BAPNA, J. - (1.) THIS is a reference by the learned Additional District Magistrate, Alwar, dated 3rd October, 1953, in proceedings under sec. 133 of the Code of Criminal Procedure.
(2.) ON complaint by Munshi Lal, the Sub-Divisional Magistrate, Behror, got a preliminary enquiry done through the Tehsildar. ON receiving the report of the Tehsildar, the Sub-Divisional Magistrate passed an orders under sec. 133 of the Code of Criminal Procedure on 22nd January, 1953, that Chhotey Lal and Matadin had encroached upon a public thoroughfare by constructing two shops and Chabutra, and thereby were causing unlawful obstruction to the public way, and they were directed to remove the obstruction by the 28th of January, 1953, and to submit their objections, if they had any, in court. Objections were lodged on the 12th of February, 1953, and the court fixed 19th March, 1953, for evidence. ON that day the opposite parties prayed for adjournment, which was refused, and the learned Sub-Divisional Magistrate took evidence produced by Munshilal and directed that the site be inspected by him. After inspection of the site, he modified his original order by directing demolition of only one of the two shops, which was on the east side and west of the throughfare. Matadin filed a revision before the District Magistrate, which came for decision before the Additional District Magistrate, and the learned Additional District Magistrate has made a reference that the order of the Sub-Divisional Magistrate be set aside, as no opportunity was given to Matadin under sec. 139-A of the Code for leading evidence. The reference is not correct, for sec. 139-A is only applicable where the person to whom a notice has been issued denies the existence of any public right of way. The opposite parties to the petition under sec. 133 had not denied the existence of any public right of way, but had only said that they had made no encroachment, and had made the construction on land which was their own. The court, therefore, had no necessity to make an enquiry as referred to under sec. 139-A, and rightly proceeded to make an enquiry under sec. 137, which is applicable when the party to whom notice is issued appears and shows cause against the order, but does not deny the existence of the public right of way. The learned Sub-Divisional Magistrate also rightly refused adjournment, as the parties were told on an earlier date of hearing to bring their evidence on the 19th of March, and Matadin did not bring his witnesses. The procedure adopted by the trial court was correct, and no interference is called for. The reference is, therefore, rejected. .;