JUDGMENT
P.K. Mohanty, J.
1. The petitioner assails the order of the Sub-divisional Magistrate, Jagatsinghpur in Criminal Misc. Case No. 151 of 1998 passed under Section 147 of the Code of Criminal Procedure.
2. The learned counsel for the petitioner submits that earlier, the very same Sub-Divisional Magistrate had passed an order under Section 133, Cr.P.C. restraining the petitioner from obstructing user by any other person of the disputed land which is recorded under Sthitiban status in the name of the petitioner and directing him to establish his right in the Civil Court. The said order was challenged in Criminal Revision No. 9 of 1998 before the learned Additional Sessions Judge and by order dated 16.5.1998, the order was set aside, holding that in a proceeding under Section 133, Cr.P.C., a Magistrate is not authorised to declare easementary right. But inspite of the revisional order the learned Sub-Divisional Magistrate has now passed the impugned order purportedly in the garb of an order under. Section 147, Cr.P.C. which is illegal and liable to be quashed.
3. The learned counsel for the Opposite parties however, contends that since the petitioner has been asked to appear before the learned Sub-Divisional Magistrate and show cause as to why the order shall not be made absolute without filing a show cause, the petitioner is not legally entitled to approach this Court in the present petition under Section 482, Cr.P.C.
4. Having heard the learned counsel for the parties and on perusal of the impugned order, it appears that the petitioner has been called upon to show cause as to why the interim order shall.
not be made absolute. But a minute reference to the order indicates that the learned Sub-Divisional Magistrate has practically passed a final order in the manner, he did in the earlier occasion purportedly under Section 133, Cr.P.C., which has been set aside by the lower court as impermissible.
5. In order to properly appreciate the contentions raised, a reference has to be made to the provision of Section 147, Cr.P.C., which is quoted hereunder :
“747. Dispute concerning right of use of land or water : (1) Whenever an Executive Magistrate is satisfied, from the report of a police officer or upon other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction, whether such right be claimed as an easement or otherwise, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader on a specified date and time and to put in written statements of their respective claims.
Explanation : The expression ‘land or water’ has the meaning given to it in Sub-section (2) of Section 14.
(2) The Magistrate shall then peruse the statements so put in, hear the parties, receive all such evidence, as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible decide whether such right exists; and the provisions of Section 145 shall, as far as may be, apply in the case of such inquiry.
(3) If it appears to such Magistrate that such rights exist, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right :
Provided that no such order shall be made where the right is exercisable at all times, of the year, unless such right has been exercised within three months next before the receipt under Sub-section (1) of the report of a police officer or other information leading to the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of
such seasons or on the last of such occasions before such receipt.
(4) When in any proceeding commenced under Sub-section (1) of Section 145 the Magistrate finds that the dispute is as regards an alleged right of user of land or water, he may, after recording his reasons, continue with the proceedings as if they had been commenced under Sub-section (1) :
and when in any proceedings commenced under Sub-section (1) the Magistrate finds that the dispute should be dealt with under Section 145, he may, after recording his reasons, continue with the proceedings as if they had been commenced under Sub-section (1) of Section 145.”
This Section 147, Cr.P.C. has the same object as that of Section 145, Cr.P.C. A proceeding can be invoked under Section 145, Cr.P.C. when a dispute concerning any land exists and that is likely to cause breach of peace. Proceeding under Section 147, Cr.P.C. can be initiated when a dispute exists with regard to any alleged right of user of any land which is likely to cause breach of peace. The powers conferred on a Magistrate in this Section is intended to preserve public peace and not to determine the right of parties like a Civil Court.
‘Right of user’ as contemplated in the Section means any dispute relating to a recurring right in the use of the land or water whether the right is claimed by a person in possession or not and such right is not limited to right of easement proper. Thus, the Section also applies to a right of way whether claimed by the public or by a Section of public. But the mandatory requirement for an order under Sub-section (1) of Section 147, Cr.P.C. is that the Magistrate must be satisfied from the report of a Police Officer or upon other information that a dispute exists with regard to the alleged right of user of a land and that dispute is likely to cause a breach of peace. The Magistrate also is required to record in writing the grounds of his being so satisfied and then may require such parties in the dispute calling upon them to put in their respective claims in form of a written statement. Under Sub-section (3) thereof the Magistrate is authorised to make an order prohibiting any interference with exercise of such right or in an appropriate case for removal of any obstruction in exercise of such right, only when the Magistrate is satisfied that such an alleged right exists, but that is only in the opinion of the Magistrate and there can be no determination of any such right which is within the domain of a Civil Court.
6. A perusal of the impugned order of the learned Sub-Divisional Magistrate clearly indicates that though he has recorded his satisfaction with regard to the dispute concerning the right of the user of the road mentioned in the schedule, the satisfaction of the learned Magistrate as to the existence of an apprehension of likelihood of existence of a breach of peace due to such dispute regarding user is conspicuously absent in the order and, therefore, the learned Magistrate could not have passed the order directing the second party therein and the petitioner herein not to take of retain possession of such land to the exclusion of enjoyment of the right of user in favour of first party members, as he did in the impugned interim order till the petitioner was to put his written statement of claim and claims of parties were considered by him.
7. In that view of the matter, the interim prohibitory order against the petitioner cannot be sustained in law and has to be vacated. But however, since the petitioner is directed to show cause to why an order in the manner suggested should not be passed, the petitioner shall put in and file his written statement of claim upon which, the learned Sub-Divisional Magistrate on consideration and upon hearing the parties shall be free to pass any order in accordance with law. Since the date for filing written statement is over, the petitioner should be allowed to file his written statement.
8. Accordingly, as agreed to by the learned counsel, both the parties shall appear through their learned counsel or in person before the learned Sub-Divisional Magistrate, Jagatsinghpur on 24th September, 2002 and file their respective written statement of claim, when, the learned Magistrate shall fix a short date for hearing of the matter and conclude the proceeding expeditiously. However, it is made clear, if the parties do not appear on the date fixed and or do not file their written statement of claim on that date, the learned Magistrate is free to proceed with the matter and pass appropriate order in accordance with law.
The petition is disposed of in the aforesaid terms.