P.N.Bakshi - (1.) DR. Brij Basi moved an application under section 133 CrPC against Sukh Lal and others for removal of the unauthorised constructions (temporary shops with bamboo walls) alleged to have been made by them which obstructed the public way in mohalla Ramnagar, Orai town. A report was called by the Magistrate. A conditional order was passed and notices were issued on 30th March, 72 requiring Sukh Lal and others to remove the constructions or to show cause. In compliance thereto, the opposite parties filed their objections and they denied the public-rights. It was claimed that the disputed constructions had been in existence for about 30 years and no objection was ever raised earlier. It is also denied that the land belonged to the Public Works Department (P.W.D.). The Magistrate embarked upon an inquiry under section 133 (a) CrPC. He was of the view that the objections filed by the opp. parties were not well-founded. He, thereafter proceeded under section 137 CrPC. The evidence was recorded. On a consideration thereof, the Magistrate was of the opinion that the land in suit over which the shops had been built was the property of the Public Works Department and that the said 'constructions had caused obstruction and nuisance to the smooth passage of public vehicles and pedestrians. In view of this finding, he made the conditional order dated 30th March, 72, absolute. The Magistrate, thereafter passed an order on 12th November, 1973, directing the opp. parties to remove the obstructions or to expose themselves to penalty under section 188 CrPC and 140 (2) CrPC. at appears that on 12th April, 1972, an application was filed by the opp. parties for the appointment of a jury under section 135 CrPC. That application has remained undisposed off even till today. Aggrieved by the order of the Magistrate dated 12th November, 73, a revision was filed before 'the Sessions Judge, Orai, who has made the instant reference to this court.
(2.) I have heard the learned counsel for the parties, and have also perused the referring order. The first ground on which the reference has been made is that when an application for the appointment of jury was made on 12th April, 1972, under section 135 CrPC by the opp. parties, it was the mandatory duty of the Magistrate to appoint a jury. In my opinion, the Sessions Judge has not correctly interpreted the law in this connection. Section 135 CrPC runs an follows :- "135. The person against whom such order is made shall : (a) perform, within the time (and in the manner) specified in the order, the act directed thereby ; or (b) appear in accordance with such order and either show cause against the same, or apply to the Magistrate by whom it was made to appoint a jury to try whether the same is reasonable and proper." A perusal of Section 135 (b) indicates that a party against whom a conditional order has been passed under Section 133, has a right either to show cause against the same or to apply to the Magistrate to appoint a jury. Both these remedies are exclusive of each other. After the dismissal of the objection by the parties, he has no right to apply afresh for the appointment of a jury. The option has to be exercised by him at the time when the conditional order has been served upon him. He; must make up his mind, whether he; would file objection against the so called notice or whether he would request the court for the appointment of a jury to try the matter- It has already been held by a learned single Judge of this court in a decision reported in Chandra Pal v. State, 1953 AWR 462= 1954 AIR All. 14 that "u/Sec. 138 a Magistrate would appoint a jury after the party, against whom a notice under Section 133 CrPC, had been issued appears and asks for a jury. There is no provisions that the Magistrate would appoint a jury even after he has come to the conclusion that there was no reliable evidence in support of the contention that there was no public way, after an inquiry." I am in respectful agreement with the view expressed by the learned single Judge. In my opinion, therefore, this ground of reference is not legally tenable. The second ground on which the reference has been made is that the Magistrate should first decide the question whether obstruction which is alleged to have been caused by the opposite parties is a recent one or long-standing. The case of the opp. parties was that the shops in question had been in existence since the last 30 years. From a perusal of the order of the Magistrate, I do not find any finding, recorded with respect to the duration of the construction. It is true that under Sec. 133 CrPC there is no specific provision which requires) a Magistrate to give a finding as to the length or duration of the construction. There can also be no doubt that the long duration of the construction alone will not deprive a criminal court from taking action under Section 133 CrPC but this fact cannot be ignored that the summary procedure prescribed under Section 133 CrPC is intended to meet situations of emergency, wherein taking of an immediate action is necessary. If such a situation does not exist and if constructions are long-standing, the proper remedy for the parties is to enforce their rights in a civil court and not to take recourse of the speedy and summary procedure prescribed under Section 133 CrPC. This view has also been expressed earlier by a single Judge of this court in Asharfi v. State, 1964 AWR 244 = AIR 1965 All. 215 in the following words : "A proceeding under Section 133 should be taken in case of emergency where the public shall be put to great inconvenience and shall suffer an irreparable injury if the encroachment or nuisance is not removed at once by adopting the summary procedure contained in Ch. 10 and, therefore, ordinarily no action under Section 133, can be taken where the obstruction or nuisance has been in existence for a long period. However, there is no legal bar to seeking remedy under Section 133 where there exists a genuine emergency to have the encroachment or nuisance removed. Such an action can be taken even though the encroachment or nuisance has been in existence for a reasonably long period. But if the obstruction has been in existence for a long period without any change in the circumstances the removal of such obstruction cannot be said to be urgent and the remedy must be sought in Civil Courts."
(3.) RELYING upon the Allahabad case, the same view has also been expressed by the Himanchal Pradesh High Court in 1973 CrLJ 1375. It has been observed by a single Judge of that court that ".........the remedy under Section 133 is not available where the nuisance is in existence for a long period without any change in the circumstances. The remedy must be sought in a Civil Court." In this view of the matter, I am of the opinion that this reference must be accepted and the case remanded to the Sub-Divisional Magistrate, Orai, for a decision in accordance with law in the light of the observations made by me above. The impugned order of the Magistrate dated 12th November, 73 is hereby quashed. Reference accepted.;