Crl.Rev.No. 1559 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Crl.Rev.No. 1559 of 2010 (O&M) Date of decision: 27.5.2010 Bhajan Singh ......Petitioner Versus Nachhattar Singh and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.S.K.Aneja, Advocate, for the petitioner. **** SABINA, J. This petition has been filed under Section 401 of the Code of Criminal Procedure challenging order dated 20.2.2010 passed by the Additional Sessions Judge, Ferozerpur, whereby the petitioner was directed to remove the encroachment within two months. After hearing learned counsel for the petitioner, I am of the opinion that the present petition deserves to be dismissed. Learned Additional Sessions Judge, in para Nos. 14 and 15 of the impugned order, has observed as under:- Crl.Rev.No. 1559 of 2010 (O&M) 2 “14. Learned lower court has ignored the statement of PW2 wherein in his affidavit Ex.PW2/A he has stated that suit filed by Bhajan Singh respondent No.1 pertaining to the passage has already been dismissed on 8.2.2006 under Order 9 Rule 8 CPC. The learned lower Court has observed that civil suit is pending but from the entire file I cannot find any document from where it can be said that civil suit is pending before the Civil Court, rather photocopy of the order dated 8.2.2006 has been placed before me which shows that suit filed by Bhajan Singh against Gurbakhsh Singh and Gram Panchayat Khippanwali was dismissed on 8.2.2006. Head note of the said civil suit does show that respondent No.1 had filed a suit against Gurbaksh Singh father of the petitioner restraining him from carving out any passage illegally and forcibly or in any other manner qua the land comprised of Rc.No.118, Killa No.9/2, 10/3, 11/1, 11/2, 12 and 20 and Rect. No.119 Killa No.15/2, 16, 17/1. It means that on 28.7.2005 when said civil suit was filed Bhajan Singh was in the possession of encroaching upon the passage and, therefore, the present petitioner has moved an application and got the land demarcated vide rapat No.584 dated 25.7.2005. These dates of institution of civil suit and getting report No.584 goes to show that Crl.Rev.No. 1559 of 2010 (O&M) 3 dispute was pertaining to the passage and since the passage was public passage so it was for the learned lower court to preserve the passage ignoring the fact if it is used by the petitioner only or if it is used by the public at large. Meaning of gair mumkin rasta is amply clear that it is used by public at large and, therefore, any obstruction created over the passage has to be removed by the Executive Authority by exercising powers under Section 133 Cr.P.C. and since the learned lower court has not done so, it has committed grave illegality and infirmity. 15. In view of what has been discussed above, I am of the view that the learned lower Court's order, being illegal, infirm and perverse has to be set aside. Accordingly, the revision petition is accepted. The respondent is directed to remove the encroachment within two months from today failing which the petitioner shall be entitled to resort to remedy available to him under the law. Lower court record be returned and revision file be consigned to the record room.” The reasons given by the learned Additional Sessions Judge, while allowing the revision petition and directing the petitioner to remove the encroachment within two months, are sound reasons. The petitioner cannot be allowed to encroach upon the passage Crl.Rev.No. 1559 of 2010 (O&M) 4 which is used by the public at large. No ground for interference in the impugned order is made out. Accordingly, this revision petition is dismissed. SABINA) JUDGE May 27, 2010 anita