Norang vs Harde Ram and ors.

Ujagar Singh, J.—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 R1, statement of Ami Lal as also statement of Mussiadi Lal and a site plan Exhibit R4, respectively, were produced. Har Sarup Sarpanch, Mussadi Lal, Norang respondent and one Pirthvi Singh were examined as witnesses.

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.

The petitioner filed revision petition on the ground statedtherein and the learned Additional Sessions Judge (11), Bhiwani, dismissed the revision as wholly devoid of merits on the reasons given in the order.

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.

Section 137 of the Code is reproduced below for ready reference

"137, Procedure where existence of public right is denied. (1) Where an order is made under section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under section 138, inquire into the matter.

(2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Court and, if he finds that there is no such evidence, he shall proceed as laid down in section 138.

(3) A person who has, on being questioned by the Magistrate. under subsection (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial."

This section lays down that as soon as a person against whom a preliminary order under section 133 of the Code is made appears, he is to be questioned as to whether he denies the existence of any public right, and if he does so, the Magistrate shall enquire into the matter before he proceeds under section 138 of the Code. It is further provided that if in such enquiry the Magistrate finds that there is any reliable evidence in support of the denial, fie shall stay the proceedings until the matter involved is decided by the competen Court and if he finds that there is no such evidence, he shall proceed as laid down in section 138. In case of failure to deny or failure to adduce reliable evidence in support there of, such a person shall not in the subsequent proceedings be permitted to make any such denial. In a nutshell, a person against whom preliminary order is made has to deny if he wants to contest. The learned Magistrate has, of course, mentioned in his order that in their reply the petitioner and respondent No. 1 did not deny the existence of the public right and, therefore, evidence was recorded. I have been shown the copy of the written reply wherein a specific denial is made and site in dispute has been claimed to be in their possession for the last so many years and the said observation of the trialcourt is against the facts and therefore, the learned Magistrate was required to call upon the petitioner and respondent No. 3 to adduce evidence and if the evidence produced had been satisfactory, the learned Magistrate was bound to stay the proceedings till the decision by a competent Court. The learned counsel is correct when he says that this provision is mandatory and failure to observe this mandatory provision causes not only prejudice but also leads to the quashing of the order.

There is no dispute that the provisions of said section 137 of the Code are mandatory but the maximum it provides is that denial supported by evidence leading to the satisfaction of the learned Magistrate will end in stay of the proceedings till the decision by the competent Court, but in this case in spite of nonobservance of the mandatory provisions we have a judgment of the Civil Court in respect of the site in dispute, copy of which has been placed on the record. This copy of the judgment shows that a civil case No. 434/188 of October 3, 1969, was instituted by one Ami Lal against Mussadi and others and the sarne was decided on November 6, 1971. Therein defendants Mussadi Lal and others were restrained from taking illegal possession of the part of thoroughfare shown in the site plan in yellow colour, which was in between the plots carved out by the Consolidation authorities and the Abadi Deh. Defendants a further restrained from causing any type of obstruction on this thoroughfare It is admitted that the site in dispute in the said civil suit was exchanged by Mussadi Lal land others with the petitioner herein and since that oral exchange the petitioner has been in possession thereof. There is no serious dispute that the site in dispute involved in the said civil suit is the same as involved in this case. The finding of the civil suit is challenged by the learned counsel for the petitioner on the ground that thereafter there was a compromise between the parties and this judgment was modified in appeal. Another challenge is that Gram Panchayat was not a party in that suit. In my view, both the objections are not tenable; firstly, whether Gram Panchayat was a party or not the Civil Court was called upon to restrain Mussadi Lal and others from encroaching upon the thoroughfare; secondly the compromise between the parties at appellate stage will not enable the petitioner to challenge the finding that the site in dispute was a thoroughfare which is always for the benefit of the public.

In this situation, the provisions of said section 137 are almost complied with at a competent Court had already given a finding and no useful purpose would have been served by staying the proceedings till the decision by a competent Court. From another angle, even if the denial was there but the evidence in support thereof was not satisfactory, no stay could be granted. Faced with this situation there is no alternative but to hold that both the said provisions were mandatory, but in the circumstances of this case, it would have served no useful purpose to comply with the same. Moreover, there is no prejudice to the petitioner in this case inasmuch as he claims to be successorininterest of Mussadi Lal and others against whom injunction was issued from encroaching upon the site in dispute and their plea that they were in possession for the last about 40 years as owners is surely against the record. The civil suit holding the site in dispute as part of the thoroughfare was decided on November 6, 1971, and thereafter oral exchange had taken place by way of which the petitioner claims his right over the disputed site. This circumstance itself shows that the plea of the petitioner and the evidence in support thereof could not be satisfactory. With these observations, I do not find any substance in this petition and the same is dismissed.