JUDGMENT 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. 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 or local authority for disposal to individuals. 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 or local authority for disposal to individuals. Any act that causes obstruction of public place as counter distinguished from the public property, may amount to public nuisance, but tie same act in respect of latter may amount to trespass or Eisner it. to other remedies, but certainly will not come within the purview of public nuisance. 8. For the purpose it will be relevant to have a look at the provisions. The relevant extract of Section 133 Cr PC reads as under:- "Conditional order for removal of Nuisance. - (1) Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and 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; or ............ ............... ..................... 9. The aforesaid provision shows that it is the unlawful obstruction or nuisance on 'public place' or on any way, river or channel which is or may be used by public is actionable. Word 'public place' has not been defined under the Criminal Procedure Code. But section itself gives the clue to its meaning It is only in respect of a place, way river or channel which' 'is used' or 'may to used' by Public' that conies within the ambit of the provisions. The essential pre-condition for a place being 'public place' is that it must be used by or may be used by public That is to say it must be open to public access, by right, permission or usage. The ownership is not tie criteria. The explanation to Section 133 which reads as under also does not detract from this portion. "A public place" includes &so property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes." 10. The ownership is not tie criteria. The explanation to Section 133 which reads as under also does not detract from this portion. "A public place" includes &so property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes." 10. The explanation does not take away the essential condition of a public nuisance envisaged under section 3:(1)(a), to be unlawful obstruction of a place which is used or may be used by public. It is only of clarification nature and rot for expanding the scope, of main provision. A State property is a 'public place' for the purpose of section 133(1)(a) only if it is being used or may be used by public. The fact that explanation also included tie camping grounds, and grounds left open for sanitary or recreation purposes in its inclusive definition only emphasises the essential grave-man of conditions to invoke section 132(1)(a) in respect of a 'place used by public'. Else it was not at all necessary to have elaborated if any Govt. property were to come within the ambit of public place irrespective of its use by public. 11. I am fortified in above view by decision of other High Courts as well. Reference in Ibis connection may be made to Ram Singh v. State through Nazul, Improvement Trust, 1957 Allahabad Journal 592 , wherein the court observed as under : ''In order to bring the case within the purview of section 133 Cr. PC the prosecution had to prove that the land in question is either a public way or a public place. The prosecution does not appear to have led any evidence on the point. The prosecution was content with the proof that, this is Government land. But encroachment on Govt. land may not suffice for taking proceedings under section 133, Cr PC. It must be shown that the public is interested in the land as indicated in section 133 Cr PC. It does not appear that the land in suit is a public way. Nor has it been shown that the public has any particular interest in this strip of land lying between the public road and the river." 12. Reference may also be made to Chatrpati Shivaji Cooperative Housing Society Ltd. v. The State of Maharashtra (1968) 78 Bombay Law Reporter 588 wherein the court said. Nor has it been shown that the public has any particular interest in this strip of land lying between the public road and the river." 12. Reference may also be made to Chatrpati Shivaji Cooperative Housing Society Ltd. v. The State of Maharashtra (1968) 78 Bombay Law Reporter 588 wherein the court said. "A plain reading of the first para shows that the power is exercisable if there is an lawful obstruction or a nuisance (1) on anyway, river, or channel which is lawfully used by the public, (2) if there is any lawful obstruction or nuisance in any public place. The working clearly postulates that the obstruction or nuisance is on anyway, river or channel which is used by the public. This means that the public must have a right or way which is being obstructed or on which nuisance is made. Or it must he a public place where any of these things is done. ............... ................ ................. ....... Even assuming that it is the property of the Government, it must be a public place or that the public must have a right to use it, which is not so. The first para. of s. 133 does not apply." 13. Further reference may also be made to Rangi Sah v. B.N.W. Railway Co. AIR 1923 Patna 540 . wherein their Lordships held as under :? "The obstruction to which S. 133 is applicable is ''An unlawful obstruction in any way which is or may be lawfully used by the public or in any public place. There is no warrant for the view that railway land is necessarily a public place especially railway land which as in this instance is outside the railway fencing at a railway station. There is indeed a finding of fact that the petitioner has encroached on the railway land left outside the railway fencing but there is no finding that the land encroached upon is in a way or that if it is in a way, it is on one which is or may be lawfully used by the public. 14. In this connection it may also be noticed that Madras High Court has opined even before the explanation was inserted in old code, that a State property left designed unoccupied for the sanitary or recreation purposes was a public place. 14. In this connection it may also be noticed that Madras High Court has opined even before the explanation was inserted in old code, that a State property left designed unoccupied for the sanitary or recreation purposes was a public place. The explanation was therefore incorporated to give legislative sanction to said decision acknowledging the true effect of meaning of public place. 15. The term public place has relation to user of place by public as distinguished from mere ownership of State is further demonstrable form definition of public place given in other statutes manifesting legislative intent in this regard. 16. In Cantonment Act, 1924, Section 2(xxxi) defines public place as under. "Public place means any place which is open to use and enjoyment of the public whether it is actually used or enjoyed by the public or not " 17. In Sec. (24) of the Motor Vehicles Act 1939 or for that matter Section 2 (34) of Motor Vehicles Act, 1988 the public Place has been defined as under:- " Public place means a road, street, way or other places whether a thoroughfare or not to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage." 18. In Section 2(b) of Suppression of Immoral Traffic in Women and Girls Act 1956 the term public place has been defined as under:- "Any place intended for use by or accessible to the public. The term include a public conveyance." 19. Apart from these statutory definition at common law in England the term public way his been interpreted in the same way. In R. v. Kane and others 1965. All England Law Reports 709 it was stated:- "At common law, " a public place" is a place to which the public can, and do, have access." Thus in my view a State property by itself cannot be termed as public place unless it is used or it may be used by public as such. 20. No doubt over a public road every person has right to pass and repass as many as time as one wants and is a public place. Unauthorised obstruction of such place do amount to public nuisance. However the Learned District Judge has reasoned that no claim about the disputed property to be a private property vesting in the local authority. No doubt over a public road every person has right to pass and repass as many as time as one wants and is a public place. Unauthorised obstruction of such place do amount to public nuisance. However the Learned District Judge has reasoned that no claim about the disputed property to be a private property vesting in the local authority. It is only on that assumption, it has further held that it is part of the public road. This reasoning is apparently unfounded. The mere fact that property vests in local authority or the State does not make it necessarily a part of public road or public place, unless it is further establishment that it is being used or may be used by public. Even the first assumption is of doubtful validity. These are question of fact and has to be established by leading evidence and cannot be a matter of presumption. Therefore in my opinion the order cannot be sustained. 21. The petition is allowed. The order dated 30-8-93 passed by Additional Sessions Judge 1 Jodhpur as well as order passed by Addl. District Magistrate (Civil) Jodhpur on 12-3-93 are set aside. Case is sent back to Additional District Magistrate (City) Johdpur for deciding the application filed by Sita Ram afresh in accordance with law.Petition allowed. *******