1. This is reference under Section 438 of the Code of Civil Procedure by the District Magistrate, Rupar recommending that the order dated September 10, 1969 passed by the Sub Divisional Magistrate holding in proceedings under Section 133 of the code that the place in dispute is a thoroughfare be set aside and that the matter in dispute be determined by a competent Civil Court. The facts leading to the case are as under:--
Jaswant Singh and Gurbachan Singh are brothers. They constructed a wall in front of their house. Jagir Singh and others lodged a report with the police saying that the respondents had encroached upon public place and action be taken against them for that encroachment under Section 133, Criminal P. C. The police put up before the Sub-Divisional Magistrate a report to the effect that the respondents had by construction of a wall in a public place committed encroachment. On October 4, 1968, the Magistrate passed a conditional order under Section 133 of the Code directing for removal of the encroachment by demolition of the wall within ten days of the date of receipt of the order or else show cause against its demolition. After the service of the copy of the order was affected upon the respondents the case eventually came up on January 3, 1969. On that day, both the petitioners and the respondents were present in the Court of the Sub-Divisional Magistrate. The Magistrate directed that the evidence of the petitioners be recorded. The Magistrate, however, proceeded to record the evidence of the respondents at first on April 24, 1969. On the conclusion of the evidence of the respondents, he recorded the evidence of the petitioners. After having recorded the evidence of both the parties, the Magistrate made inspection of the spot on August 28, 1969. In his order, he has discussed the evidence of witnesses of both the parties and also taken into consideration the note pertaining to the inspection of the spot. Relying upon his personal view consequent upon inspection of the spot, he held that the place was a public place and consequently the action as taken against the respondents for removal of the encroachment was fully called for.
2. While conducting proceedings in pursuance of notice issued under Section 133, Criminal P. C., the Magistrate has completely ignored to consider the provisions of Section 139A of the Code. He has conducted enquiry under Section 137 of the Code. Before he could do so, he must have complied with the provisions of Section 139-A. Under sub-section (1) of S. 139A, the Magistrate, when the parties appeared before him after issue of notice under Section 133, should have questioned the respondents as to whether they denied their existence of any public right in respect of the place, in which they had constructed the wall and if they denied that fact, the Magistrate had to enquire into the matter. As the language of sub-section (1) of Section 139-A indicates, the provision is mandatory. It is obligatory upon a Magistrate to so question the respondent or respondents and if the existence of any public right in the place of dispute encroached upon is denied, he has got to hold enquiry into the matter. The nature of enquiry is provided in sub-section (2) of Section 139-A. It is laid down therein that the Magistrate has to ask for evidence from the respondents in support of their above-said denial and if he finds that the evidence is reliable, he has to stay his hands and to discontinue the proceedings and pass the order that the matter of existence of a public right in the place in dispute be determined by a competent Civil Court. As given in sub-section (3) of S. 139-A, it is only upon failure on the part of the respondents to adduce reliable evidence in support of their denial that proceedings could be initiated under Section 137 of the Code and the evidence recorded in the same manner has to be recorded in a summons case. In the present case, the Magistrate has given a complete go-bye to the provisions of Section 139-A. He has straight away held the enquiry under Section 137 in order to determine the question whether the place, upon which the wall had been constructed by the respondents, is a public path-way and in respect of it there exists a public right or not. Compliance with the procedure under Section 139-A is a condition precedent for exercise of power of enquiry under Section 137. No enquiry could be held under Section 137 unless the one sided enquiry as contemplated by Section 139-A is held by the Magistrate only on the basis of evidence of the respondent or respondents to the exclusion of that of the petitioners. The enquiry conducted by the Magistrate under Section 137 without following in the first instance the procedure under Section 139-A is unwarranted in law and vitiates the proceedings.
3. The question of applicability of Section 139-A vis-a-vis Section 137 of the Code came up for consideration in an earlier case of this Court. Dalip Singh v. Gurdial Singh, Criminal Revn. No. 122-R of 1969 D/-5-5-1970 (Punj). In that case, it was held that the enquiry envisaged by Section 139-A is in the nature of an ex parte summary enquiry and what the Magistrate has to determine is as to whether there is a prima facie reliable evidence in support of the denial and not that the non-existence of the public right should be affirmatively proved, that it was not the duty of the Magistrate to take evidence of both the sides and then to judge, if the party against whom the order had been made had succeeded en establishing the non-existence of the public right and that if the evidence adducted by the party against whom the order was made was legal and reliable, there is an end of the matter and the Magistrate cannot but stay his hands and refer the party concerned to the Civil Court.
4. The District Magistrate, before whom the revision petition from the order of the Magistrate was filed, has quite rightly recommended the case that the order of the trial Magistrate be quashed but he has not suggested a correct consequential order to be made in the case. He has recommended that the matter should be decided by a competent civil Court and should not have been decided by the Sub-Divisional Magistrate. It is the trial Magistrate, who is entitled to determine the question as to whether in the present case, there should be direction for the matter in dispute being determined by a competent civil Court. The trial Magistrate could do so only if he had followed the course of procedure enjoined upon him by Section 139-A of the Code. I have been through the proceedings of the case and I find that on the date of the first appearance of the respondents in pursuance of the notice issued under Section 133 of the Code, the Magistrate never recorded the statement of the respondents under sub-section (1) of Section 139-A and having not recorded any such statements indicative of denial of the respondents as to the existence of public right in the place, upon which the encroachment was said to have been made by the respondents, no enquiry was held by him under sub-section (2) of Section 139-A of the Code. Under the circumstances, I direct that the order of the trial Magistrate be quashed and he may proceed under Section 139-A and thereafter if necessary under Section 137 of the Code.
5. For the foregoing reasons, the order of the trial Magistrate is quashed and the case is sent back to him for being decided according to law. The counsel for the parties have undertaken that the parties will appear before the Sub-Divisional Magistrate, Kharar on August 2, 1971.
6. Order accordingly.