THE RORANWALA AMIN GANJ COMPANY Vs. BHAGWAN DASS

JUDGEMENT

(1.) THESE are four criminal revisions The Petitioner is common to all. The Petitioner is a limited company described as the Roranwala Amin Ganj Company Limited, Roranwala. The Respondent in Criminal Revision No. 644 of 1969 is Bhagwan Dass and that in Criminal Revision No. 646 of 1969 is Jiwan Mal. The Respondents in Criminal Revision No. 688 of 1969 are Chaman Lal and Gopi Ram. The Respondent in Criminal Revision No. 689 of 1969 is jai Chand. The facts pertaining to all the four revision petitions are identical and involve common question of law and need not be recapitulated in respect of each case. The facts given below pertain to the case giving rise to Criminal Revision No. 644 of 1969 . The Petitioner company manages the affairs of mandi in the town of Roranwala, In front of the shops in the mandi, there is road 95 feet in width. That road is being maintained and looked after by the Petitioner company. The Petitioner company filed on December 12, 1967 an application under Section 133 of Code of Criminal Procedure against Bhagwan Dass Respondent. It was stated in that application that the Respondent had made encroachment upon an area of 37 feet 19 feet of the road by ejecting a katcha boundary wall and also by construction of a latrine therein. Prior to the issue of notice to the Respondent to show cause against the encroachment, the Executive Magistrate recorded the statement of Des Raj, Secretary of the Petitioner company P. W 1. He stated that the road had been encroached upon by the Respondent. Charanjit Singh, Patwari P. W. 2 appeared to prove that the road encroached upon by the Respondent according to the entries made in the jamabandi was 15 to 18 karams in width. Lakhu Ram P. W. 3 went into the witness box and proved the encroachment by the Respondent. After recording the above evidence the Magistrate passed the order on March 22, 1968 directing the issue of notice to to the Respondent to lift encroachment within 15 days of the service of the notice or to show cause against removal of encroachment by appearing before the Magistrate on April 18, 1968. The Respondent in reply filed written statement on May 2, 1968. In that written statement, he denied the existence of public right in the road. He further stated that the structure existing on the road was very old one and that the application of the Petitioner company filed under Section 133, Code of Criminal Procedure deserved to be dismissed

(2.) THE counsel for the Respondent applied on October 28, 1968 for inspection of the spot. The Magistrate made its inspection on November 9. 1968 and recorded inspection report on November 10, 1968. In that report, he took the view that the structure on the road alleged by the Petitioner company to be encroachment appeared to be old and existed since 1947. He said that he not only so found from the personal observation of the nature of the structure as existing on the spot but also enquiries from the persons in the neighbourhood revealed that the structure was that much old.

(3.) TAKING that view of the matter, the Magistrate dismissed the application on November 28, 1968. Feeling aggrieved of the above order of the Magistrate the Petitioner company filed a petition for revision with the District Magistrate, That revision petition was dismissed on February 12, 1969. The Petitioner company has now invoked the revisional jurisdiction of this Court under Section 439 of the Criminal Procedure Code. Shri Prem Nath Aggarwal appearing on behalf of the Petitioner has contended that neither procedure provided in Section 139 A nor that laid down in Section 137 of the Code of Criminal Procedure has been followed by the Magistrate while disposing of the application filed an behalf of the Petitioner under Section 133, Code of Criminal Procedure and consequently the order is vitiated and untenable.