The court upheld the dismissal of a petition regarding obstruction on a public road, finding no evidence of such a road and affirming the Additional District Magistrate's jurisdiction.

JUDGMENT AND ORDER :

MITALI THAKURIA, J.

Heard Mr. A. K. Sharma, learned counsel for the petitioner. Also heard Mr. M. K. Choudhury, learned Senior Counsel assisted by Mr. M. Sarma, learned counsel for the respondent No. 1 and Ms. S. H. Bora, learned Additional Public Prosecutor for the State respondent No. 2.

2. This is an application under Section 438 read with Section 442 of BNSS, 2023 challenging the legality and validity of impugned order dated 23.08.2024, passed by the learned Additional District Magistrate, Tinsukia in Case No. 49/2022, whereby the case was dismissed which was filed by the present petitioner.

3. The case of the petitioner, in brief, is that he preferred a petition under Section 133 Cr.P.C. on 18.02.2022 before the learned Sub-Divisional Magistrate, Margherita stating inter alia that he has been possessing a plot of land measuring 1 Katha 10 Lecha by the side of a pucca Bye Lane, which is a public road, and he has been possessing the said plot of land since 10.01.2021. But, 2 (two) months prior to lodging of the said proceeding under Section 133 Cr.P.C., the respondent herein forcibly erected a bamboo gate at the entrance/entry point of the said public Bye Lane from the main Segunbari-Makumkilla Road and thereby illegally created a blockage/obstruction resulting nuisance to general public including the present petitioner. The petitioner as well as his family members and the workers used to go to the said plot of land by using the Bye Lane without any objection and obstructions from any corner till the opposite party had blocked the road by putting a bamboo gate in the entry point of the bye lane preventing the petitioner and others from using the bye lane for their ingress and egress. It is also stated that the said Bye Lane is a public road which was constructed by the Government of Assam out of public fund and thus the respondent had no right to cause any short of obstructions in the user of the said public Bye Lane by the public in general including the present petitioner.

4. It is further contended that prior to lodging of the said case, the petitioner requested the respondent to remove the said blockade, but instead of removing the said blockade, the respondent warned the petitioner to refrain from using the said Bye Lane and for which, the petitioner had to approach the learned Sub-Divisional Magistrate, Margherita for drawing up a proceeding under Section 133 Cr.P.C. directing the respondent to remove the blockade from the said Bye Lane for the use of general public. The said petition under Section 133 Cr.P.C. was registered as Case No. 02/2022 and it was made over to the Executive Magistrate for disposal. But, the Executive Magistrate had no jurisdiction to pass any order under Section 133 Cr.P.C. and finally, on the basis of the prayer of the petitioner, it was transferred to the Court of learned Additional District Magistrate, Tinsukia, which was renumbered as Case No. 49/2022, and thereafter, the learned Additional District Magistrate, Tinsukia, on being satisfied considering the urgency of the matter, drawn up a proceeding under Section 133 Cr.P.C. vide Order dated 13.06.2022 and directed the opposite party/respondent herein to remove the blockade/obstructions put by him on the entrance point of the said Bye Lane positively by 20.06.2022 or to appear before the Court on 21.06.2022 at about 1.00 a.m. to file objection, if any, and also to show cause as to why the order should not be made absolute and issued notice accordingly. The notice was duly served on the respondent within time, but in spite of the said Conditional Order dated 13.06.2022, the respondent did not remove the blockade/obstructions.

5. Thereafter, the respondent appeared before the Court of learned Additional District Magistrate, Tinsukia and admitted the construction of the said Bye Lane by PWD but at the same time denied that the Bye Lane is a public land and also sought for time to file objection. However, instead of submitting t