LAHORE: The Lahore High Court has observedthatevenifastreetorapassageis not a declared public street in the revenue record, a public passage could still come into existence following its use by the generalpublic.

And a district or a sub-divisional magistrate can invoke powers under section 133 of Code of Criminal Procedure (CrPC) for the removal of nuisance or blockade of a pubhcthoroughfare.

Justice Muhammad Shan Gul has made these observations in a verdict issued on a petition challenging decision of two lower courts wherein an order of an area magistrate to restore and open a public passage for use of public was upheld.

Some residents of an area in Dera Ghazi Khan complained to the magistrate under section 133 CrPC that a public thoroughfare was in the use of residents to approach a local mosque but that a person namely Ghulam Siddique (who challenged the magistrate`s order) blocked that right of way by constructing small walls on the said right of way.

The magistrate in light of the reports from local patwari and the police orderedthe SHO concerned to restore the public way.

After dismissal of his petition and an appeal by the sessions courts, Siddique approached the LHC pleading that the magistrate had no right to exercise powers under section 133 CrPC to open a thoroughf are not registered in the revenue record.

However, Justice Gul in his verdict, observes that reports of the revenue department clearly establish the presence of a right of way used in the past by the public in general and residents of the area in particular for reaching the mosque.

Besides this, he notes that Article 20 of the Constitution allows every citizen the right to profess and practice religion and all executive authorities in Pakistan are obliged to facilitate the enforcement of such right.

The judge says for the applicability of section 133 CrPC, the right of way from which a nuisance is sought to be removed must be one which is or may be usefully used by the public. He explains that a thoroughfare is a place where the public go irrespective of whether they have a right to go or not.

He observes that the department`s reports show that the public right of way in question did indeed lead the faithful tothe mosque in the area. He notes that the public in general used this right of way to reach the mosque as also for other purposes.

Justice Gul holds that the use of land in question as a public right of way and its obstruction by construction of walls from three sides stands proven and the claim of non-existence of such right of way has not been established.

`Once the consistent use of the land as a public right of way is established, there remains no question of whether such land reflects as a public way in the land record or not,` he adds.

The judge maintains that the consistent use of such a piece of land by the public necessitates an order under section 133.

The judge observes that there was ample justification for the courts below to come to a tentative conclusion that the causeway in question did exist and was being used by the public in general.

And the same having been blocked by the questionable and irregular exercise undertaken by the respondent, the courts below were justified to decide, by way of a conditional order, to open the public passage to the public in general, the judge writes in the verdict dismissing the petition.