RAMU RAM Vs. LUMBA RAM

JUDGEMENT

(1.) THIS is a reference, submitted by Miss Kanta Bhatnagar. Additional Sessions Judge No. 2, Jodhpur. recommending that the order, dated November 30. 1971. of the Sub-Divisional Magistrate. Phalodi. be quashed.

(2.) THE brief facts of this ease, it appears, are that on January 12. 1970, Lumba Ram made an application in the court of Sub-Divisional Magistrate, Phalodi. under Section 133. Criminal Procedure Code, avouching that in the out-skirt of village Lohawat there ran a road, connecting Lohawat with Osian. It was about 100 ft. wide. On its one side Ramu Ram and Manohar Lai were constructing 'pucca' shops. That construction was likely to create obstruction and inconvenience to the passersby and the public at large. The petitioner, therefore, prayed that orders be issued requiring Ramu Ram and Manohar Lai to remove the obstruction. On receipt of that complaint the Sub-Divisional Magistrate, Phalodi, passed a conditional order, asking the persons causing obstruction to the road to stop the erection of the building or. if they objected so to do. to appear before himself and move to have the order set aside or modified. Ramu Ram submitted a written reply on March 20. 1970. wherein he contended that he had not intruded upon the public road and that the plot on which he had been constructing the shop had been allotted to him by the Gram Panchayat. Ramu Ram further urged that petitioner Lumba Ram had been ex-Sarpanch of the Gram Panchayat. Lohawat and because of some differences of opinion in the matter of according permission to raise construction he got annoyed and that led him to make the frivolous application. Learned Sub-Div. Magistrate, Phalodi recorded the evidence, led by both the parties and eventually held that there was infringement on the public way. He accordingly directed that the building meant for the purpose of starting a hotel should be removed.

(3.) AGGRIEVED by the above order Ramu Ram presented a revision petition to the court, of Sessions Judge. Jodhpur. That revision petition was transferred for its disposal to the court of Additional Sessions Judge. No. 2. Jodhpur, Learned Additional Sessions Judge is of the opinion that when there was no direction in the conditional, order to remove the building the Sub-Divisional Magistrate had no jurisdiction to order its elimination. Learned Additional Sessions Judge has, therefore submitted this reference, re- commending that the impugned order, dated November 30. 1971, passed by the Sub-Divisional Magistrate. Phalodi. should be quashed.