Patna High Court sets aside illegal order of Sub- Divisional Magistrate, Ballia, Begusarai

Setting aside the order of Sub- Divisional Magistrate, Ballia, Begusarai, Patna High Court observed that "The impugned order is not only bad in law, but perverse and passed without following the procedure and power of the Executive Magistrate under Chapter-X of the Cr.P.C." Rameshwar Prasad Singh, S/o Late Nathuni Singh, the petitioner from Manserpur, Ballia, Begusarai, had challenged an order dated June 8, 2017 passed by the Sub-Divisional Magistrate, Ballia, Begusarai, in Dispute Case No. 01 of 2016-17, registered on the basis of a plain official letter, written by Sadanand Singh, respondent no. 7 to the Executive Magistrate. The case was filed on July 18, 2018.

It has been noted by the Court that by passing the impugned order on June 8, 2017, the Sub-divisional Magistrate, Ballia, Begusarai, passed an order restraining the opposite parties from making any obstruction to the petitioner (respondent no. 7 in High Court) from carrying on repairing as well as renovation work of his hut, situated on khesra no.-519, over a land measuring about 2 dhurs.

In its order, the Court recorded that "no proceeding under Section 144 of the Cr.P.C. or Section 145 of the Cr.P.C. was initiated by the Sub-divisional Magistrate while passing the impugned order in the nature of injunction. By such order, it is alleged on behalf of the petitioner that the petitioner is prevented from his enjoyment over the subject land." Section 144 (7) states that where an application under Section 144 (5) or 144 (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order; and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing.

The Advocate for the petitioner submitted that prior to making such application before the Sub-divisional Magistrate, the respondent no. 7 himself filed a suit for declaration of his title and other consequential relief before the 1st court of the Civil Judge (Senior Division) at Begusarai, which was registered as Title Suit No. 5 of 2016, dated January 2, 2016. In this suit the respondent no. 7 being the plaintiff did not file any application for temporary injunction restraining the defendants from making any obstruction against the repairing work of his hut. The Court recorded that "On the contrary, suppressing the this fact, the respondent no. 7 obtained a most illegal order from the Sub-divisional Magistrate, Ballia, Begusarai." The judgement was authored by Justice Bibek Chaudhuri.