Surendra Rout and ors. Vs. Executive Magistrate - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - after the death of said harapriya jema dei, the villagers as well as the petitioners have been managing the rituals of the said deity as per the hindu rites and customs. the law is well settled that even after the expiry of the order due to efflux of time, in a fit case, the revisional court can interfere with the order passed by the executive magistrate under section 144 of the code if the executive magistrate acted illegally and in excess of its jurisdiction. the apex court very clearly laid down that question of title cannot be decided at all in a proceeding under section 144 of the code.s.k. mishra, j.1. in this revision the petitioners assailed the order dated 20.8.2009 passed by the learned executive magistrate, cuttack in a proceeding under section 144, cr.p.c. bearing crl. misc. case no. 2 of 2009, holding the second party to be the rightful owner of the case land and restraining the first party members from entering into the schedule land.2. the facts of the case can be succinctly described as follows:the schedule land has been recorded in the name of 'deity banabihari thakur' bije nija gaan. the petitioners claim that they are ancestors have established the deity and worship it over the case land which has been recorded in favour of the deity in the care of harapriya jema dei, mouza saleibedipur. after the death of said harapriya jema dei, the villagers as well as the petitioners have been managing the rituals of the said deity as per the hindu rites and customs. the petitioners further claim that they have been cultivating the lands of the deity and managing the affairs. the petitioners claim that o.p. no. 2 cleverly got ac.6.02 decimals recorded in his name styled as marfatdar, which is totally fabricated, erroneous and manipulative. it is also submitted that one ramesh chandra mohapatra had managed to record the r.o.r. in his own name for an area of ac.6.02 decimals in the year 1984-85 which became a subject-matter in o.a. no. 5 of 1986, a proceeding under section 41 of orissa hindu religious endowment act, 1951. the addl. assistant endowment commissioner came to the conclusion that the said deity is a public deity. regarding the nature of the suit land he directed the parties to appear before the civil court for determining the right, title and interest. the said ramesh chandra mohapatra instead of approaching the civil court has got his name recorded in the consolidation proceeding. thereafter it is alleged that ramesh chandra mohapatra sold the land to different persons. the o.p. nos. 2 to 8 have purchased the land from ramesh chandra mohapatra and kept the same secret but in the month of 2009 they started construction over the land. so the petitioners initiated proceeding under section 144, crpc over the disputed land to restrain the opposite party3. the o.p. contend that the order of the addl. assistant endowment commissioner was challenged in appeal. the appellate court remanded the matter for further trial. thereafter o.a. no. 5/86 was dismissed for default on 26.6.1996. the opposite party, therefore, pray that there is no merit in the revision. therefore, the same should be dismissed.4. the first question is if the revision is maintainable after efflux of sixty days. it came for consideration before this court in several cases. in taturam sahu v. the state of orissa : air 1953 ori. 96 niranjan sahu and ors. v. keonjhar municipality represented by its chairman 37(1971) clt857; this court held that even after the expiry of the order due to efflux of time, in a fit case, the revisional court can interfere with the order passed by the executive magistrate under section 144 of the code. in kshirod ch. sahu v. executive magistrate sadar cuttack and ors. (1996) ocr 422, similar view is taken. the law is well settled that even after the expiry of the order due to efflux of time, in a fit case, the revisional court can interfere with the order passed by the executive magistrate under section 144 of the code if the executive magistrate acted illegally and in excess of its jurisdiction. learned counsel for the petitioners contends that since the order passed by the learned executive magistrate is in excess of its jurisdiction, such revision application is maintainable.5. while considering the contention raised at the bar regarding the merit of the case, it is apt to quote the operative portion of the order passed by the learned executive magistrate which reads as under:xx xx the second party are rightful owner of the case land. as such the first party members are restrained from entering into the schedule land. iic olatpur p.s. is directed to keep close watch over the situation and take necessary steps as per law.6. section 144, crpc provides for power to issue order in urgent cases of nuisance or apprehended danger. in cases where, in the opinion of a district magistrate, there is sufficient ground for proceeding under this section and immediate prevention of speedy remedy is desirable, such magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management. the apex court in md. gulam abbas v. md. ibrahim : air 1978 sc 422 held that the orders under this provision are obviously intended to prevent dangers to life, health, safety or peace and tranquillity of members of the public. they are only temporary orders which cannot last beyond two months from the making thereof as is clear from section 144(6) of the code. the apex court very clearly laid down that question of title cannot be decided at all in a proceeding under section 144 of the code. but previous judgments on them may have a bearing on the question whether, and if so, what order should be passed under section 144 of the code.7. in this case when learned executive magistrate, cuttack observed that the second party are the rightful owner of the case land, in effect he decided the title. the executive magistrate further restrained the first party members from entering into the schedule land and made the order absolute and permanent in nature. it is patently illegal and improper and the same should not have been passed by the learned magistrate in exercise of his jurisdiction under section 144 of the code. learned counsel for the petitioners very emphatically submits that unless such order is specifically quashed, it would create uncalled for difficulties for the petitioners and may cause prejudice or give rise to unwarranted interference against them.8. the contention of the learned counsel for the petitioners appears very much acceptable and, therefore, this court while allowing revision application, quash the impugned order dated 20.8.2009 passed by the learned executive magistrate, cuttack in crl. misc. case no. 2 of 2009.9. the crl. revision is disposed of accordingly allowed.