ASHARFI LAL Vs. THE STATE

JUDGEMENT

(1.) THIS is a Criminal Reference by the Additional Sessions Judge of Kanpur with the recommendation that the Magistrates order dated 7-5-1962 directing the applicant, Asharfi Lal, to remove the encroachment made by him on the public path situate in plot No. 342 be removed within ten days failing which he would be liable to penalty provided under S. 188, I.P.C. be set aside. There is no dispute in that the shop of Asharfi Lal stands on the land of Old Moghal Road which is still public land, though it is said on behalf of Asharfi Lal that the land. In front of his shop is not being used as a Rasta since the opening of the New Moghal Road from the evidence on record it appears that Asharfi Lal constructed a Kachha shop sometimes in or about 1950 and pucca constructions were made within a year or two.

(2.) ON the report of the Collector of Kanpur the Sub-Divisional Magistrate of Bhognipur took action under Section 133, Cri. P.C. and under the impugned order confirmed the conditional order and directed Asharfi Lal to remove the encroachment within a period of ten days. This order was challenged in revision before the Sessions Judge who has made the reference on the ground that the constructions made are old and could not be ordered, to be removed in a summary proceeding under Section 133, Cri. P.C. Reliance was placed upon a reported decision of this Court.

(3.) SECTION 133, Cri. P.C. does not by itself lay down any such restriction in the exercise of a jurisdiction, it simply provides that whenever a District Magistrate, a Sub-Divisional Magistrate or a Magistrate of the First Class considers, on receiving a police report or other information and on taking such evidence, if any, as he thinks fit, that any unlawful obstruction or nuisance should be removed from any way, which is or may be lawfully used by the public, or from any public place, he may make a conditional order requiring the person causing such obstruction or nuisance to remove such obstruction or nuisance within a time to be fixed in the order, and if he objects so to do, to appear before him or some other Magistrate of the First or Second Class, and move to have the order set aside or modified. The only restriction imposed by Section 1313, Cri. P.C. is that public way is such which is or which may be lawfully used by the public. With regard to public land there is no such restriction. Courts of law cannot, however, overlook the factor that a proceeding under Section 133, Cri P.C. is of a summary nature, and disputes of title etc., can be properly and finally adjudicated upon by a competent Court and not by a criminal Court. It is for this reason that this Court has laid down that action under Section 133, Cri. P.C. should be taken when there exists urgency for removal of the obstruction or nuisance. If the obstruction has been in existence for a long period and there is no change in circumstances, the removal of the obstruction cannot be said to be urgent and it is often stressed that the State should seek remedy before the civil Court. If the removal of the obstruction was not at one occasion urgent but on the change of circumstances it becomes necessary to have the obstruction removed at once, in other words, an urgency exists, action under Section 133, Cri. P.C. shall be taken even though the obstruction had been in existence for a comparatively long-period.