Petitioner's Own Admission of Street's Existence Seals Section 133 CrPC Encroachment Order, Rules Allahabad HC
The Allahabad High Court dismissed a challenge to an SDM's encroachment removal order, holding that the petitioner's own objection admitted the existence of the disputed public street, making a Section 137 inquiry unnecessary.
Justice Dr. Ajay Kumar-II, sitting singly at the High Court of Judicature at Allahabad, dismissed a petition filed under Article 227 of the Constitution of India challenging an order of the Additional Sessions Judge/Special Judge, SC/ST Act, Kushinagar at Padrauna, which had rejected the petitioner's criminal revision against an encroachment removal direction issued by the Sub-Divisional Magistrate, Hata, Kushinagar. The court found that the petitioner, Shambhu Singh, had himself admitted in his written objection before the SDM that a two-foot-wide street existed between his house and that of respondent no. 2. That admission, the court held, was sufficient to establish the existence of a public way and rendered a formal inquiry under Section 137 CrPC unnecessary. The petition was dismissed on 1 May 2026.
A Six-Year Proceeding Under Section 133 CrPC
The dispute traces back to 4 June 2018, when respondent no. 2 filed a complaint before the Sub-Divisional Magistrate, Hata, Kushinagar under Section 133 CrPC seeking removal of a ladder or staircase constructed by Shambhu Singh. The SDM directed the SHO, Kaptanganj, Kushinagar to submit a report, which was received on 13 September 2018. The SDM then passed a preliminary order on 22 October 2018 directing the petitioner to file his objection.
The petitioner contended that no notice was ever served on him pursuant to that preliminary order, and he was therefore unable to file any objection. The SDM, receiving no response, sought a report from the concerned Halka Lekhpal, which arrived on 6 April 2022. On 11 April 2022, the SDM confirmed the preliminary order and directed the SHO, Kaptanganj to remove the encroachment.
The petitioner challenged that order by filing Criminal Revision No. 111 of 2002 before the Sessions Judge, Kushinagar. The Sessions Judge allowed the revision on 22 October 2022 and set aside the SDM's order, giving the petitioner an opportunity to file his objection. The petitioner then filed his objection before the SDM, Hata.
The SDM again sought a report, this time from the Revenue Inspector, who submitted his findings on 14 October 2024. The SDM, Hata also personally inspected the spot on 6 November 2024. On 12 November 2024, the SDM passed a fresh order directing the petitioner to remove the encroachment. The petitioner challenged this order before the Sessions Judge, Kushinagar, but his criminal revision was rejected on 19 March 2025. He then approached the High Court under Article 227.
The Petitioner's Case: Private Land, No Public Use
Before the High Court, counsel for the petitioner argued that the staircase in question had been constructed by Shambhu Singh approximately 30 years ago within his own share of the family property, referred to as his Sahan or courtyard. The disputed land, he submitted, had come to the petitioner through a family settlement.
The petitioner further argued that the street or gali in question was not used as a public pathway at all. In support, he pointed to a certificate issued by the Gram Pradhan stating that the street was not used as a public pathway but only for the flow of rainwater. He contended that any nuisance, if at all, was caused only to the family of respondent no. 2 and not to the public at large, and that Section 133 CrPC could not be invoked in such circumstances.
The petitioner also argued that the SDM's order dated 12 November 2024 had been passed without following the procedure prescribed under Sections 133, 137, 138, 139 and 140 CrPC, and that the revenue authorities had submitted a false report in collusion with respondent no. 2. Both courts below, he submitted, had failed to consider the factual position in light of the statutory framework.
The State and respondent no. 2 opposed the petition, contending that the impugned orders were well-reasoned and passed in accordance with law.
The Statutory Framework: Sections 133 and 137 CrPC Read Together
The court set out the text of Sections 133, 137, 138, 139 and 140 CrPC in full before analysing the scheme they create together.
Section 133 CrPC empowers a District Magistrate, Sub-Divisional Magistrate, or specially empowered Executive Magistrate to pass a conditional order for removal of a nuisance or obstruction from any public place or any way that is or may be lawfully used by the public. The court noted the Supreme Court's observation in Municipal Council, Ratlam v. Vardhichand and Ors. that the power under Section 133 is a public duty, and the Magistrate must exercise it when the jurisdictional facts are present.
Section 137 CrPC requires the Magistrate, once the person against whom the conditional order is made appears, to ask whether that person denies the existence of any public right over the way or place in question. If such denial is made, the Magistrate must hold an inquiry. If the Magistrate finds “any reliable evidence” in support of the denial, proceedings must be stayed and the parties referred to a competent civil court. If no reliable evidence is found, the Magistrate proceeds under Section 138 to take evidence as in a summons-case and, if satisfied, makes the conditional order absolute.
The court drew on this Court's earlier decision in Wali Uddin v. State of U.P., 1988 (12) ACR 1, which had explained that the word “inquire” in Section 137(1) does not mean adjudicate or decide, and that the standard is “reliable evidence” in support of the denial, not conclusive evidence. The court in the present case reiterated that the proceedings under Section 133 CrPC are summary in nature, meant for cases of imminent danger to public tranquillity, and should not be used to override the property rights of an owner where reliable evidence of a private claim exists.
The court also referred to the Delhi High Court's ruling in Shri Ram Lal and Another v. Shri Dharam Vir, 2001 Cri.L.J. 4507, which had held that Section 133 CrPC provides a summary remedy for removal of specific public nuisances and is not intended to settle private disputes between two individuals. The expression “which is or may be lawfully used by the public” in Section 133 requires only that the land in dispute be a public way that can lawfully be used by the public; the title of the place need not vest in the public.
The Admission That Decided the Case
The court's analysis turned on the petitioner's own written objection dated 24 November 2023 filed before the SDM, Hata. In paragraph 2 of that objection, the petitioner had specifically admitted the existence of a two-foot-wide street or gali between his house and the house of respondent no. 2. In paragraph 3, he stated that he had not raised any stairs and that the street was completely vacant. In paragraph 4, he stated that the stairs had been constructed 30 years ago in his courtyard. In paragraph 5, he stated that the street was not used as a public pathway but only for the flow of rainwater.
The court found that the admission of the existence of a two-foot-wide street between the two houses was, in itself, an admission of a public pathway. The petitioner's own statement that rainwater flowed through the street reinforced this conclusion: a channel used for rainwater drainage cannot be obstructed. The court also noted that the petitioner's statement in paragraph 6 that the street was completely vacant indicated that it was being used as a public pathway.
Because the petitioner had admitted the existence of the street, the court held that the Executive Magistrate was not under any obligation to hold a formal inquiry under Section 137 CrPC. The jurisdictional precondition for that inquiry which i a denial of the existence of a public right supported by reliable evidence was not met when the petitioner's own pleading acknowledged the street's existence.
The court further noted that the SDM had personally visited the spot on 6 November 2024 and recorded his findings in the order dated 12 November 2024. Relying on the Supreme Court's observations in State of Maharashtra v. Admane Anita Moti, (1994) 6 SCC 109, and Bhagwati Prasad v. Delhi State Mineral Development Corpn., (1990) 1 SCC 361, the court held that factual recitals in a judicial or quasi-judicial order are presumed correct unless rebutted. The petitioner had not rebutted the SDM's recorded finding of the spot inspection. The Revenue Inspector's report dated 14 October 2024 and the accompanying site plan, available on the record as Paper No. 49, also confirmed that stairs had been constructed in the street between the two houses, blocking the public pathway.
Scope of Article 227 Jurisdiction
The court addressed the limits of its own jurisdiction under Article 227 before concluding. It referred to the Supreme Court's decisions in Chandra Bhushan v. Beni Prasad and Ors., (1999) 1 SCC 70, and Savitrabai Bhausaheb Kevate and Ors. v. Raichand Dhanraj Lunja, (1999) 2 SCC 171, for the proposition that the power of judicial superintendence under Article 227 cannot be used to upset conclusions of fact, however erroneous, unless those conclusions are so perverse or unreasonable that no court could ever have reached them.
The court also cited Indian Overseas Bank v. Indian Overseas Bank Staff Canteen Workers' Union, (2000) 4 SCC 245, for the position that a writ court cannot re-appreciate evidence and draw its own conclusions on pure questions of fact, as it is not exercising appellate jurisdiction. Findings of fact recorded by a fact-finding authority, as long as based on some relevant material, are not to be disturbed.
In Jasbir Singh v. State of Punjab, (2006) 8 SCC 294, the Supreme Court had held that the power under Article 227 is to be exercised most sparingly and only in appropriate cases to keep subordinate courts within the bounds of their authority, and does not permit the High Court to intervene in the judicial functions of the lower judiciary.
Applying these principles, the court found that both the SDM and the Revisional Court had passed reasoned and speaking orders reflecting due application of judicial mind. The Additional Sessions Judge had considered all the grounds raised in the criminal revision and found no illegality in the SDM's order. No perversity or illegality was found in either impugned order.
Order
The High Court dismissed the writ petition filed under Article 227 of the Constitution of India as devoid of merit. The order dated 12 November 2024 passed by the SDM, Hata, Kushinagar directing removal of the encroachment, and the order dated 19 March 2025 passed by the Additional Sessions Judge/Special Judge, SC/ST Act, Kushinagar at Padrauna rejecting the criminal revision, were left undisturbed.