- (1.) The applicant has approached this Court assailing the order dated 19 September 2015 passed by the Incharge District Judge/Additional District Judge, Court No.2, Allahabad in Criminal Revision No.360 of 2015 (Ishwar Deen v. State of U.P. & others) arising from an order dated 19 February 2015 passed by the Sub Divisional Magistrate (S.D.M.), Phulpur, Allahabad, in Case No.1/23/43/55/91/76/110/43 of 2013-14 (State v. Ishwar Deen), under Section 133 & 138 Cr.P.C., P.S. Jhunsi, Tehsil Phulpur, District Allahabad.
(2.) The third respondent submitted an application on 8 August 1985 to the S.D.M. Phulpur, District Allahabad stating that the applicant along with some persons blocked part of plot no. 374 situated at Gram Katka, Pargana Jhunsi, Tehsil Phulpur, District Allahabad, consequently, blocking part of G.T. Road (Arazi No.399). The third respondent sought a direction to restrain the applicant from raising construction on the road. Upon complaint, the Station House Officer, Sarai Inayat, submitted a report to the concerned Magistrate stating therein that the allegations are factually correct and genuine, thus, recommending that proceedings under Section 133 Cr.P.C. be initiated against the applicant for removing the obstruction and nuisance on public road; consequently, a case being Case No.1 of 1985 (State v. Ishwar Deen) came to be registered and a conditional order under Section 133 (1) Cr.P.C. was passed directing the applicant to remove the obstruction and nuisance within 15 days, or to show cause.
(3.) The applicant assailed the order dated 24 August 1985 before this Court in proceedings under Section 482 Cr.P.C. , wherein, status quo order was initially passed, thereafter, the applicant got the petition dismissed as not pressed on 10 November 1986. Thereafter, on an application of the third respondent, an order of status quo was passed on 13 January 1987 by the Magistrate, and on 6 March 1987 the Magistrate directed the Station House Officer, Sarai Inayat, to be vigilant so that no construction could be raised on the spot. Aggrieved, applicant assailed the order dated 13 January 1987 and 6 March 1987 in a petition under Section 482 Cr.P.C.. Upon exchange of affidavit, the Court dismissed the petition by the order dated 7 February 1990. The operative portion of the order is extracted: "U.P. Roadside Land Control Act, declared 'Controlled areas' as provided in Section 3 of the Act. Section 5 of the Act prescribes for restrictions on construction of building inside the controlled area and Section 6 provide that the permission to build inside the controlled area can be granted on application by the authority. It has not been case of the applicant that he has obtained any permission to build the house on the land in question under the U.P. Roadside Control Act. The earlier application under 482 Cr.P.C. in which the prayer was for the quashing of the proceeding of the case number 1 of 1985 has been dismissed as, not pressed. The proceeding under Section 133 Cr.P.C. cannot be said to be without jurisdiction in this petition no prayer has been made for the quashing the proceeding of the aforesaid case. The prayer made in this petition is only for quashing the impugned order dated 13/01/1987 & 06/03/1987. The learned counsel for the applicant could not show any illegality in the impugned orders, under sub clause (iii) of Section 133 Cr.P.C., the Magistrate can pass conditional order to prevent or to stop the construction of such building. This application has no force and is accordingly dismissed.";