1. I see no reason whatever for interfering with the Magistrate's order which is a most proper one, and a reference to the terms of Section 133 would make that absolutely clear. The person on whom notice was issued to show cause why the obstruction should not be removed set up at the outset what has been found to be a false case, that he has only re-constructed the chabutra on an old foundation. It is found in fact that there was no old chabutra on the site of the new construction. It is most manifest on the facts found that what has happened is this: There was a tiny little portion of chabutra, which the plan clearly indicates was itself an obstruction, which the proper authorities would have been entitled to have removed. Having kept that there for some time he has now extended it on either side along the whole length of the frontage wall. On the one side of the tiny portion of the chabutra previously existing the encroachment extends to no less a length than 174 ft. and on the other side 62 ft. and apparently the width of the chabutra is 8 ft. It would not make the smallest difference in principle if it was 8 inches or if the encroachment was only by the addition of a single brick. It is by adding brick to brick that these sorts of encroachments are habitually successfully carried, though Section 133 authorizes an order to remove
any unlawful obstruction from any way which is or may be lawfully used by the public or from any public place.
2. There can be no question on the findings that the site occupied by the present extension is a public way and is a public place and is ground which may be lawfully used by the public. The fact that in the particular case the public may have lot of room to go along the road without needing to walk upon that particular site has nothing whatever to do with the case. They are entitled to walk along that site if they wish. The opposite party here if allowed to maintain the chabutra would, of course, immediately set up that it was his chabutra and exclude the public. But even if he did not do so the public have a right to walk on that portion of the ground which the opposite party has covered with his chabutra. On this ground, and this ground alone, the Magistrate's order would be justified. He has in my view unnecessarily strengthened his order by pointing out that the P.W.D. are entitled to use the site for taking away material to repair the road. It is true that they are so entitled, but it would not make the least difference to the case if it were shown beyond doubt that they never would want to remove any soil from that site. The issue was perfectly simple and the facts show that the opposite party has deliberately encroached upon land which is public way, and his obstruction of it is unlawful, and the Magistrate's order directing its removal is a proper order. It is not necessary for me to say anything in the present case whether as the plan suggests the so-called original portion of the chabutra is also an unlawful obstruction or not, but nothing that I have said in this judgment must be taken to suggest that is an old chabutra and that the public road authorities cannot secure its removal. The reference is rejected. Let the record be returned.