Unlawful obstruction of public ways must be removed under Section 133 Cr.P.C., regardless of whether the obstruction is complete.

JUDGMENT :

Rajnish Kumar, J.

1. Heard Shri Sanjay Tripathi, Advocate holding brief of Shri Anil Kumar Tripathi, learned counsel for the petitioners in Criminal Misc. Writ Petition No.- 15379 of 2019 and learned counsel for the petitioners in Criminal Misc. Writ Petition No.- 171721 of 2019, Shri Rajesh Kumar Shukla, learned State Counsel and Shri Santosh Kumar Gupta, learned counsel for the private respondent in both the petitions.

2. Criminal Misc. Writ Petition No. 15379 of 2019 has been filed assailing the order dated 30.11.2018 passed in Case No. 80 under Section 133 of Code of Criminal Procedure (hereinafter referred as Cr.P.C.) by Sub-Divisional Magistrate, Tarabganj, District-Gonda and the judgment and order dated 21.05.2019 passed in Criminal Revision No. 318 of 2018; Rajkishore Ojha (Deceased) substituted by legal heirs Abhimanyu Prasad Ojha and others vs. State of U.P. and another and Criminal Misc. Writ Petition No. 17172 of 2019 has been filed assailing the order dated 30.05.2019 passed by the Sub Divisional Magistrate, Tehsil-Tarabganj, District-Gonda, by means of which he has directed to the In-charge Inspector, Dehat Kotwali, Gonda for compliance of the order dated 30.11.2018 in pursuance of the order dated 21.05.2019 passed by the Session Judge Gonda. Thus, both the petitions have been clubbed together and are being decided by this common judgment and order.

3. Learned counsel for the petitioners submitted that in view of the report submitted by the Tehsildar, Tarabganj, District Gonda, there was no dispute between the petitioners and the private respondent and the public way was not restrained by the petitioners, but without considering it, the learned Sub-Divisional Magistrate passed the impugned order dated 30.11.2018 on the ground that in case in future any construction is raised by the predecessor-in-interest of the petitioners i.e. Rajkishore Ojha, then the public way will be disturbed. Thus, the order has been passed merely on presumption that the public way will be disturbed in future, whereas on the basis of mere presumption that the public may be disturbed in future, the order cannot be passed under Section 133 Cr.P.C. He further submits that during pendency of the revision, the revisional court also passed the impugned judgment and order dated 21.05.2019, without considering the grounds raised by the petitioners. He further submitted that during pendency of the Criminal Misc. Writ Petition No. 15379 of 2019, the order passed by the learned Sub Divisional Magistrate and learned Sessions Judge, the Sub-Divisional Magistrate, Tarabganj, District- Gonda directed to the In-charge Inspector for compliance of the order passed by him, whereas the same could not have been issued, therefore Criminal Misc. Writ Petition No. 17172 of 2019 was filed. Thus, the submission is that the impugned judgment and orders are not sustainable in the eyes of law and liable to be set aside by this Court.

4. Per contra, learned counsel for the private respondent in both the petitions submitted that the impugned judgment and orders have rightly been passed in accordance with law after considering the report of the Tehsildar and the evidence on record and the admission of the witnesses of the petitioners that the petitioners had constructed a wall on public land, which was being used as a way, therefore, merely because the report indicates that in case, he constructs further wall in future the public way may be disturbed, it cannot be said that the impugned judgment and orders have been passed merely on presumption of happening in future. Thus, the writ petitions have been filed on misconceived and baseless grounds and the same are liable to be dismissed. He relied on Jagpal Singh and others vs. State of Punjab and others; AIR 2011 SC 1123, judgment and order dated 02.03.2021 passed in Public Interest Litigation (PIL) No. 1474 of 2020; Sri Krishna vs. State of U.P. and 4 others by a co-ordinate Bench of this Court and judgment and ord