A State property by itself cannot be termed as a public place unless it is used or it may be used by the public as such.

1. - This petition under section 482 is directed against the order dated 30-8-93 passed by Addl. Sessions Judge. No. 1 Jodhpur.

2. The brief facts giving rise to present petitioner are that on 19-6.91 Sita Ram respondent filed a complaint against petition only Omprakash that Omprakash has raised construction on road in Jalorian Ka Bas On account of this act of the petitioner road has been blocked and obstruction is caused in the free passage of air and light of the neighbouring residents which amounts to public nuisance. Therefore, it was prayed, that the obstruction from the public road be removed which is causing public nuisance. On 20.6.91 Om prakash filed reply taking preliminary objections and denied the allegations made in the complaint. He denied that he has made any encroachment on the road. He stated that he is carrying out repairing work within existing boundary of his House and the place on which petitioner is alleged to have encroached is in his possession for more than 30 years. The house of the petitioner situated at the end of the road where the road closes.

3. The Additional District Magistrate Jodhpur after taking into consideration the material came to the conclusion that except the complainant nobody else has any objection to the alleged encroachment made by the present petitioner He concluded that it does not cause any public nuisance and is a case of private nuisance for which remedy of the complainant is to file civil suit. On these premise he held that case does not fall within the purview of section 133 Cr.PC and rejected the complaint.

4. On revision the Addl. Sessions Judge reasoned that the place in question is not claimed to be a private property by the complainant and accused has not been able to establish as his ownership, and therefore it must be deemed to be vesting in the Local authority. From this conclusion he jumped to further conclusion without referring to the controversy raised by the parties and other evidence that place over which the encroachment is alleged to have been made is the part of the public road. On this premise it held that obstruction of public road amounts to public nuisance and ordered to remove the same.

5. Learned counsel for the petitioner contends that apart from committing procedural irregularities in proceedings under section 133 Cr.PC which are required to be followed before ordering removal of construction/ obstruction, the Addl. Session Judge has erred in holding that the obstruction being raised by the petitioner on a public road.

6. Learned counsel for the respondent on the other hand urged that from the evidence it is established that the place in question is a part of public road and therefore any unauthorised obstruction of it, is public nuisance.

7. Having considered the rival contentions. I am of the opinion that both the courts below have misdirected themselves in law in dealing with the case at hand. The Addl. District Magistrate has not at all considered the question whether the place over which encroachment is made by causing obstruction is part of a public road or is some other land. Without addressing oneself to this issue, the question whether the act of the petitioner properly falls within the purview of public nuisance or private nuisance could not have been decided. Likewise Learned Addl. Session Judge has ignored the definition of public nuisance and has not understood distinction between public place & public property. Every public property is not a public place. Every property vesting in the State may be a public property. But every public property is not a public place. A public place means a place where every member of public has free access. That may not so with every public property. Like a public park or a road are places where every men of public has right to be there and use it. But the same cannot be said of a building owned by State meant for residence of its employees. Same is the care vvit13 open piece of lard vesting in State o