RAM ASRAY Vs. STATE

JUDGEMENT

(1.) This is an application in revision arising out of an order passed by a Sub-Divisional Magistrate in the district of Sultanpur directing the applicant, Bam Asrey, to remove a certain encroachment on a public way by demolishing a portion of his house on the south-east corner. He went up in revision before the learned Sessions Judge who dismissed his application. He has now come up to this Court in revision.

(2.) The facts are simple. After a local inspection the Sub-Divisional Magistrate, Sadar, passed an order on the 15th October, 1950 under Section 133 of the Code of Criminal Procedure directing the applicant and one other person to remove the alleged encroachments by the 25th October, 1950 or "to show cause on that day why they should not be made to do so". Ram Asrey appeared on the 25th October, 1950 and filed an objection in which he said that his residential house had not encroached upon the public way by even an inch and that it had been re-constructed on its old foundations. He accordingly prayed that a jury be appointed in accordance with law to decide the matter. On the 2nd November, 1950, the Magistrate directed Ram Asrey to furnish three names for appointment as jurors on the next date and said that he would nominate four other persons to act on the jury, He apparently meant that he would nominate three persons to be members of the jury and one to act as foreman. On the 9th January, 1951 Bam Asrey nominated three persons and the learned Sub-Divisional Magistrate directed that they be included in the jury. On the same date the complainant also nominated three persons and the learned Magistrate directed that they be also included in the jury and at the same time he nominated one Sri Jagannath Prasad, a Vakil, as the foreman. The jurors submitted a report finding by a majority that the original order of the Magistrate was reasonable and proper and the Magistrate accordingly made tile order absolute on the 11th May, 1951.

(3.) This order is challenged on two grounds. The first objection is that the procedure indicated in section 139-A was not followed by the learned Magistrate. According to that section where an order is made under Section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order is made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under section- 137 (procedure where the opposite party appears to show cause) or section 138 (procedure where jury is claimed), inquire into the matter.