Malkeet Singh Vs State of U.P. Thru. Addl. Chief Secy. Deptt. of Home Lko. and 2 Others

Neutral Citation No. - 2025:AHC-LKO:27599

Court No. - 12

Case :- CRIMINAL REVISION No. - 486 of 2025

Revisionist :- Malkeet Singh Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Lko. And 2 Others Counsel for Revisionist :- Bal Keshwar Srivastava,Ajit Kumar Mishra,Izhar Husain Siddiqui,Kanchan Sinha,Masood Ali,Savita Misra,Syed Mohd. Intizar,Toshendra Kumar,Versha Rani Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Alok Mathur,J.

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Heard Sri Bal Keshwar Srivastava, learned counsel for the revisionist and the A.G.A. on behalf of the State.

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By means of the present criminal revision under Section 397 / 401 of Cr.P.C. the revisionist has challenged the order dated 4.2.2025 passed by Sub Divisional Magistrate, Gola, District Lakhimpur, whereby he has rejected the application in exercise of the powers contained under Section 133 of Cr.PC.

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It has been submitted that a complaint was preferred by the revisionist with regard to removal of encroachments on a public way where the road is situated at gata No.727, Village Salawat Nagar, P.s. Mailani, District Lakhimpur Kheri which is recorded in the revenue records as a public way. The said road connects Mailani Salawat Nagar, Sarveshwari Mata Mandir and Keenaram Ashram, Kukra Gola and the width of the said road is 60 feet and there are allegations of encroachment on both sides of the road. On receiving the complaint report of the Revenue Department as well as Police was sought by the Sub Divisional Magistrate and as per the said report it has been stated that width of the road is 80 kadi (16 meters) while on the spot only 20 Kadi (four meters) width was found. In the said report it was clearly stated that there is illegal encroachments on both the sides of the road in as much as permanent home structures including the house have been made.

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It has been submitted that after considering the entire facts, the Sub Divisional Magistrate has rejected the application only on the ground that it is only the revisionist who has filed complaint while in case allegations were correct then several villagers would have been associated themselves with the complaint and would have come forward to support allegations. He has further recorded that apart from the revisionist no one has come to give evidence and consequently he has directed the revisionist to contact Public Works Department who will

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conduct inquiry in this regard and in case it is found that there are encroachments they will take action to remove the same and accordingly has disposed of the application of the revisionist.

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Learned counsel for the revisionist submits that as per Section 133 of Cr.P.C. Sub Divisional Magistrate has power to pass appropriate orders for removal of the encroachments and nuisance from the road. He has further submitted that the report of Revenue and Police Departments unequivocally disclose encroachments on both sides of the public road and consequently in exercise of the powers under Section 133 of Cr.P.C. order for removal of the of nuisance etc. should have been passed. He submits that these facts were never denied that encroachment exists on the public road and inspite of passing conditional order the Sub Divisional Magistrate has directed the revisionist to approach Public Works Department with regard to his above grievances and consequently he has failed to exercise the jurisdiction vested in him and accordingly the impugned order is illegal and arbitrary and deserves to be set aside.

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Learned A.G.A., on the other hand, has opposed the revision but does not dispute the aforesaid facts.

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This Court has considered the impugned order dated 4.2.2025 from which it is clear that there are clear encroachments and nuisances on the public road situated at gata No.727, Village Salawat Nagar, P.S. Mailani, District Lakhimpur Kheri and from the material placed before the Sub Division Magistrate including the reports from revenue and police departments clearly indicate encroachments and nuisances on the said road. Once these basic and foundational facts were on record then it was incumbent upon the Sub Divisional Magistrate to have exercised his jurisdiction and passed appropriate orders under Section 133 of Cr.P.C. but instead of passing such an order he has directed the revisionist to approached Public Works Department. Accordingly, this Court is of the considered opinion that the Sub Divisional Magistrate has failed to exercise the jurisdiction and power vested in his under Section 133 of Cr.P.C.

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Considering that conditional order was passed under Section 133 Cr.P.C. and in response to the notice the private individuals who have made permanent structures appeared before the Sub Divisional Magistrate and could not demonstrate any proof of ownership of the house structures and, therefore, it was incumbent upon the Sub Divisional Magistrate to have passed appropriate orders under Section 138 of Cr.P.C. but the Sub Divisional Magistrate has failed to exercise the powers and instead of passing any orders under Section 138 he has directed

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the revisionist to approach the Public Words Department which is clearly illegal and arbitrary and, hence, the Sub Divisional Magistrate has clearly filed to exercise the powers vested with him.

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In view of the above, the present revision is allowed. The impugned order dated 4.2.2025 passed by Sub Divisional Magistrate, Gola, District Lakhimpur in Case No.T202210430304066 is set aside.

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The matter is remanded to the Sub Divisional Magistrate, Gola, District Lakhimpur Kheri to pass fresh order in accordance with law.

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Considering that the matter has been pending for substantial length of time and all the material are available on record, let fresh orders be passed with expedition, say within four weeks from the date a certified copy of this order is placed before him.

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(Alok Mathur, J.)

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Order Date :- 12.5.2025 RKM.

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Digitally signed by :- RAKESH KUMAR MAURYA High Court of Judicature at Allahabad, Lucknow Bench

Malkeet Singh v. State of U.P. Thru. Addl. Chief Secy. Deptt. of Home Lko. and 2 Others

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Malkeet Singh v. State of U.P. Thru. Addl. Chief Secy. Deptt. of Home Lko. and 2 Others

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