J.J. MUNIR, J.

1. This Criminal Misc. Writ Petition under Article 226 of the Constitution has been filed by the petitioner asking this Court to issue a writ, order or direction in the nature of mandamus to the Sub-Divisional Magistrate, Machhali Shahar, Jaunpur, respondent no.3 to enforce his order absolute, dated 31.12.2016 passed under Section 133 Cr.P.C. by requiring him to do that in pending proceedings under Section 141 Cr.P.C.

2. Heard Sri Raj Kumar Tripathi, learned counsel for the petitioner, Sri S.K. Pal, learned Government Advocate assisted by Sri Indrajeet Singh Yadav, learned Additional Government Advocate.

3. A short background of facts that brought the petitioner to this Court are that the petitioner is a resident of Village & Post Sarai Bhogi, Police Station Surajganj, Pargana Gadawara, Tehsil Machhali Shahar, District Jaunpur. He claims to be a law abiding citizen. Though not pleaded specifically by the petitioner, what emerges is that he is the Bhumidhar of Khasra no.133, admeasuring 0.028 hectares, to the southern side of which there is a public road maintained by the Public Works Department, located in Khasra no.164. He claimed that respondents nos.5 to 7 have illegally encroached land of Khasra no.164, that is a public road, entered in the revenue records as Pakki Sadak, by constructing pakka houses over land of Khasra no.164. The extent of encroachment of the public road, thus made in Khasra no.164, was indicated to be one room constructed by respondent no.5, Shailendra Kumar Singh, one room by respondent no.6, Kewala Yadav and two rooms, one large sized, and, another small, by respondent no.7, Mahendra Yadav. It was claimed that between his land in Khasra no.133 and the public road in Khasra no.164, there was no other Khasra number(s), wherein the said respondents might have some right, title or interest, authorizing them to erect the offending constructions.

4. The petitioner, with the aforesaid case, moved the Sub-Divisional Magistrate, Machhali Shahar, Jaunpur through an application under Section 133 Cr.P.C., giving rise to Case no. T201614360315180, Kamlesh Soni vs. Shailendra Kumar and others, seeking removal of the aforesaid constructions as an unlawful obstruction from a public road. The aforesaid application was filed by the petitioner on 18.06.2015 to the Magistrate. It appears that initially the said application, though invoking jurisdiction of the Magistrate under Section 133(1) Cr.P.C. was dealt with on the administrative side, where some enquiries were ordered to be made by the Revenue Inspector. The Revenue Inspector submitted a report dated 07.07.2015 reporting that Khasra no.164(M)/ 0.155 hectare, situate at Village Sarai Bhogi, was recorded as main road in the revenue records (it has later emerged that the correct Khasra number is 164, not minjumla, and, the area is 0.255 hectare, not 0.155). It was also reported that the petitioner had his holding in Khasra no.133 admeasuring 0.028 hectare to the north of Khasra no.164. It was further said in the report under reference, that between Khasra no.133, and, Khasra no.164, to the south of Khasra no.133, respondent nos.5, 6 & 7 have constructed pucca rooms, whereas there is no land available between the two Khasra numbers; the constructions were reported to be an encroachment.

5. It appears that since, the constructions were found to be an encroachment over the land recorded as a road, the maintenance of which vests in the PWD, the Sub-Divisional Magistrate instead of proceeding in the matter further in accordance with the provisions of Section 133 Cr.P.C., chose to take further administrative recourse.

He apprised the officials of the PWD about the encroachment, and, left it to them to take appropriate steps in the matter, may be under the U.P. Roadside Control Act. Whether proceedings under the last mentioned Act were drawn, is neither the concern of this Court or otherwise relevant here. But, it is discernible that no action was, until t