Procedure where existence of public right is denied
AI Assist
Summary
A Magistrate who orders removal of an obstruction to public use of a way, river, channel or place must ask the person whether they deny any public right over it. If the person denies, the Magistrate must inquire: reliable evidence supporting the denial stays the proceedings until a competent Court decides, otherwise he proceeds. If the person did not deny when asked or denied but gave no reliable evidence, they cannot later deny the right.
Example
Priya puts a gate across a riverside path and the Magistrate orders its removal. When asked, Priya denies any public right to the path but offers no reliable proof. The Magistrate enforces the order and Priya cannot later in the same proceedings deny that the path is a public way.
Bare Act
Enacted text(1) Where an order is made under section 113 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, inquire 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.
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