NORANG Vs. HARDE RAM

JUDGEMENT

(1.) CITY Magistrate, Bhiwani, was approached for removal of illegal obstruction caused in the street thoroughfare in village Banganwala, district Bhiwani, through an application under section 173 of the Code of Criminal Procedure (for short the 'Code') on March 14, 1985, by Sarvshri Harde Ram and Rangi Lal, present respondents 1 and 2, against Norang petitioner and Jai Dayal, respondent No. 3. Rangi Lal was examined and on his behalf three affidavits; namely, that of Hirde Ram, Daya Nand Panch and Nanu Ram Panch were annexed with the application. On a prima facie finding the Magistrate was satisfied that the present petitioner and respondent No. 3 were in unlawful possession and, therefore, a notice was issued for April 10, 1985. The respondents therein appeared and were directed not to make any kind of change on the spot. Written statement was filed by them and they claimed to be in possession of the disputed site for the last 40 years and claimed the application to be false. Various other objections were made in the written statement and the learned Magistrate finding, that there was no denial of the existence of the public right and therefore, the evidence of the applicant was taken under section 138 of the Code. Respondents' evidence was closed by them and the case was fixed for argument after both the parties had produced their evidence. The applicant produced a certified copy of Exhibit A of a compromise in the Civil Court dated November 6, 1971, copy of the statement of Shri Harsarup Sarpanch; report of the site inspection and also a copy of the resolution passed by the Panchayat on September 5, 1984. Lal Chand, Daya Nand and Rangi Lal appeared as witnesses. From the respondents' side copy of compromise Exhibit R-1, statement of Ami Lal as also statement of Mussiadi Lal and a site plan Exhibit R-4, respectively, were produced. Har Sarup Sarpanch, Mussadi Lal, Norang respondent and one Pirthvi Singh were examined as witnesses.

(2.) AFTER going through the record and hearing arguments, the learned Magistrate came to the finding that no reliance could be placed on the evidence produced by the respondents (now petitioner and respondent No. 3) and found the alleged encroachment on the thoroughfare shown in red colour in the site plan mirk 'C' situated in village Banganwala, tehsil and district Bhiwani and the same was held to be unlawful and, therefore, directed the same to be removed.

(3.) BOTH the orders of the lower Courts have been challenged mainly on the ground that the provisions of Section 137 of the Code were mandatory and as the same have been contravened by the learned Magistrate, the orders, passed in pursuance thereof are liable to be quashed. I have heard the learned counsel of both the sides and have gone through the file as also the judgment of Sub Judge 3rd Class, Bhiwani, in a case Ami Lal son of Chuni Lal v. Mussadi, Pehlad and Inder sons of Sheo Pal, which was a suit for permanent injunction restraining the said Mussadi and others from illegally and forcibly taking possession of the part of the thoroughfare.