The petitioner, being aggrieved by the order dated 20.7.2012 passed in M.R. Case No. 118 of 2011 by the learned Sub-Divisional Magistrate, Sadar, Madhubani, in purported exercise of his powers under Section 133 of the Code of Criminal Procedure, 1973 ( for short ‘Cr.P.C.’), directing him to remove by 6.8.2012 his building and other structures from allegedly encroached portion of Plot No.84, a public road, situate in Mohalla Tilak Chowk in Madhubani Town, has preferred the present revision application under Sections 397 and 401 Cr.P.C. before this Court, questioning the correctness, legality and propriety of the impugned order.

2. From the pleadings of the parties, it appears that the opposite party no.4, namely, Birendra Raut filed a petition before the learned Sub-Divisional Magistrate, Sadar, Madhubani, with a prayer to initiate a proceeding under Section 133 Cr.P.C. for removal of alleged encroachment from the govt. land made by the preset petitioner. It was claimed that the petitioner has made encroachment over the govt. land adjacent to public road to the extent of 15 feet from southern side, and by constructing 8 shops thereon, he has let out the same and is earning huge money per month towards rent. On the basis of the aforesaid petition, notice was issued to the petitioner on 3.12.2010 (Annexure-2) asking him to show cause as to why steps be not taken for removal of encroachment from the public land. The petitioner claims to have filed his show cause on 28.1.2011(Annexure-3) denying the allegation of any encroachment made by him on any public road or Govt. land.

3. It appears that on the basis of materials produced by the opposite party no.4 and after considering the show cause filed on behalf of the petitioner, the learned Magistrate decided to initiate a proceeding under Section 133 Cr.P.C. with respect to the lands bearing Khesra Nos. 83 and 84 situate at Mohalla Tilak Chowk, Ward No.8 in the Town of Madhubani. In the aforesaid proceeding under Section 133 Cr.P.C., opposite party no.4 was the first party, whereas the present petitioner was made 2nd party.

4. By an order dated 31.3.2011, the learned Sub-Divisional Magistrate, Sadar, Madhubani, issued a conditional order in terms of Section 133(1) Cr.P.C. directing the petitioner to remove nuisance from the aforesaid land of Khesra Nos. 83 and 84 and he was asked to show cause on 16.4.2011 as to why the rule should not be made absolute. The notice dated 31.3.2011 issued by the learned Sub-Divisional Magistrate, Sadar, Madhubani, has been brought on record as Annexure-4.

5. It is the case of the petitioner that in response to the aforesaid show cause notice vide Annexure-4, he filed his show cause and asserted that the land bearing survey plot no. 83 is the raiyati land, and it is neither a public road nor a Govt. land. It was pleaded that notice issued by the learned Sub-Divisional Magistrate was quite vague. No authentic official report has been shown about the alleged encroachment made by the petitioner over a portion of plot no. 84. It was also claimed that the land of survey plot no. 84 belongs to Madhubani Municipality. According to the petitioner his son Prabhat Ranjan has taken 4 dhurs of land from Madhubani Nagar Parishad on rent of Rs. 300/- per month and he has deposited Rs. 10,000/-( ten thousand) towards security deposits.

6. In the present proceeding, opposite party no.4 has suo motu appeared before this Court, and has filed his counter affidavit resisting the prayer made on behalf of the petitioner. It has been pleaded on behalf of the opposite party no.4 that the petitioner has unlawfully obstructed the public road over plot no. 84 by constructing his shops over it, as a result of which there is obstruction in free flow of traffic, and it has caused nuisance. According to opposite party no.4, the Circle Officer, Rahika, has also submitted his report dated 29.4.2011(Annexure-A to the counter affidavit) to the learned Sub-Divisional Magistrat