B.S.YADAV, J. - (1.) THIS is a revision petition against the order dated November 17, 1980 passed by the Sub Divisional Magistrate Ballabgarh.
(2.) THE brief facts, leading to this petition are that the present petitioner Lal Chand had filed an application under section 133 of the Code of Criminal Procedure, 1973 in the said Court. In that application he had stated that there was an 8 feet wide thorough-fare on the Northern side of his Haveli, and the respondents had blocked it by constructing a new wall. Vide impugned order, the Sub Divisional Magistrate after making an enquiry, held that there was no thoroughfare, as alleged by the petitioner. The learned counsel for the petitioner has raised only two points in this Court; the first was that the learned Sub Divisional Magistrate has not complied with the provisions of section 137 of the Code of Criminal Procedure and the second was that the learned Court inspected the record of the Tehsildar Sales, Hissar without bringing the relevant record on the file and the parties to examine it. I am of opinion that both the objections have force. I will take these grounds in seriatim. On receipt of the application, the learned trial Court issued a conditional order under section 133 of the Code of Criminal Procedure (for short the Code). On appearance, the contesting respondents filed a reply to the effect that they had constructed their house in their own plot allotted to them by the Rehabilitation Department. They denied the allegation of the petitioner that there was any thoroughfare as alleged by him. It appears that after the reply was filed, the learned trial Court proceeded to hold an enquiry if there was any thoroughfare, as alleged by the petitioner and gave a finding to the effect that there was none. He dismissed the petitioner's application. The procedure adopted by the learned trial Court was in clear violation of section 137 of the Code which reads as under :- "137(1). Where an order is made under Section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so the Magistrate shall, before proceeding under Section 138 inquiry into the matter. (2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Court; and, if he finds that there is no such evidence, he shall proceed as laid down in Section 138. (3) A person who has, on being questioned by the Magistrate under sub-section (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial." When, after holding an enquiry, the learned Magistrate had come to the conclusion, that there was reliable evidence in support of the denial by the respondents, he should have stayed the proceedings as required by sub-section (2) of the above section till that matter had been decided by a competent Court.
(3.) THE other ground has also force. The order of the learned Magistrate clearly shows that he had examined the record produced by the representative of the Tehsildar (Sales), Gurgaon and held that on seeing those records, it was proved that there was no thoroughfare towards North of the applicant's Haveli. The petitioner was not given any chance to examine those records or to show from those records of his contention was correct. If there was any reliable document in that record, the learned Magistrate ought to have got it proved on the file and should have afforded another opportunity to the petitioner to lead evidence to rebut the same.;