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2014 DIGILAW 3057 (ALL)

Ram Kishore v. Additional Session Judge

2014-09-26

ADITYA NATH MITTAL

body2014
JUDGMENT Aditya Nath Mittal, J. 1. Heard Shri M.P. Yadav, learned counsel for the petitioners and Shri Prabhu Ranjan Tripathi, learned counsel appearing for opposite parties no. 3 and 4 and perused the record. 2. This petition has been filed against the order dated 29.04.2004, passed by the then learned Additional Session Judge, Barabanki in Criminal Revision No. 26 of 1998. 3. The brief facts as culled out from the pleadings of the writ petition are that the opposite parties no. 3 and 4 had moved an application under Section 133 Cr.P.C. alleging that Tulsi Ram (now dead), father of the petitioners, is trying to make encroachment on the public way, for which, he has no right. It was alleged in the application that the disputed public way is existing since last thirty five years and the applicant as well as other villagers are using that public way. On 04.07.1992, at about 10.00 a.m., the opposite parties tried to make construction on the public way, regarding which the application was also given on 26.06.1992. 4. The opposite parties had filed objection that there was no public way on the disputed land and the applicant should approach the competent civil court. The land in dispute was obtained by Patta for construction of the house and for cattle shed. None of the villagers had made any objection regarding the said construction. 5. After affording opportunity of hearing to both the parties, learned Sub-Divisional Magistrate, Nawabganj, Barabanki came to the conclusion that it was a private dispute and the villagers are not affected by it. He also came to the conclusion that the dispute has arisen after partition, which is not within the preview of Section 133 Cr.P.C.. Therefore, the proceedings were dropped by the judgment and order dated 23.03.1998. 6. The said judgment was challenged in Criminal Revision No. 26 of 1998 before the Additional Session Judge, Barabanki and the Additional Session Judge Barabanki after hearing both the parties, came to the conclusion that if the villagers are using the land in dispute as a public way, then it can be taken as public way. He has also observed that the learned Magistrate has delayed the proceedings unnecessarily and in the circumstances, the disputed plot could be declared as public way. He has also observed that the learned Magistrate has delayed the proceedings unnecessarily and in the circumstances, the disputed plot could be declared as public way. Accordingly, the revision was allowed and the matter was remanded to Sub-Divisional Magistrate, Nawabganj, Barabanki for fresh disposal of the case in view of the observations made by the Revisional Court by judgment and order dated 29.04.2004. 7. The said order dated 29.04.2004 has been challenged before this Court by means of instant writ petition. 8. Learned counsel for the petitioners has submitted that the learned Magistrate has categorically recorded the findings that it is private dispute between the parties, therefore, he was not having any jurisdiction under Section 133 Cr.P.C. The learned Revisional Court has wrongly tried to find out the title of the parties, which is beyond the scope of Section 133 Cr.P.C. Both the parties are members of same family and they have derived their title from their same source. Therefore, the order passed by the Sessions Judge is illegal, arbitrary and malafide. 9. Learned counsel for the petitioners has further submitted that the order of Revisional Court is beyond the ambit of Section 133 Cr.P.C. and he should not have remanded the matter. It has also been submitted that the validity of Patta could not be seen in the proceedings under Section 133 Cr.P.C. 10. It has also been submitted by learned counsel for the petitioners that the matter is pending since 09.07.1992 and since then neither the opposite parties no. 3 and 4 nor the Gaon Sabha have approached the competent court regarding validity and illegality of the lease-deed. The opposite parties no. 3 and 4 have admitted in their counter affidavits that the petitioners were also granted lease on 28.06.1979 for constructing their houses. The petitioners had raised the construction over the land in dispute in the year 1992 itself. Therefore, after a lapse of about twenty two years, the proceedings under Section 133 Cr.P.C. could not be drawn. 11. In support of his submission, learned counsel for the petitioners has relied upon the case State of M.P. vs. Kedia Leather & Liquor Ltd. and others reported in AIR 2003 SC 3236 , in which the Apex Court in para-8 has held as under: - "8. Section 133 of the Code appears in Chapter X of the Code which deals with maintenance of public order and tranquility. Section 133 of the Code appears in Chapter X of the Code which deals with maintenance of public order and tranquility. It is a part of the heading 'public nuisance'. The term 'nuisance' as used in law is not a term capable of exact definition and it has been pointed out in Halsbury's Laws of England that "even at the present day there is not entire agreement as to whether certain acts or omissions shall be classed as nuisances or whether they do not rather fall under other divisions of the law of tort". In Vasant Manga Nikumba and Ors. v. Baburao Bhikanna Naidu (deceased) by Lrs. and Anr. it was observed that nuisance is an inconvenience which materially interferes with the ordinary physical comfort of human existence. It is not capable of precise definition. To bring in application of Section 133 of the Code, there must be imminent danger to the property and consequential nuisance to the public. The nuisance is the concomitant act resulting in danger to the life or property due to likely collapse etc. The object and purpose behind Section133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately irreparable damage would be done to the public. It applies to a condition of the nuisance at the time when the order is passed and it is not intended to apply to future likelihood or what may happen at some later point of time. It does not deal with all potential nuisance, and on the other hand applies when the nuisance is in existence. It has to be noted that some times there is a confusion between Section 133 and Section 144 of the Code. While the latter is more general provision the former is more specific. While the order under the former is conditional, the order under the latter is absolute. The proceedings are more in the nature of civil proceedings than criminal proceedings". 12. Learned counsel for the petitioners has further relied upon the case Kachrulal Bhagirath Agrawal and others vs. State of Maharashtra and others reported in AIR 2004 SC 4814, in which the Apex Court in paras-10 and 11 has held as under: - "10. A proceeding under Section 133 is of a summary nature. 12. Learned counsel for the petitioners has further relied upon the case Kachrulal Bhagirath Agrawal and others vs. State of Maharashtra and others reported in AIR 2004 SC 4814, in which the Apex Court in paras-10 and 11 has held as under: - "10. A proceeding under Section 133 is of a summary nature. It appears as a part of Chapter X of the Code which relates to maintenance of public order and tranquility. The Chapter has been classified into four categories. Section 129 to 132 come under the category of "unlawful assemblies". Sections 133 to 134 come under the category of "public nuisance". Section 144 comes under the category of "urgent cases of nuisance or apprehended danger" and the last category cover Sections 129 to 149 relating to "disputes as to immovable property". Nuisances are of two kinds, i.e. (i) Public; and (ii) Private. 'Public nuisance' or 'common nuisance' as defined in Section 268 of the Indian Penal Code, 1850 (in short the 'IPC') is an offence against the public either by doing a thing which tends to the annoyance of the whole community in general or by neglecting to do anything which the common good requires. It is an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property 'in the vicinity. 'Private nuisance' on the other hand, affects some individuals as distinguished from the public at large. The remedies are of two kinds-civil and criminal. The remedies under the civil law are of two kinds. One is under Section 91 of the Code of Civil Procedure, 1908 (in short 'CPC'). Under it a suit lies and the plaintiffs need not prove that they have sustained any special damage. The second remedy is a suit by a private individual for a special damage suffered by him. There are three remedies under the criminal law. The first relates to the prosecution under Chapter XIV of IPC. The second provides for summary proceedings under Sections 133 to 144 of the Code, and the third relates to remedies under special or local laws. Sub-section (2) of Section 133 postulates that no order duly made by a Magistrate under this Section shall be called in question in any civil Court. The second provides for summary proceedings under Sections 133 to 144 of the Code, and the third relates to remedies under special or local laws. Sub-section (2) of Section 133 postulates that no order duly made by a Magistrate under this Section shall be called in question in any civil Court. The provisions of Chapter X of the Code should be so worked as not to become themselves a nuisance to the community at large. Although every person is bound to so use his property that it may not work legal damage or harm to his neighbour, yet on the other hand, no one has a right to interfere with the free and full enjoyment by such person of his property, except on clear and absolute proof that such use of it by him is producing such legal damage or harm. Therefore, a lawful and necessary trade ought not to be interfered with unless it is proved to be injurious to the health or physical comfort of the community. Proceedings under Section 133 are not intended to settle private disputes between different members of the public. They are in fact intended to protect the public as a whole against inconvenience. A comparison between the provisions of Section 133 and 144 of the Code shows that while the former is more specific the latter is more general. Therefore, nuisance specially provided in the former section is taken out of the general provisions of the latter section. The proceedings under Section 133 are more in the nature of civil proceedings than of criminal nature. Section 133 (1)(b) relates to trade or occupation which is injurious to health or physical comfort. It itself deals with physical comfort to the community and not with those acts which are not in themselves nuisance but in the course of which public nuisance is committed. In order to bring a trade or occupation within the operation of this Section, it must be shown that the interference with public comfort was considerable and a large section of the public was affected injuriously. The word 'community' in Clause (b) of Section 133 (1) cannot be taken to mean residents of a particular house. It means something wider, that is, the public at large or the residents of an entire locality. The very fact that the provision occurs in a Chapter with "Public Nuisance" is indicative of this aspect. The word 'community' in Clause (b) of Section 133 (1) cannot be taken to mean residents of a particular house. It means something wider, that is, the public at large or the residents of an entire locality. The very fact that the provision occurs in a Chapter with "Public Nuisance" is indicative of this aspect. It would, however, depend on the facts situation of each case and it would be hazardous to lay down any straitjacket formula. 11. The guns of Section 133 go into action wherever there is public nuisance. The public power of the Magistrate under the Code is a public duty to the members of the public who are victims of the nuisance, and so he shall exercise it when the jurisdictional facts are present. "All power is a trust-that we are accountable for its exercise-that, from the people, and for the people, all springs and all must exist". The conduct of the trade must be injurious in praesenti to the health or physical comfort of the community. There must, at any rate, be an imminent danger to the health or the physical comfort of the community in the locality in which the trade or occupation is conducted. Unless there is such imminent danger to the health or physical comfort of that community or the conduct of the trade and occupation is in fact injurious to the health or the physical comfort of that community, an order under Section 133 cannot be passed. A conjoint reading of Sections 133 and 138 of the Code discloses that it is the function of the Magistrate to conduct an enquiry and to decide as to whether there was reliable evidence or not to come to the conclusion to act under Section 133 ". 13. Learned counsel for the petitioners has further relied upon the case Vasant Manga Nikumba and others vs. Baburao Bhikanna Naidu (Deceased) By LRS. and another reported in 1995 (Supp) (4) SCC 54, in which the Apex Court in para-4 has held as under: - "4. 13. Learned counsel for the petitioners has further relied upon the case Vasant Manga Nikumba and others vs. Baburao Bhikanna Naidu (Deceased) By LRS. and another reported in 1995 (Supp) (4) SCC 54, in which the Apex Court in para-4 has held as under: - "4. A reading of Section 133 would clearly indicate that the Executive Magistrate has been empowered, on receiving a report of the police officer or other information and on taking such evidence as he thinks fit that any building, tent or structure is in such a condition that, due to failure to remove, disrepair, or without support it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by and that in consequence he is empowered to specify the time to remove, repair or provide support to such building, tent or structure or tree. Two options are open to the Executive Magistrate on considering whether structure, building etc. is in such a dilapidated condition which requires to be demolished immediately which brooks no delay to avert danger to the life and property of the neighbourhood or passers-by unless they could be suitably repaired or supported so as to avert danger to the public or have to removed, etc. The condition precedent to exercise the power under Section 133 is the imminent danger to the property and consequential nuisance to the public. The removal of the building is so urgently required as it is likely to fall and cause injury to persons lying or carrying on business in the neighbourhood or passers-by. The nuisance is the concomitant act resulting in danger to the life or property due to likely collapse etc. The dangerous condition of the building is in present but not in future. The section is limited to injuries likely to be caused to the passers-by or persons living or carrying on business in the neighbourhood. Each case has to be considered in the light of the facts and circumstances obtained in each case". 14. On the other hand, learned counsel for the opposite parties no. 3 and 4 has submitted that the Sub-Divisional Magistrate had called the report from local police and the local police has stated that petitioners have left only 4 ft. narrow passage through which no Tractor Trolley can be passed. 14. On the other hand, learned counsel for the opposite parties no. 3 and 4 has submitted that the Sub-Divisional Magistrate had called the report from local police and the local police has stated that petitioners have left only 4 ft. narrow passage through which no Tractor Trolley can be passed. It has also been submitted that the area Lekhpal had also sent the report stating that the petitioners have blocked the road and the villagers are facing problems and the help of police is required to remove the encroachment. The opposite party no. 2 has not considered the report submitted by the revenue authorities and the local police and has wrongly rejected the application under Section 133 Cr.P.C. It has also been submitted that the learned Magistrate has passed the order without considering the facts and material available on record and although has accepted the existence of road but according to the petitioners the width of the road is only 4 ft. However, the opposite parties are claiming 15 ft. width. It has also been submitted that the land in dispute belongs to Gaon Sabha and the matter should have been decided by the Magistrate after taking into consideration that whether the witnesses examined were reliable or not. It has also been submitted that the land in dispute was allotted on 28.06.1979 for house purpose but no construction was made for several years and in view of the provisions of Section 115-Q of U.P. Zamindari Abolition & Land Reforms Rules, if the constructions are not raised within three years of the allotment then the land will again be deemed to have vested in the Gaon Sabha. Therefore after 28.06.1981, the petitioners have no right to raise the construction over the land in dispute and for block the public way. The reports submitted by the various authorities clearly reveal that the petitioners have created obstructions on the public path. Learned counsel for the opposite parties no. 3 and 4 has also defended the impugned order passed by learned Additional Session Judge, Barabanki. It has also been submitted that the villagers are facing various problems due to encroachment created by the petitioners. 15. In support of his submission learned counsel for the opposite parties no. 3 and 4 has relied upon the case Somnath V Poi Dhungat vs. State and another reported in 1974 Cri. It has also been submitted that the villagers are facing various problems due to encroachment created by the petitioners. 15. In support of his submission learned counsel for the opposite parties no. 3 and 4 has relied upon the case Somnath V Poi Dhungat vs. State and another reported in 1974 Cri. L.J. 522, in which the Goa High Court in para-6 has held as under: - "6. I am afraid I cannot accept this reasoning adopted by the learned Additional District and Sessions Judge. When deeply considered we will find that this reasoning is fallacious. The relevant portion of Section 133 , Cr.P.C. Reads as under: - (1) Whenever a District Magistrate, a Sub-Divisional Magistrate or a Magistrate of the first class considers, on receiving a police report or other information and on taking such evidence (if any) as he thinks fit, (2) that any building tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such trees, is necessary, or (3) to remove or to support such tree. In fact we will have to analyze the word "persons" apprising after the words and thereby cause injury to. This section does not specify the minimum number of persons that should be living etc., so that if more than one person is living etc., that will amount, to persons and the provisions of Section 133 , Cr.P.C. Will be attracted. I am therefore of the opinion that the learned Sub-Divisional Magistrate was justified in taking action under Section 133 even though the respondent's family was the only family which would be affected by the fall of the trees as the section does not speak of families but of persons. This view of mine is also supported by a decision reported in 1962(2) Cri. LJ 66 (Kerala). This case is on all fours with the present case. This view of mine is also supported by a decision reported in 1962(2) Cri. LJ 66 (Kerala). This case is on all fours with the present case. The point that was considered in that case is also the same and it was held by the Kerala High Court that the tree in question need not be in such a position as to fall in any public place; it is quite enough that it is likely to fall, wheresoever the fall might be, so long as the fall is capable of causing injury to persons living or carrying on business in the neighbourhood. The requirement is satisfied even if the danger is confined to the members of a single household, even to a sole occupant". 16. Learned counsel for the opposite parties has further relied upon the case Shri Ram Kishore and another vs. State reported in 1973 Cri. L.J. 1527, in which the Himachal High Court in para-8 has held as under: - "8. The said observation was made by the learned Judge in the special circumstances of that case where the right of way was claimed which did not find mention in the revenue records and hence it was held that public right was not established. In such a case the proof of ownership of land was considered reliable evidence to deny the public right of way. In the case before me the property being private, nevertheless was uniformly used by the members of the public and certain defined rights were exercised from long time in the past. Therefore, the above noted decision will be of no avail to the petitioners". 17. Learned counsel for the opposite parties has further relied upon the case Krishna Gopal vs. State of M.P. Reported in 1986 Cri. LJ 396, in which the High Court of Madhya Pradesh in para-9 has held as under: - "9. In this backdrop of events Shri Bhojwani appearing for the petitioner had contended that in view of the facts, where only one complainant Smt. Sarla Tripathi has come forward to complain about the nuisance can it be said that the nuisance complained of, is a public nuisance as contemplated by Section 133 of the Cr. In this backdrop of events Shri Bhojwani appearing for the petitioner had contended that in view of the facts, where only one complainant Smt. Sarla Tripathi has come forward to complain about the nuisance can it be said that the nuisance complained of, is a public nuisance as contemplated by Section 133 of the Cr. P.C. According to the learned Counsel inconvenience caused to the inmates of a house, can and should not be considered as a public nuisance as it is essentially private in nature for which it is not permissible to invoke Section 133 , Cr. P.C. The argument advanced is inherently fallacious. It is not the intent of law that the community as a whole or a large number of complainants come forward to lodge their complaint or protest against the nuisance; that does not require any particular number of complainants. A mere reading of Section 133 (1) would go to show that the jurisdiction of the Sub-Divisional Magistrate can be invoked on receiving a report of Police Officer or other information, and on taking such evidence if any, as he thinks fit. These words are important, Even on information received the Sub-Divisional Magistrate is empowered to take action in this behalf for either removal or regularising a public nuisance. Thus, the argument advanced by the learned Counsel cannot be accepted. In this case, the action was initiated on the basis of a Police Report also which is on record. The complaint received, was sent to the P.S., Palasia and on that basis on 18-9-82 a report was filed Under Section 133 , Cr. P.C. by the Station Officer P.S., Palasia followed by show-cause notice. Thus, there is no factual basis even for advancing such an argument". 18. Learned counsel for the opposite parties has further placed reliance upon the case Jayakrishna Panigrahi and others vs. Hrusikesh Panda reported in : 1992 Cr. L.J. 1056, in which the Orissa High Court in para-9 has held as under: - "9............. Thus, there is no factual basis even for advancing such an argument". 18. Learned counsel for the opposite parties has further placed reliance upon the case Jayakrishna Panigrahi and others vs. Hrusikesh Panda reported in : 1992 Cr. L.J. 1056, in which the Orissa High Court in para-9 has held as under: - "9............. Having examined the provisions of the Act and having applied the principles of interpretation of Statute which we have discussed earlier in detail, we have no doubt in our mind that the provisions contained in Section 133 (1)(c),(d) and (f) would apply to a case where the interest of a single or few individuals are concerned and the decisions of this Court in Gayasundari Devi's case as well as Lalmohan Patnaik's case are not the correct expositions of law". 19. Learned counsel for the opposite parties has also submitted that the report of area Lekhpal and the local police has not been considered by the learned Magistrate and the petitioners are history-sheeter and so many criminal cases are pending against them. As they are having criminal background, therefore, they have forcibly encroached the public way. It has also been submitted that the land in between two Pattas has been encroached in the garb of Patta, which is not permissible. It has also been submitted that the land in dispute is still recorded as Navin Parti. Therefore the Patta of the disputed land, which is public way, could not be allotted to the petitioners. 20. I have considered the rival submissions of learned counsel for the parties and have also gone through the case laws relied upon by both the parties. 21. Section 133 Cr.P.C. provides the powers of District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate to remove any unlawful obstruction or nuisance from any public place or from any way, river or channel which is or may be lawfully used by the public. Such Magistrate has power to make a conditional order requiring the person causing such obstruction or nuisance within a time to be fixed in the order. Explanation in Section 133 Cr.P.C. also provides that a "public place" includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes. 22. It is not disputed that both the parties were allotted the Patta on 28.06.1979. Explanation in Section 133 Cr.P.C. also provides that a "public place" includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes. 22. It is not disputed that both the parties were allotted the Patta on 28.06.1979. As per the submission of learned counsel for the opposite parties, they had constructed their house soon after 28.06.1979, but the petitioners had not constructed their house on the land in dispute till 1992. It is also not disputed that the dispute arose in the year 1992 when the father of the petitioners had collected the building construction material over the land in dispute and the construction was attempted to have been made. It appears that the construction was sought to be made in the year 1992, while as per admitted case, the land in dispute was allotted in the year 1979. 23. Rule 115-Q of U.P. Zamindari Abolition & Land Reforms Rules, 1952 provides as under: - "115-Q. The person to whom the housing site is allotted shall be required to build a house and begin to reside in it or to use it for the purpose for which it was built within three years from the date of allotment: If he fails to do so or uses it at any time for a purpose other than that for which it was allotted his rights shall be extinguished and the site may be taken over by the Land Management Committee". 24. The only exception to the aforesaid rule is that the aforesaid time limit for building the house shall not apply to a person belonging to Scheduled Caste or Scheduled Tribe. 25. In the case of Anmjay vs. State of U.P. & others reported in 1980 RD 279, this Court has held as under: - "The finding recorded by the lower appellate court is based on consideration of material evidence on record, which has not been successfully challenged by the learned counsel for the appellant to be perverse or without any basis of evidence on the record. Therefore, in view of the fact that no house was constructed by the plaintiff within the period of two years of the allotment, plaintiff's right in the land in suit extinguished immediately on expiry of the period and the Gaon Sabha is fully justified in making reauction". 26. Therefore, in view of the fact that no house was constructed by the plaintiff within the period of two years of the allotment, plaintiff's right in the land in suit extinguished immediately on expiry of the period and the Gaon Sabha is fully justified in making reauction". 26. Annexure CA-1 to the counter affidavit of the opposite parties no. 3 and 4 contains the report of area Lekhpal, in which he has stated that the land in dispute is entered in the revenue records as Navin Parti and Tulsi Ram has made unauthorized possession over that land. He has also closed the old public way. It has further been stated that the public way of whole of the village has been obstructed by Tulsi Ram. Perusal of the impugned order passed by the Sub-Divisional Magistrate, Nawabganj, Barabanki reveals that he has neither considered the report of the area Lekhpal and has also not considered the report of the local police dated 04.07.1992, who has specifically reported that Tulsi Ram was making construction on the land in dispute by raising a wall of bricks. The local police has also stated that a wall of ten bricks height has been constructed, which goes to show that the averments of the opposite parties no. 3 and 4 appear to be true, in which they have complained that Tulsi Ram is trying to make construction over the land in dispute in the year 1992 while the Patta was allotted in the year 1979. The Sub-Divisional Magistrate was required to consider the evidence on record as well as the report of area Lekhpal and the local police. Learned Additional Session Judge, Barabanki has also observed that the land in dispute is recorded as Navin Parti. Learned Additional Session Judge has also come to the conclusion that no lease-deed has been executed in favour of Tulsi Ram in accordance with rules of U.P. Zamindari Abolition & Land Reforms Act. Therefore, the aforesaid lease in favour of Tulsi Ram is void. Learned Additional Session Judge has also observed that the land in dispute is being managed by Gaon Sabha and if the villagers had used the land in dispute as public way, then it can be recognized as a public way. 27. Therefore, the aforesaid lease in favour of Tulsi Ram is void. Learned Additional Session Judge has also observed that the land in dispute is being managed by Gaon Sabha and if the villagers had used the land in dispute as public way, then it can be recognized as a public way. 27. Rule 115-Q of U.P. Zamindari Abolition & Land Reforms Rules clearly provides that if the land has been allotted for building a house then the house should be constructed within three years from the date of allotment and if he fails to do so, then his rights shall be extinguished. 28. It is clear from the report of area Lekhpal as well as local police and also from the evidence adduced by the opposite parties no. 3 and 4 as well as evidence adduced by father of the petitioners themselves that the construction was being made in the year 1992. 29. Certainly, the said constructions were being made after a lapse of three years, therefore, learned Sub-Divisional Magistrate should have considered this aspect also in the light of provisions of Rule 115-Q (supra). I do not find any cogent reason as to why the learned Sub-Divisional Magistrate has not considered the report of area Lekhpal and the local police. The object and purpose of Section 133 Cr.P.C. is so as to prevent the public nuisance and it also involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately then the irreparable damage would be done to the public. No one has a right to obstruct the public way by raising unauthorized construction. If the land in dispute has been used for a long time as a public way, then it cannot prevent the competent authorities to declare it as a public way more particularly in the circumstances when the right of the petitioners has been extinguished in view of the provisions of Rule 115-Q of U.P. Zamindari Abolition & Land Reforms Rules. 30. I also do not find any substance in the submission of learned counsel for the petitioners that learned Additional Sessions Judge has exceeded his powers in observing that it was a public way. 30. I also do not find any substance in the submission of learned counsel for the petitioners that learned Additional Sessions Judge has exceeded his powers in observing that it was a public way. Certainly when there is dispute over the piece of land, the Revisional Court can also observe about the right of the concerned person, who is making unauthorized encroachment because the proceedings under Section 133 Cr.P.C. are of civil nature. 31. I find substance in the submission of learned counsel for the opposite parties no. 3 and 4 that because the land in dispute was recorded as Navin Parti, therefore, it could not have been allotted to the father of the petitioners. I also find substance in the submission that even if the land in dispute has been allotted to the father of the petitioners in the year 1979 and if no construction has been made within a period of three years, then the right of the petitioners' father has already extinguished under the provisions of Rule 115-Q of the Rules. 32. For the facts and circumstances mentioned above, I do not find any substance in this petition. The learned Additional Session Judge, Barabanki has remanded the matter for fresh consideration with some observations. The dispute between the parties is pending since the year 1992. The speedy justice is a right of every citizen. The writ petition lacks merit and deserves to be dismissed. 33. Accordingly, the writ petition is dismissed with the direction that Sub-Divisional Magistrate, Nawabganj, Barabanki shall adjudicate the matter afresh in view of the observations made by the learned Additional Session Judge as well as by this Court, expeditiously and if possible within a period of three months from the date of submission of a certified copy of this order, after affording opportunity of hearing to both the parties as well as the Gaon Sabha/Land Management Committee. It is also directed that till pronouncement of fresh decision by the Sub-Divisional Magistrate, Nawabganj, Barabanki, the parties shall maintain status-quo over the land in dispute.