The Executive Magistrate must issue a conditional order under Section 133 Cr.P.C. for encroachments on public passages, failing which the proceedings are invalid.

Judgment

Mr. Sureshwar Thakur, J.

CM-20500-CWP-2023

The application is allowed as prayed for. Annexure P-3 is taken on record.

CWP No. 26983 of 2023

1. The present petitioner has moved Annexure P-2 before the Deputy Commissioner, Fazilka, District Fazilka. The subject of the said annexure, is that, certain illegal encroachments become made upon a street occurring within the abadi deh. In the said annexure, they have named the persons, who have made encroachments, upon, the street or a rasta, rather occurring within the abadi deh.

2. The said open place or a passage, existing within the abadi deh, is not contested by the learned counsels appearing, before this Court, to make it thus fall within the definition of shamlat deh. Therefore, if any proven encroachments are made thereons, resultantly through a lawful order, being made by the competent authority concerned, thus the said encroachments, as made upon any passage existing within the abadi deh, rather are required to be removed.

3. Since no action has been drawn on the said annexure, therefore, the learned counsel for the petitioners prays that lawful action be drawn against the errants concerned, by the Deputy Commissioner, Fazilka, to whom Annexure P-2 becomes addressed.

4. Though, the said made prayer before this Court, becomes not amenable for becoming accepted. The reason being that the present petitioners had earlier accessed the learned Executive Magistrate concerned, through theirs filing a petition under the provisions of Section 133 Cr.P.C. On the said petition, an order Annexure P-3, became passed. The learned Sub Divisional Magistrate, Jalalabad after making hearings on the said petition, besides after receiving evidence, thus proceeded to order for the removal of the encroachments, if any, as became made, upon, the gair mumkin passage existing within the abadi deh.

5. Though, in the wake of the above, this Court prima facie may not be led to make any direction, upon the BDPO concerned, or upon the Sarpanch of the Gram Panchayat concerned, to institute a petition, cast under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short ‘the Act of 1961’), seeking thereby the eviction of the encroachers concerned, viz-a-viz the open passage (supra).

6. Be that as it may, the reason for making the above conclusion becomes sparked from the factum, that a reading of the provisions, as embodied in clause (a) of sub-Section (1) of Section 133 Cr.P.C., provisions whereof become extracted hereinafter, unfolds the factum, that any unlawful obstruction or nuisance, being amenable to become removed by a conditional order, becoming made by the Sub Divisional Magistrate concerned, but yet only in the event of such obstruction or nuisance being made upon any public place or from any way.

“Conditional order for removal of nuisance.

(i) Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this of behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers-

(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public”

7. Therefore, but obviously since the provisions (supra), as occur in the Act of 1961 are complementary, besides are supplementary to the provisions (supra), as engrafted in the Cr.P.C. Therefore, though prima facie, the above made order by the learned Executive Magistrate concerned, was required to be galvanized into the fullest action. Resultantly, as stated (supra), prima facie not mandamus is required to be made upon the BDPO concerned, to institute the petition (supra) before the Collector contemplated under the Act of 1961.

8. Nonetheless, the infirmity in the above order is comprised in the factum, that the jurisdiction invested in the SDM concerned, is a jurisdiction, which empowers him