RAJ KUMAR Vs. STATE

JUDGEMENT

(1.) In these three connected criminal references the Second Additional District and Sessions Judge of Agra has recommended that proceedings pending against the applicants in the court of the City Magistrate of Agra Under Section 133 CrIPC should be quashed.

(2.) The applicants are occupying various wooden stalls and other structures standing on the footpaths bordering the Hospital Road in Agra. These structures are said to have been put up as a temporary measure in the year 1948 to accommodate refugees arriving from Pakistan. Subsequently the Shivaji Market was built for the use of refugee shop-keepers and many stallholders shifted from the Hospital Road, but the applicants refused to budge and remained in occupation of the offending structures. In December 1957 certain members of the public complained and moved the City Magistrate of Agra to take action in the matter. The Station Officer of the Agra Kotwali was asked xo make an inquiry and his report dated 9/1/1958, which is on the file, shows that these stalls were found to constitute a real obstruction to to tree How of traffic along the Public road. In. quiries were also made from the Municipal Board and its reply revealed that the Board too was alive t0 the inconvenience suffered by the public on account of the continuance: of the stalls and was contemplating filing suits for ejectment of the applicants. The learned City Magistrate accordingly decided to take action and on 17-3-1958 issued a preliminary notice Under Section 133 CrIPC calling on the applicants to remove the stalls.

(3.) The learned Additional District and. Sessions Judge- recommends the quashing of the I proceedings that have been taken Under Section 133 for the removal of these stalls and other structures, on (the ground that they have been allowed to re-j main in existence for a considerable time and the public have acquiesced in their continuance. In this connection he has referred o the case of Rameshwar Prasad v. State of Bihar, AIR 1958 Pat 210, 1957 (5)BLJR 437, 1958 CriLJ 551, in which it was held that a house constructed on railway land and allowed to stand there for seven years should not be removed by an order under this section. It was remarked In that case that proceedings Under Sections 133 CrIPC should not be used as a substitute for a civil suit. I do not think however that it is possible to lay down an inflexibility rule that where a structure constituting an unlawful obstruction to a public way has been allowed to stand for a number of years it can in no case be ordered to be removed Under Section 133. It is to be noted that there is nothing in the Section itself prescribing any kind of time limit; and each case must be decided in the light of its own facts and circumstances.