Allahabad High Court
DURGAversusIV A.S.J. BANDA AND OTHERS
- Decided
- Disposal
- Dismiss other than merit(DD/Non Prosec./Abated)
Holding
The order directing removal of the encroachment under Section 133 Cr.P.C. is lawful and not illegal.
Summary
The petitioner, Durga, was ordered by the Sub‑Divisional Magistrate to remove an alleged encroachment on a public way under Section 133 of the Criminal Procedure Code. Durga challenged this order through a criminal revision, which was dismissed by the 4th Additional Sessions Judge. She then filed a writ petition under Article 226 of the Constitution, contending that the magistrate’s order was illegal. The High Court examined the evidence and found that Durga had not demonstrated that the structure was on her private land, concluding that the magistrate was correct in finding an encroachment. Accordingly, the Court held there was no illegality in the orders and dismissed the writ petition, affirming both the magistrate’s and the Sessions Judge’s orders.
Issues considered
- Whether the order directing removal of an encroachment under Section 133 Cr.P.C. is illegal.
- Whether the petitioner proved that the alleged construction was on private land.
- Whether the writ petition under Article 226 is maintainable in view of the earlier criminal revision.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 133
Subjects
- encroachment
- public way
- Section 133 CrPC
- Article 226 writ petition
- criminal revision
- order of magistrate
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. WRIT PETITION No. - 4676 of 2000
Durga
.....Petitioner(s)
Versus
Iv A.S.J. Banda And Others
.....Respondent(s)
Counsel for Petitioner(s) : Kandarp Dwivedi, S.K.Shukla, Sharad
Kumar Purwar
Counsel for Respondent(s) : Birendra Singh, Vinod Singh
Court No. - 53
HON'BLE SANDEEP JAIN, J.
None is present on behalf of the learned counsel for the petitioner.
The instant writ petition under Article 226 of the Constitution of India has been
filed assailing the impugned order dated 30.11.1999 passed by the Sub-
Divisional Magistrate, Naraini, District Banda, whereby, in proceedings under
Section 133 Cr.P.C., the petitioner, Durga, was directed to remove an
encroachment from the public way. The above order was challenged by the
petitioner by filing Criminal Revision No.181 of 1999 (Durga vs. Ram
Khelawan), which was dismissed on merits by the 4th Additional Sessions
Judge, Banda, on 17.07.2000. Both the orders are now assailed by the
petitioner through the present writ petition.
It is apparent that the Magistrate, after considering the evidence on record,
concluded that the petitioner had made an encroachment on the public way.
The petitioner has failed to prove that the alleged construction was made on
his private land. In view of this, there is no illegality in the impugned orders.
Accordingly, the instant writ petition is dismissed.
Consequently, the impugned orders dated 30.11.1999 and 17.07.2000 are
affirmed.
Interim order, if any, stands vacated.
May 5, 2026
Mayank
(Sandeep Jain,J.)
Digitally signed by :-
MAYANK KUMAR SHARMA
High Court of Judicature at Allahabad
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