Crl.Rev.No.1702 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Rev.No.1702 of 2009 Date of Decision:- 13.07.2009 Janak Singh ....Petitioner(s) vs. Bhagwant Singh and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Premjit S.Hundal, Advocate, for the petitioner. *** AUGUSTINE GEORGE MASIH, J. The present revision petition has been preferred by Janak Singh who had moved an application under Section 133 Cr.P.C. against the respondents alleging therein that they have encroached upon the public passage and, therefore, should be ejected therefrom as they were causing nuisance/obstruction and hampering the free access of the residents of the village. It was submitted that no one had a right to close the passage and by encroaching upon one marla of land with the Abadi land, the respondents have illegally occupied the passage. The villagers are facing problem in going and to take their tractor-trolleys through the said passage. On the basis of the said complaint/application, the Sub Divisional Magistrate, Sangrur, directed Bhagwant Singh son of Sant Sngh to vacate an area of one marla which was in his illegal possession within one year. Revision petition was preferred by the respondent-Bhagwant Singh. In the said Crl.Rev.No.1702 of 2009 -2- revision petition, learned Additional Sessions Judge (A) Fast Track Court, Sangrur, came to the conclusion that the passage which is alleged to be a public passage was not being used by anyone else except the revisionist and even Janak Singh-petitioner herein, is not using the said passage. Thus, holding that it was not a public passage, the application under Section 133 Cr.P.C. was not found to be maintainable. As per record available, the learned revisional Court came to the conclusion that the demarcation so done, was not in accordance with law and, therefore, the basis for coming to the conclusion with regard to the encroachment being made by the respondents was not correct as the demarcation report was not in consonance with the Rules framed by the Punjab Financial Commissioner. It has also come on record and in the statement of Balbir Singh Kanungo and Hari Singh Numberdar and that of Janak Singh that there are three passages attached to the land of Janak Singh which can easily be accessed to his fields. It has also been admitted that ahead of the road, there is only an agricultural land and there is no slope or access or the passage to the land which is lying low by 2/3 feet from the passage in question. This goes on to show that the passage is not being used by Janak Singh-petitioner. No other person except Janak Singh has come into the witness box to state that they are using the passage in question. Janak Singh has asserted that his two other brothers are also using the said land but none of them has been examined in support of this assertion. It has also come on record that the construction which is stated to have been raised in the form of encroachment on the path in question is 15/20 years old and no objection whatsoever was ever made in that regard. Although it cannot be taken as a ground for encroaching upon the path but the basic question which really Crl.Rev.No.1702 of 2009 -3- comes forth is that the path which is being sought to be encroached upon by the respondents and is said to be causing obstruction and nuisance which is required to be removed from a public place, is actually a public path and not a passage as it has come on record that the path is not being used by the public and only the passage is being used by one person which cannot justify a path to be declared as a public passage. Since it is not a public passage, it would only be a private passage and only the owner of the land could seek eviction of the encroacher upon the land. Therefore, in such a situation, the application under Section 133 Cr.P.C. would not be maintainable. The order passed by the Additional Sessions Judge (A), Fast Track Court, Sangrur dated 24.4.2009 being in accordance with law, does not call for any interference by this Court. Dismissed. July 13, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE