Ramakanta Nayak vs Sudhir Kumar Mohanty And Another Vs

G. Satapathy, J.

Despite order being passed, no report has been obtained by the State, but since this revision is pending from the year 2019, this Court considers it appropriate to dispose of the same.

This Criminal Revision is directed against the impugned order dated 25.10.2019 passed by the learned Sub-Divisional Magistrate, Jajpur in Criminal Misc. Case No.1087 of 2018 directing the petitioner to remove such obstruction within seven days from the date of receipt of this order at his own cost.

By the impugned order, the learned SDM has further observed that in case of failure on the part of the OP(petitioner herein), the Tahasildar, Dasarathpur is directed to remove such obstruction after due field inquiry as per the provision of OPLE Act and remove the obstruction from the public road with the help of local police and realize the cost from the OP (petitioner herein) as arrear of land revenue.

In the course of hearing, Mr. Satya Ranjan Mohapatra, learned counsel for the petitioner submits that although the disputed land belongs to the petitioner, but the learned SDM has promulgated the order U/S.133 of CrPC basing on the report of the Tahasildar in which the disputed land has been claimed to be a Government land and the petitioner is constructing a boundary wall thereon and, therefore, the impugned order is liable to be set-aside.

3.1. On the other hand, Mr. Amulya Ratna Panda, learned counsel for the OPNo.1 submits that since the learned Tahasildar has reported about the nuisance committed by the petitioner affecting the public at large, the present impugned order has been passed which has been stayed by this Court in this revision and thus, the public are suffering for the same, however, the petitioner claims the disputed land to be his own, which cannot be decided in the revisional proceeding and, therefore, the impugned order not suffering from any illegality or perversity, the revision is liable to be dismissed.

After having considered the rival submissions upon perusal of record, it appears to the Court that the real dispute between the parties lies with the ownership of the disputed land, since the petitioner claims it to be his land, whereas the OPNo.1 claims it to be the land of the State, but fact remains that in a revisional proceeding, this Court cannot give an opinion on a fact in issue, which can be decided by the appropriate forum after taking evidence and this Court in exercise of revisional jurisdiction cannot decide as to who is the owner of the disputed land in this case. Moreover, the role and duty of the revisional Court is very limited to examine the legality and propriety of the order impugned in the revision, but in this case, on careful perusal and scrutiny of the impugned order, it appears that the learned SDM on receipt of the report of the Tahasildar, Dasarathpur has passed the impugned order directing removal of construction of the boundary wall after due inquiry as per the provision of the OPLE Act.

Section 133(1)(a) of CrPC provides that whenever a District Magistrate or Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance to remove such obstruction or nuisance. Further, the explanation to Sec. 133 of CrPC states that public place includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes. In this case, the report of the Tahasildar reveals that the disputed land to be a Sarbasadharan Rasta (common road) along with the land of the petitioner and, thereby, the petitioner unless gets it clarified that the land belongs to him, the order passed by the learned SDM directing removal of the construction appears to be not suffering from any illegality or perversity.

In the result, this Criminal Revision being unmerited stands dismissed on contest, but in the circumstance, there is no order as to costs. The interim order passed earlier stands vacated, however, liberty is granted to the petitioner to establish his ownership over the land by taking proper recourse to law within a reasonable time.

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