Siddhartha Varma, J. - (1.) Brief facts of the case are that the applicant Jameatus Salehat Muslim Girls Educational Society had complained to the City Magistrate on 10.10.2001 that a passage which was being used by the public was being obstructed by the opposite party because of which the passage could not be used by the children going to the school which was run by the society. On the application, reports were called for and ultimately the Magistrate on 7.2.2003 directed the opposite parties to remove the obstruction within 24 hours from the receipt of the order. The opposite party filed a revision being Revision No. 27 of 2003. The Revisional Court allowed the revision on 30.5.2003. This revision has been filed by the applicants who had alleged obstruction of the passage which was being used by the public.
(2.) Learned counsel for the applicant has submitted that the Revisional Court had not set aside the findings as had been arrived at by the Magistrate. He has further submitted that the revision was decided on a wrong premise. The Revisional Court had decided the dispute wrongly as it was under the impression that the obstruction by the opposite party had to be of a declared public path way. It failed to see that the pathway was such which was, even though not a declared public pathway, was being used by the public at large. He therefore, submits the finding to the effect that there was no dispute regarding a "public pathway" was essentially erroneous.
(3.) Learned counsel for the applicant to bolster his case has drawn the attention of the Court to Section 133 of the Cr.P.C. which is being reproduced here as under:- 133. Conditional order for removal of nuisance. (1) Whenever a District Magistrate or a 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 (if any) as he thinks fit, considers- a)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; or b)that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or c) that the construction of any building, or, the disposal of any substance, as is likely to occasion configuration or explosion, should be prevented or stopped; or d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or e)that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or f)that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order- i)to remove such obstruction or nuisance; or ii)to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or iii)to prevent or stop the construction of such building, or to alter the disposal of such substance; or iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or v)to fence such tank, well or excavation; or vi)to destroy, confine or dispose of such dangerous animal in the manner provided in the said order; or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the Order, and show cause, in the manner hereinafter provided, why the order should not be made absolute. 2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court. Explanation- A "public place" includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes.;