MUHAMMAD YUNUS ALVI Versus MUHAMMAD MALIK

ORDER

The petition is addressed for setting aside the proceedings undertaken in an application under section 133, Criminal Procedure Code, being in derogation to the provisions of section 139‑A, Cr.P.C.

2. Muhammad Yunus Arvi invoked the jurisdiction of trial Magistrate under section 133, Cr.P.C. by seeking a direction against the non -petitioner for removing the alleged nuisance by demolishing the shop of the non‑petitioner, situate in Chechian Bazar it was alleged that the non‑petitioner by making an encroachment on the public path, constructed a shop and thereby caused nuisance to the petitioner as well as the public at large. The trial Magistrate passed preliminary order on August 7, 1984 and issued show‑cause notice to the non‑applicant who in compliance with the order of the Magistrate, appeared on August 13 and filed objections to the application by alleging his own title about the site of construction of his shop. The case was fixed for evidence when the petitioner moved for quashment of the order for evidence, as in his view, on appearance of the non‑applicant in the Court, it was enjoined upon the trial Magistrate to proceed under section 139‑A, Criminal Procedure Code. The learned Sessions Judge declined to accept the plea of the petitioner.

2. Section 139‑A, Cr.P.C. postulates that where an order is made under section 133, Cr.P.C., for preventing obstruction or nuisance, as the case may be the Magistrate shall, on the appearance of the person against whom the order is passed, question him as to whether he denies the existence of any public right in respect of the place in dispute. This shall be done before stepping in into enquiry into the matter under section 137 or section 138, Cr.P.C. The provisions described under subsection (1) of section 139‑A, Cr.P.C. are mandatory The object of this provision appears to be to satisfy in respect of the right of the parties before entering into elaborate inquiry relating to the alleged obstruction or nuisance. The preliminary inquiry under these provisions is equally helpful to dispose of the matter as a whole at an earlier stage, as in case the existence of public right is denied and the denial is proved by tangible evidence, the Magistrate may not proceed further, and direct parties to approach civil Court.

3. In present case, the condition prescribed under subsection (1) of section 139‑A, Cr.P.C. does not seem to have been fulfilled. Mr. Hidayatullah Mirza, the learned counsel for the non‑petitioner argued that in his objections, the non‑petitioner denied the allegation of nuisance or obstruction over any public place. According to the learned counsel, this denial was sufficient to fulfil the aforesaid condition. The contention is not sustainable as the objections filed by the non‑petitioner are of character relating to the general allegation of causing obstruction general character by raising construction on part of the public path in dispute. The objections of this nature do not strictly comply with the mandatory provisions of law. In an identical situation in Chuni Lal's case A I R 1965 Pb. 340 where, on appearance in the Court, non‑petitioner filed written objections denying the existence of public right of way and passage of water and the Magistrate ignoring the provisions of section 139‑A, Cr.P.C. proceeded to record evidence of the parties and passed. a final order, the proceedings were set aside as, according to the learned Judge of the High Court Punjab (India), the Magistrate was not authorised to usurp jurisdiction to decide the question of public right by ignoring the provisions of section.139‑A, Cr.P.C. The relevant observations are reproduced:‑

"The parties had appeared in the Court in pursuance of an order under section 123 and the opposite party had filed written objections denying the existence of public, right of way and passage of water through this property. The Magistrate, ignoring the provisions of section 139‑A, proceeded to record the evidence of the parties and passed final orders under section 140: Held the Magistrate cannot by ignoring the provisions of section 139‑A usurp jurisdiction to decide the question of public right when there is prima facie evidence in support of its denial. The illegality committed by the Magistrate flouting the mandatory provisions of section 139‑A cannot be cured by recourse to section 537 of the Code. It is only where the Magistrate is of the opinion that there is no reliable evidence in support of the public right that he is at liberty to proceed with the case under section 137 or 138 of the Code and decide the matter without reference to a civil Court."

The importance of the mandatory adherence to the procedure was emphasised as:‑-

"Where the law prescribes that a particular thing has to be done in a particular manner, the procedure laid down must be observed, otherwise it will encourage violation of the mandatory provision and leave it to the good sense or the will or whim of the authority concerned to observe or not to observe the procedure prescribed by law."

4. The case is at the initial stage as the evidence of the parties is yet to be recorded. The setting aside of the order for evidence, by reverting to the position by putting question to the non‑petitioner to satisfy as to whether he denies the existence of any public right in respect of the way in dispute, does not prejudice the interest of other party nor it tantamount to any burden. The petition is, therefore, allowed in the manner that irrespective of the objections filed by the non‑petitioner, the trial Magistrate shall question Muhammad Malik, non‑petitioner, as to whether he denies the existence of public right over the land covered by the construction of his shop or part of it In the light of the allegation made by the petitioner. In case Muhammad Malik denies the existence of such right, he shall be asked to lead evidence in support of such denial. On determining the proposition in the light of the provisions of section 139‑A, Cr.P.C. the Magistrate shall dispose of the matter by passing a final order under section 140 of the Criminal Procedure Code.

M. Y. H. Petition allowed.