IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.828 of 2010 PADMA NAND JHA SON OF LATE SADA NAND JHA, RESIDENT OF VILLAGE ASHOK NAGAR, P.S. JANKI NAGAR, P.O. NAULAKHIA BORARAHI, DISTRICT- PURNEA Versus 1. THE STATE OF BIHAR 2. ABHISAKE KUMAR, SON OF BRAMHA NAND JHA, RESIDENT OF VILLAGE ASHOK NAGAR, P.S. JANKI NAGAR, P.O.- NAULAKHI, DISTRICT- PURNEA ----------- 3 14.02.2011 Heard learned counsels for the petitioner and the State. Petitioner assails the order dated 24th July, 2010 passed by the 2nd Additional District & Sessions Judge, Purnea in Cr. Revison No. 380 of 2007 affirming the order dated 16th August, 2007 (Annexure-3) passed by the Sub-Divisional Magistrate, Banmankhi in Case No. 189 (M) of 2006 in a proceeding under section 133 of the Code of Criminal Procedure. Mr. Chandrashekhar, learned Senior Counsel appearing for the petitioner contends that initiation of the proceeding under section 133 Cr. P.C. was not appropriate rather the authority should have taken a proceeding for removal of the encroachment under the provisions of the Bihar Public Land Encroachment Act, 1956 (hereinafter referred to as the ‘Act’) since the ingredients required for initiating a proceeding under Section 133 Cr. P.C. is not available in the present case. It is further submitted that it is not in dispute that the land in question was a public land. It is further submitted that had the proceeding under the provisions of Bihar Public Land Encroachment Act initiated, the petitioner would had opportunity to defend his case appropriately. Learned counsel for the State, on the other hand, submits that notwithstanding the availability of the forum under the above Act, the information as also the report submitted by the police and other authority justified the initiation of the proceeding under section 133 Cr. P.C. for the simple reason that the land in question was a public land over which admittedly the petitioner had constructed a latrine and tank and according to the report that causes obstruction in movement over the land used as pathway. Considering the rival submissions of the parties, it appears that under the provisions of sub- section 1(a) of Section 133 Cr. P.C. it clearly provides that the District Magistrate or the 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 as he thinks fit, consider 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 may require obstructions to be removed. In the instant case it is not in dispute that the land in question is Gair Mazarua Aam over which the petitioner has got constructed a latrine and tank causing obstruction as per the report submitted by the police as well as the report of the Revenue authority. In view of the above and in the facts and circumstances of the case, the impugned order can not be faulted. The writ application accordingly being devoid of any merit is accordingly dismissed. Manish/- ( Shailesh Kumar Sinha,J.)