Section 133 of the Code of Criminal Procedure, 1973 is not intended for the removal of long-standing obstructions but for unlawful obstructions lately built on a public place.

S.S.Grewal, J.

1. This petition under Sec.482 of the Code of Criminal Procedure 1973 (hereinafter referred to as the Code) relates to quashment of impugned order dated 12th of August, 1988 passed by the Sub Divisional Magistrate, Garhsbankar under Sec.133 of the Code, (Annexure P1) as well as the impugned order passed in revision by Additional Sessions Judge, Hoshiarpur dated 14th of February 1989, (Annexure P2 ).

2. In brief the facts relevant for the disposal of this case are that Malkiat Chand and others filed an application under Sec.133 of the Code against the present petitioners that the latter had caused obstruction in the passage leading to their house and prayed for the removal of the said obstruction. The Sub Divisional Magistrate Garhshankar secured the presence of the opposite party which filed written statement. The learned Sub Divisional Magistrate, vide impugned order Annexure P1 made his preliminary order dated 13th of November 1987 absolute, directing the respondents to remove the obstruction from the passage withia 15 days. Aggrieved against the order of the Sub Divisional Magistrate dated 12th of August 1988, the present petitioners filed revision which, too, was dismissed by the Additional Sessions Judge Hoshiarpur vide impugned order dated 14th of February 1989 Annexure P 2.

3. Counsel for the parties were heard.

4. On behalf of the petitioners, it was mainly contended that Sec.133 of the Code is not intended for the removal of long standing obstructions but for unlawful obstructions lately built on public place, and, that the said provisions cannot be allowed to be used as substitute for litigation in civil Courts. Reliance in this respect has rightly been placed on Single Bench Authority of this court in Rattan Singh V/s. Mohinder Singh, 1973 Ch. L. R.278. wherein reliance was placed on the authority in Emperor V/s. Tulsi Ram, A. I. R.1936 Lah.523. and it was as under : "section 133 is not intended for long-standing obstruction but for an unlawful obstruction lately built in a public place. It is only on proof of urgency or imminent danger to the public that action under Sec.133 can be taken and the provisions of Sec.133 should not be allowed to be used as substitute for litigation in Civil Courts. Chapter 10 of the Code deals with public nuisances and provides a speedy and summary method for dealing with them in cases of great emergency and where there is imminent danger to public interest. Where an obstruction has been allowed to stand in a public place without objection for many years the fact indicates there is no such emergency or iminent danger to the public interest. The existence of a longstanding obstruction cannot therefore without proof of something having recently happened be considered to be a public nuisance".

5. Reliance was further placed in Gian Singh and Ors. V/s. The State of Punjab , (1970) 72 P. L. R.368. Baisakhi Ram and Ors. V/s. Emperor , A. I. R.1930 Lah.361 (1 ). and Khair Din and Ors. V/s. Wasan Singh , A. I. R.1935 Lah.28. In all these rulings it was held that if an obstruction is continuing for more than one year then the application under Sec.133, Criminal Procedure Code, must be dismissed.

6. According to the statements of A. W.1 and A. W.2 produced by the present respondent before the Sub Divisional Magistrate, the encroachment over the land in dispute had already existed for two or three years before application for initiation of proceedings under Sec.133 of the Code was moved on 30-6-1987. The testimony of Kartar Chand R. W.1 to the effect that the Block Development and Panchayat Officer had summoned Darshan Ram Sarpancb and the witness in this office on 9th of September, 1986 and they appeared in the said office, without anything more would not be sufficient to hold, that no such encroachment existed for more than two years without any objecsion.

7. The Single Bench Authority of Rajasthan High Court in Chhitar and other V/s. Chhoga and Ors. , 1974 Cr. L. J.1230.