MALKHAN Vs. MOLHAR

JUDGEMENT

(1.) LIST revised. Counsel for the respondents did not appear, but State Counsel is present and he has been heard. The prayer is for quashing the judgment and orders of the courts below (Annexures 7 and 5). The order of the Magistrate is Annexure 5. Vide this order the Magistrate directed the Station Officer to have the obstruction to the public passage removed. The revisional court has recited full facts. It would appear that Molhar moved an application before the Tahsildar that Malkhan, present applicant, was obstructing public way. Thereafter, Molhar moved another application that the revisionist Malkhan has constructed a wall which is giving great inconvenience. The Supervisor Qanungo inspected and reported that such a wall has been constructed and the public way be got opened. From the further recital in the judgment of revisional court it would be found that no notice was given and an order outright for removal of the obstruction was passed. In paragraph 11 of the affidavit also it is stated that the order of 2nd September, 1983, i. e. the impugned order was passed by the Magistrate ex parte. It is noteworthy that the allegations in paragraph 11 of the affidavit are admitted in paragraph 13 of the counter affidavit. The stand taken in the counter affidavit is that the Magistrate applied his mind and after perusing the report of the supervisor Qanungo passed the order in question which is valid. Considering the law on the point such submission in the counter affidavit is not sound. A rejoinder affidavit has also been now filed; needless to refer to the same. The position of law is very clear and is embodied in section 133, CrPC that section provides that if the Magistrate is satisfied that any unlawful obstruction should be removed from any public place such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance within a specified time or if he objects to do so to show cause why the order should not be made absolute. In view of this legal proposition only a conditional order can be passed and the other side is to be given an opportunity to show cause if public right is denied. Not only that the legislature has further provided another protection to the party concerned by enacting section 137 of the CrPC which provides that if there is any reliable evidence in support of the denial of the public right the Magistrate shall stay the proceedings forthwith and direct the parties to have their respective rights determined by a competent civil court. Both such opportunities provided to the present applicant have been denied and absolute order should not have been passed and the revisional court was equally in error to hold that in case of any emergency such absolute order denying the opportunity to contest the notice can be passed. In fact, even a preliminary order has not been framed as required under section 133 of the CrPC. Consequently, both the impugned orders are bad.

(2.) IN the result, the application under section 482, CrPC is allowed and the order dated 2-9-1983 of the SDM Roorkee (Annexure 5) and the order dated 4th October, 1983 (Annexure 7) of the revisional court are both quashed and set aside. I may, however, observe that the judgment and order of this Court would not in any way debar the SDM to pass any preliminary conditional order afresh under section 133 of the CrPC after recording his satisfaction as well, if he feels so satisfied. Application allowed.