M.K.Mittal - (1.)-This writ petition has been filed for quashing the order dated 21.6.04 passed by Sub Divisional Magistrate, Lalganj, Azamgarh (Annexure-2) in Case No. 15/11 of 2004 under Section 133, Cr. P.C., whereby he accepted the report of Naib Tehsildar and made the order passed on 4.11.2003 absolute and further directed the Station Officer Mehnajpur for demolition of the illegal construction made on public way and the order dated 8.9.06 passed by Additional Sessions Judge, Court No. 7, Azamgarh, in Criminal Misc. Case No. 41/05 whereby he dismissed the application filed under Section 5 of Limitation Act for condonation of delay in filing the revision against the order dated 21.6.04.
(2.)THE brief facts of the case are that the petitioners and the contesting respondents are residents of the same village and they have their houses adjacent to each other. THE houses of the both parties have been constructed over the abadi land of gaon sabha. THE contesting respondents wanted the path through the abadi land of the petitioners because chak of the petitioners is situate just behind the house of the petitioners. THEre is no chak road or public way in abadi land of the petitioners as well there is no reason or occasion to give a path through abadi land of the petitioners. THE contesting respondent do not like to go to their chak through chak road which has been already made in the consolidation proceedings because it is a long way. Due to this reason, the contesting respondents forcibly wanted to make the path through the abadi land of the petitioners to their chaks and for this purpose they forged and manipulated the grounds and filed a Civil Suit No. 1095/03, Umesh Chandra Tiwari and others v. Diwakar Tiwari and others, in the Court of Civil Judge (J.D.) Haveli, Azamgarh. THE suit is still pending but, since no interim order was passed, the respondents, concealing the pendency of this case, filed a Case No. 15/11 of 2004 under Section 133, Cr. P.C., Vijay Shanker v. Diwakar Tiwari and others, in the Court of Sub-Divisional Magistrate Lalganj, Azamgarh.
According to the respondents the property in dispute in Suit No. 1095/03 and case under Section 133, Cr. P.C., is different. In the proceedings under Section 133, Cr. P.C., the respondents have sought the relief of restraining the petitioners from constructing the wall etc., over the chak road. It is a public path. But in Suit No. 1095/03 the land situate towards west of the petitioners house is in dispute. The respondents claim that the land towards west of their house has settled in them under Section 9 of the Z.A. Act. There is no illegality in the order dated 21.6.04 and the learned Revisional Judge has rightly dismissed the revision as time barred and writ petition is devoid of merits and is liable to be dismissed.

The learned Magistrate called for the report from the concerned official and passed ex parte order dated 21.6.04 directing the Station Officer, Mahnajpur to remove any type of construction raised on the so called chak road.

(3.)THE contention of the learned counsel for petitioners is that there is no chak road at the place as alleged by the respondents and they have not made any construction on the chak road. When the petitioners came to know about this order dated 21.6.04 on 10.5.05, they filed an application for setting aside that order. However, they were also advised to file a criminal revision and they preferred a Criminal Revision No. 41/05 before Additional Sessions Judge and the same has been rejected by order dated 8.9.2006 as time barred.
According to the petitioners when a civil suit was pending in the Court of Civil Judge in respect of the same property in dispute, learned Magistrate should not have passed any order under Section 133, Cr. P.C. The order dated 21.6.04 passed by respondent No. 2 is illegal as no construction has been made on the chak road and there is no question of its removal. The Station Officer, Mehnajpur after enquiring the matter filed a report dated 3.7.04 to the effect that there was no encroachment. The petitioners are in possession over the land where they have made construction prior to the abolition of zamindari and that land has settled in them under Section 9 of the Zamindari Abolition Act. The petitioners are not interfering in the possession of the respondents since there is no chak road. There was no question of any demolition. The respondents concealed the correct fact and obtained the order and that order dated 21.6.04 is liable to be set aside.