WRIT PETITION 4947/2013 on 23 November 2001

WP(C) 4947/2013BEFOREHON’BLE MR JUSTICE UJJAL BHUYANHeard Mr P D Nair, learned counsel for the review petitioner and Mr S Borthakur, learned counsel for the respondent No. 7/writ petitioner.

2. Respondent No. 7 had filed the related WP(C) No. 4947 of 2013, seeking adirection to the respondents for execution of order dated 23.11.2001, passed bythe Sub-Divisional Magistrate, Nagaon, as well as order dated 02.05.2003, passed by the Additional District Magistrate, Nagaon, in MR Case No. 210 of 2001. 3.Both review petitioner and respondent No. 7 are neighbours and the dispute relates to construction of a boundary wall by the review petitioner which is alleged to have obstructed the public road leading to the house of respondent No. 7/ writ petitioner.

4. Writ petition was disposed of at the motion stage on 11.12.2013, by passing the following order:

By way of this petition under Article 226 of the Constitution of India,petitioner seeks a direction to the respondents for execution of order dated 23.11.2001 passed by the Sub Divisional Magistrate, Nagaon as well as order dated2.5.2003 passed by the Additional District Magistrate, Nagaon in M.R. Case No.210/2001.

Case of the petitioner is that respondent No.7 had constructed boundary wall obstructing the road leading to the house of the petitioner. In this connection, petitioner filed an application under Section 133 of the Code of Criminal Procedure, 1973 before the Additional District Magistrate. Order was passed on 23.11.2001 for removal of obstruction. As there was no compliance, further application was filed before the Deputy Commissioner, Nagaon and after hearing both the sides, Additional District Magistrate , Nagaon passed order dated 2.5.2003 directingrespondent No. 7 to re-construct the disputed wall in presence of the officials of Nagaon Municipal Board and Nagaon Development Authority. Respondent No.7 had preferred revision petition before the learned Sessions Judge, which was dismissed. Thereafter, civil suit was filed which was also dismissed by the first civil Court on 21.6.2010. Appeal filed before the first appellate Court was also dismissed on 17.9.2012.

According to the petitioner, because of the aforesaid litigations, execution ofthe orders dated 23.11.2001 and 2.5.2003 got delayed. He, therefore, filed a petition dated 18.3.2013 before the Deputy Commissioner, Nagaon for execution of the above orders. As no steps were taken, present petition has been filed. This Court by order dated 2.9.2013 directed the learned State Counsel to obtain instruction in the matter, particularly relating to the present status of M.R. Case No.210/2001 in which the first order dated 23.11.2001 was passed. On subsequent dates, it was submitted by learned State Counsel that records of M.R. Case No.210/2001 could not be traced out.

To-day Mr. Laskar, learned State Counsel submits on the basis of written instructions that Nagaon Development Authority had directed the respondent No.7 to demolish the corner of his wall obstructing the passage. Steps are being taken for execution of the orders. An enquiry has also been ordered regarding disappearance of case record of M.R. Case No.210/2001.Learned counsel for the petitioner on the other hand submits that if necessary, petitioner will submit all the relevant documents so that the office of the Deputy Commissioner, Nagaon can re-construct the record of M.R.Case No.210/2001

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Having regard to the sequence of events as noticed above, Court is of the view that Deputy Commissioner, Nagaon should issue notice to respondent No.7 giving him reasonable time of 7 to 15 days for removal of the obstruction as per orders dated 23.11.2001 and 2.5.2003. If the obstruction is not removed, authorities should take necessary steps for execution of the said orders within a period of 30 days thereafter. —

5. Mr Nair, learned counsel for the review petitioner submits that the review petitioner did not receive any notice of the writ proceeding. As a result, he

was prevented from placing his case before the Court. He submits that the orderdated 23.11.2001 was already complied with by the Nagaon Development Authority,which was communicated to the Additional District Magistrate on 11.09.2002. Therefore, the order dated 11.12.2013 may be suitably reviewed.

6. Mr Borthakur, on the other hand, submits that the aforesaid order dated 23.11.2001 as well as the subsequent order dated 02.05.2003, have not yet been complied with and the dispute between the parties still survives.

7. Having regard to the above and on due consideration of the rival submissions, Court is of the view that Deputy Commissioner, Nagaon, can pass suitable order(s) in MR Case No. 210 of 2001. To that extent, this Court’s direction issued to the Deputy Commissioner, Nagaon, to remove the obstruction allegedly made by the review petitioner may have to be modified. Accordingly, that part of the order dated 11.12.2013 is reviewed. Deputy Commissioner, Nagaon, shall now issuenotice to both the parties, i.e., review petitioner and respondent No. 7/writ petitioner and after hearing both the sides, pass appropriate order(s) as may be deemed fit and proper in the facts and circumstances of the case. This shall be done within a period of 30 (thirty) days from the date of receipt of a certified copy of this order. If the Deputy Commissioner feels it necessary, he shall requisition the relevant record from the concerned development authority. 8.Review petition as well as writ petition are accordingly disposed of.