H.C.P. Tripathi, J. - (1.) THIS reference has been made by the learned III Addl. Sessions Judge, Meerut, recommending that the order dated 29.4.63 passed by Sri G.P. Mittal, Magistrate Second Class, Sardhana, rejecting the application under Section 133, Code of Criminal Procedure filed by the applicant be quashed.
(2.) THE applicant who is a resident of village Kamala, police station Binauli, district Meerut filed an application under Section 133, Code of Criminal Procedure before the Sub -Divisional Magistrate Sardhana on the assertion that the opposite parties had caused obstruction in, a public way and that it should be removed. On 5.2.1963 the S.D.M. Sardhana passed a conditional order directing the opposite parties to remove the obstruction or to show cause before the Tahsildar Magistrate Sardhana on 20.2.1963. In response to the notice issued, the opposite parties filed ah objection before the Tahsildar in which they alleged that a similar application filed by the applicant had been rejected by the Tahsildar on 27.12.1961 and his revision against the Tahsildar's order had also been dismissed by the Sessions Judge on 7.3.1962 and therefore the present application was not maintainable. They also filed a copy of the judgment of the First Temporary Civil and sessions Judge, Meerut before the Magistrate. The learned Magistrate rejected the application holding that the only remedy for the applicant was to go to the civil court as has been directed by the Temporary Civil and Sessions Judge in the earlier proceeding. The learned Sessions Judge, however was of the opinion that as under Section 49 of the U.P. Consolidation of Holdings Act the jurisdiction of the civil court was barred, the Magistrate should have decided the matter and should not have dropped the proceeding. He has, therefore, made this recommendation. I have read the order of the learned Sessions Judge and have also perused the explanation given by the Tahsildar Magistrate. As the application under Section 133, Code of Criminal Procedure filed by the applicant in respect of this very matter had been rejected by the Magistrate earlier and as the Magistrate's order had been upheld by the Sessions Judge in revision with a direction that the applicant could seek this remedy m the Civil. Court, I am of opinion that there was no other option for the Tahsildar Magistrate but to abide by that decision and to direct the applicant to seek his remedy in a civil court. Even if it is held that Section 49 of the Consolidation of Holdings Act bars the jurisdiction of the civil court for entertaining such matter when the village was under consolidation operation, the Tahsildar Magistrate hast no other option but to pass the order that he did and it was for the applicant to decide whether would like to seek his remedy in the civil court or he would file an application, before the consolidation courts. 4. I do not agree with the learned Sessions Judge that Section 49 of the Consolidation of Holdings Act bars the jurisdiction of the Civil Courts even in such mattery, 5. Section 49 of the Consolidation of Holdings Act reads as under: "Notwithstanding anything contained in, any other law for the time being in force, the declaration and adjudication of rights of tenure -holders in respect of land lying in an area for which a notification has been issued under Section 4 or adjudication of any other right arising out of (Sic) dation proceedings and (Sic) to which a proceeding (Sic) ought to have been taken (Sic) this Act, shall be done in acc(Sic) nee with the provisions of this (Sic) and no civil or revenue c(Sic) shall entertain any suit or (Sic) proceeding with respect to rights such lender with respect to a other matter for which a proceeding could or ought to have (Sic) taken under this Act." 6. A perusal of this se(Sic) makes, it obvious that it relate, (Sic) the declaration and adjudica(Sic) of rights of tenure -holders in (Sic) pect of land lying in an area It has nothing to do with the rights of public an a way about which the criminal courts under Section 133, Code of Criminal Procedure exercise a jurisdiction and the Civil courts too can exercise their jurisdiction. 7. In this view of the matter there is no force in this reference and it is rejected.;