Whether proceedings under Section 133 Cr.P.C. can be carried out even if the public right of way in question is not officially sanctioned yet existent and used by the public in general.?

For Section 133 Cr.P.C to be attracted, the right of way from which a nuisance is sought to be removed must be one which is or may be usefully used by public. A thoroughfare is a place where the public go irrespective of whether they have a right to go or not The place has to be open to the public i.e. a place where the public has access by permission, usage or even otherwise.

In a common/joint khata each co-sharer is considered as an owner in possession. And the constant use of such thoroughfare/right of way by the general public clearly attracts Section 133 Cr.P.C. Therefore, even if a street or a passage is not a declared public street in the revenue record, a public passage could still come into existence on account of its use by the public in general. The co-sharers having permitted the use of the thoroughfare by conduct!

The purpose of insertion of Section 133 in Cr.P.C is apparent from the heading of the provision; “conditional order for removal of nuisance” i.e the magistrate is required to ascertain the existence of nuisance and not the nature of land or property over which right of way is claimed. The said purpose is reinforced by Section 139-A, which provides that the only defence against an order made under Section 133 is denial of existence of any public right, hence, emphasising that only in the absence of a public right of way, can such an order be recalled.

The use of land in question as a public right of way and its obstruction by construction of walls from three sides stands proven and the claim of non-existence of such right of way has not been established. Once the consistent use of the land as a public right of way is established, there remains no question of whether such land reflects as a public way in the land record or not since it is not the categorization or ownership of the land but the consistent use of such piece of land by public which necessitates an order under Section 133.

The fact that the thoroughfare in issue has been used in the past by the public in general is undeniable in view of the statements of residents recorded by the revenue hierarchy and which statements have been alluded to in the reports so submitted. It is also equally true that on account of the nuisance created by the blocking of the thoroughfare in question by the private respondents there is great resentment amongst the users of the said thoroughfare and which may cause disruption of peace. Hence, the concurrent findings recorded by the courts below are unexceptionable and call for no interference.

W rit Petition No. 18344 of 2019
Ghulam Siddique Versus Addl. Sessions Judge, etc.
Decided on 01-07-2022