Ravindra Singh, J. - (1.) Heard Sri A.B.L. Gaur, learned counsel for the petitioners, Sri Devendra Swaroop, learned counsel for the respondent Nos. 4 & 5 and the learned A.G.A.
(2.) This petition has been filed against the order dated 8.6.1987 passed by the Sub Divisional Magistrate, Hathras, District Aligarh in Crl. Case No. 55/12 under Section 133 Cr.P.C. BASU Dev and Ors. v. Satya Prakash and Ors., whereby the application filed by the petitioners was dismissed and they were directed to remove the obstruction/ encroachment from the public way, over the land of Khasra No. 268 and the order dated 17.3.1989 passed by the learned Special Judge/ Addl. Sessions Judge, Aligarh in Criminal Revision No. 256 of 1987, whereby, the revision filed by the petitioners was dismissed.
(3.) It is contended that on the application filed by the respondent nos. 4 and 5, the proceedings under Section 133 Cr.P.C. were initiated in the court of learned S.D.M. Hathras. The plot Khasra No. 268, having an area of 3 bigha and 07 dism. Was the property of Gaon Sabha. The petitioners had constructed a Chabutra over the land in dispute in the year 1965. It was an encroachment made over a public way, so an application was moved by one Leeladhar against Pyarey Lal and Ors. praying therein that they may be dispossessed from the land in dispute and they may be punished accordingly. On that application, supervisor Kanoongo, Sasani submitted a report in the court of learned S.D.M. Hathras with a recommendation of initiating a proceedings against Pyare Lal and Ors. under Section 133 Cr.P.C. and the encroachment may be removed. Thereafter, the proceedings under Section 133 Cr.P.C. were initiated by the learned S.D.M. Hathras and a conditional order dated 12 2.1996 was passed. The petitioners had denied the allegations by submitting that there was no public way over the plot in dispute and prayed for conducting an inquiry. Then the learned S.D.M. appointed three members Juri and Naib Tehsildar was appointed as Foreman. The aforesaid Juri took a decision, in light of that decision, the conditional order dated 12.2.1966 was made absolute by the learned S.D.M. Hathras on 16.7.1967 directing to the petitioner's side to remove the construction within 15 days. This order was challenged in the court of learned Sessions Judge, Aligarh who made a reference to the Hon'ble High Court, with a recommendation that the order dated 16.7.1967, passed by the learned S.D.M. Hathras may be set aside and the criminal proceedings pending in the court of learned S.D.M. may be stayed until the matter of the existence of public right of way over the encroachment in question has been decided by the competent Civil Court. This reference was rejected and the order dated 16.7.1967 passed by the learned S.D.M. was affirmed by this Court on 18.11.1968.;