

It was submitted by the learned counsel for the opposite parties that the present application has become infructuous since after final decision of the

learned revisional court, the eviction process of illegal construction of the college boundary and gate has already been completed since 12.05.2016. It

was further submitted that the public passage existed since 1985 with due approval of the college authorities and the said public road was regularly

maintained by the N.A.C Authorities. But, all of a sudden, it was closed by the College Authorities in 2009 causing serious inconvenience to the

general public. Hence, it was submitted that the impugned orders have been rightly passed. It was further submitted that the present petitioner has

filed C.S. No. 132 of 2016 which is pending before the learned Senior Civil Judge, Karanjia where the rights and interest of both the parties will be

finally decided. It was also submitted and placed that in an interim application moved by the present petitioner in the said suit vide I.A No.20 of 2016,

the learned Civil Court has refused to grant temporary injunction prayed for by the petitioner plaintiff by order dated 25.11.2017. Thus, it was

submitted that since the matter is sub-judice before the appropriate civil court, it would be inappropriate to consider modification of the order passed

and confirmed under Section 133 of the Cr.P.C., more so in the circumstances that the alleged obstruction has already been removed and a competent

civil court has refused to grant any temporary injunction.

The factual positions are not disputed on behalf of the petitioner. In view of the admitted fact that the matter is pending before a competent civil

court to finally decide the rights and interest of the parties, I am of the considered view that to express any opinion in that regard in the present forum

would be uncalled for. The contentions as raised on behalf of both the sides as to the right of passage, convenience of the college students and

inconvenience caused to the public apart from the legal aspects will be taken care of by the competent civil court in seisin over the matter.

Accordingly, without expressing any opinion on the merits of the contentions made on behalf of the parties this application is disposed of with the

observation that the parties will be bound by final decision of the competent civil court. The CRLMC is disposed of accordingly.