BALBIR SINGH Vs. STATE OF UP

JUDGEMENT

(1.) This is a reference made by the Civil and Sessions Judge, Saharanpur recommending that proceedings Under Sec. 133 of the Code of Criminal Procedure for the removal of a Khokha (temporary structure) under reference be set aside.

(2.) An application Under Sec. 133 of the Code of Criminal Procedure was filed by the Assistant Engineer PWD for the removal of a wooden stall (Khokha) which exists near a footpath on the railway station road crossing, Saharanpur. The opposite party before the City Magistrate was Balbir Singh. He being a refugee from Punjab was permitted to construct a Khokha near the site in suit in 1950 on the condition that he would vacate the site and remove the Khokha within thirty days of a written notice by the PWD and that he would not hold it continuously for a period of more than one year from the date of the grant. The said Khofyha continued to exist for more than ten years. It was sought to be removed for the first time in 1962 by the Municipal Board, Saharanpur by taking proceedings against the Applicant Under Sec. 299 of the UP Municipalities Act. The Applicant did not remove the Khokha and he was prosecuted and convicted by the trial court. He was, however, acquitted on appeal by the Sessions Judge. Thereafter he brought a suit for permanent injunction in the court of the Civil Judge, Saharanpur which was decreed on 30 -9 -1963. An appeal against the aforesaid decision was dismissed by the District judge on 5 -3 -65 and the Municipal Board was restrained from taking action Under Sec. 265 of the UP Municipalities Act for the demolition of the said Khokha.

(3.) Subsequently the Assistant Engineer, PWD, filed an Application Under Sec. 133 of the Code of Criminal Procedure for the removal of the aforesaid Khokha in the court of the District Magistrate, Saharanpur on the allegation that there was encroachment by the Applicant on the public road. The Applicant objected that the Khokha was in existence for the last 15 years and it did not cause any obstruction to the public pathway and therefore, it could not be removed Sec. 133 of the Code of Criminal Procedure. The application had been transferred to the City Magistrate for disposal. He found that there was no evidence in support of the Applicant's denial of the public right of way over the site in dispute. Ha directed the case to proceed Under Sec. 137 of the Code of Criminal Procedure. Aggrieved from the aforesaid order Balbir Singh filed an application in revision before the court below. It allowed the revision and directed that the record of the case be submitted to this Court with the recommendation that the proceedings Under Sec. 133 of the Code of Criminal Procedure for the removal of the said Khokha of Balbir Singh be set aside.