BUDHU Vs. JASWANT AND OTHERS

JUDGEMENT

(1.) THIS reference has been made by the learned III Addl. Sessions Judge, Meerut, recommending that the order dated 29.4.63 passed by Sri G.P. Mittal, Magistrate Second Class, Sardhana, rejecting the application under Section 133, Code of Criminal Procedure filed by the applicant be quashed.

(2.) THE applicant who is a resident of village Kamala, police station Binauli, district Meerut filed an application under Section 133, Code of Criminal Procedure before the Sub -Divisional Magistrate Sardhana on the assertion that the opposite parties had caused obstruction in, a public way and that it should be removed. On 5.2.1963 the S.D.M. Sardhana passed a conditional order directing the opposite parties to remove the obstruction or to show cause before the Tahsildar Magistrate Sardhana on 20.2.1963. In response to the notice issued, the opposite parties filed ah objection before the Tahsildar in which they alleged that a similar application filed by the applicant had been rejected by the Tahsildar on 27.12.1961 and his revision against the Tahsildar's order had also been dismissed by the Sessions Judge on 7.3.1962 and therefore the present application was not maintainable. They also filed a copy of the judgment of the First Temporary Civil and sessions Judge, Meerut before the Magistrate. The learned Magistrate rejected the application holding that the only remedy for the applicant was to go to the civil court as has been directed by the Temporary Civil and Sessions Judge in the earlier proceeding. The learned Sessions Judge, however was of the opinion that as under Section 49 of the U.P. Consolidation of Holdings Act the jurisdiction of the civil court was barred, the Magistrate should have decided the matter and should not have dropped the proceeding. He has, therefore, made this recommendation.