Dismissed

Radhey Shyam and Another v. State of U.P. and Others

Allahabad HC10 Sept 2018CRLP/13272/2005

Case brief

AI extract

What is this about?

The High Court dismissed a criminal writ petition challenging orders that directed the petitioner to remove an encroachment from a nali. The court held that the findings of fact by lower courts establishing the nali as a public place were not erroneous and no interference was called for under Section 133 Cr.P.C.

What did the court decide?

The criminal writ petition was dismissed; interim order, if any, vacated.

Radhey Shyam and Another Vs State of U.P. and Others — Landlord and Tenant | Allahabad HC (2018)

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Reserved on 23.8.2018 Delivered on 10.9.2018

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Court No. - 41

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Case :- CRIMINAL MISC. WRIT PETITION No. - 13272 of 2005

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Petitioner :- Radhey Shyam Respondent :- State Of U.P. And Others Counsel for Petitioner :- P.S. Yadav Counsel for Respondent :- Govt. Advocate,Anil Kumar Roy

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Hon'ble Aniruddha Singh,J.

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Heard Sri P.S. Yadav, learned counsel for the petitioner, Sri Anil Kumar Ray, learned counsel for the respondent no. 4 and Sri Mayank Mishra, learned Brief Holder for the State and perused the record.

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This criminal writ petition has been preferred against judgment and order dated 5.12.2005, passed by Additional Sessions Judge, Court No.1, Ghazipur in Criminal Revision No. 384 of 2004, whereby the revision filed by petitioner was dismissed affirming the judgment and order dated 6.10.2004, passed by Sub Divisional Magistrate, Zamania, Ghazipur in Case No. 27/01/25/03.

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Brief facts of the case are that on an application under Section 133 Cr.P.C. moved by the respondent no. 4-Sri Ram a report was called for from Station House Officer, Suhwal and Tehsildar, Zamania; on 17.10.2001 a report was received from Station House Officer, Suhwal stating therein that as per respondent no. 4 he has a pumping set, Nali of which is adjoining to the house of petitioner and the petitioner has made encroachment / wall thereon; on 31.12.2001 a conditional order was passed under Section 133 Cr.P.C.; On 30.3.2002 petitioner has filed his objection denying the allegations of encroachment made against him. Evidence was

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adduced on behalf of both the parties in support of their respective cases and after hearing learned counsel for both the parties, it was found that the petitioner has made construction over the disputed Nali, hence the impugned order dated 6.10.2004 was passed directing the petitioner to remove the wall constructed over the disputed Nali. Against this order, revision was filed by the petitioner, which was dismissed vide impugned order dated 5.12.2005. Hence, this petition.

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Learned counsel for the petitioner submitted that the order passed by both the Courts below are illegal, arbitrary and against the evidence available on record. The Nali in dispute has been made in the land of the private person and he has led evidence in support thereof, hence application under Section 133 Cr.P.C. is not maintainable and in such circumstances, impugned orders are liable to be quashed on this very ground.

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The provisions of Section 133 Cr.P.C. reads as under:-

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Section 133(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 on taking such evidence (if any) as he thinks fit, considers-

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(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.

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6. The words used is “used by public” and “public place”. According to evidence adduced by the police, both the courts below have found that the disputed Nali was found in public place and used by public; therefore, the impugned orders were

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passed. This Court is not supposed to interfere with the findings of fact arrived at by the learned courts below.

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In view of the above, this Court finds no illegality, impropriety, material irregularity or jurisdictional error in the impugned orders. No interference is called for. The present petition lacks merit and is liable to be dismissed.

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The petition is accordingly dismissed. Interim order, if any, stands vacated.

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Copy of this judgment and order be transmitted to the Court concerned immediately for necessary compliance. Order Date :- 10.9.2018 NS

Radhey Shyam and Another v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

Radhey Shyam and Another v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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