No one has the right to encroach on a public road and stop its access. This is an illegal act and the trespasser is committing an offence. It is the responsibility of the government to protect public property. Therefore, the code of criminal procedure has made procedures to prevent the public nuisance arising due to encroachment.
Section 145 of the code of criminal procedure empowers the executive magistrate to prevent any nuisance caused due to encroachment on public property. The magistrate and take a bond from the trespasser under Section 107 of the code of criminal procedure for keeping peace. The executive magistrate has vast power under section 145 CRPC.
You should move an application before the sub divisional magistrate or a Deputy Collector against such an encroachment. The SDM will call a report from the local police station about the incident. You can also register a case against the trespasser under section 268 of the Indian penal code for causing public nuisance.
Provisions of the Police Act also give power to the local police officer to prevent any kind of encroachment on public property. It is the responsibility of the officer in charge of the police station to see roads and streets are not blocked by any person. If a person has blocked the public road the police officer shall register a case against him.
Case laws
In Smt. Ramawati vs State Of U.P. and 2 Others 2015; The Allahabad High Court has held that public property belongs to the entire public and everyone has right to access on every inch of the public road. Nobody has the right to encroach or block public streets, roads or footpaths.
In Ahmedabad Municipal Corporation vs. Nawab Khan Gulab Khan [(1997) 11 SCC 121] the Supreme Court of India has opined that footpath, street or pavement are public property which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public roads.
No one has a right to make use of a public property for their private purpose without the requisite authorisation from the competent authority. It would, therefore, be the duty of the competent authority to remove encroachment on the pavement or footpath of the public street obstructing free flow of traffic or passing or repassing by the pedestrians.
In Hari Ram vs. Jyoti Prasad and Anr. [(2011) 2 SCC 682]; the Supreme Court has held that Any act of encroachment is a wrong committed by the doer. Such an encroachment when made to a public property like encroachment to public road would be a graver wrong, as such wrong prejudicially affects a number of people and therefore is a public wrong. So long any obstruction or obstacle is created to free and unhindered access and movement in the road, the wrongful act continues thereby preventing the persons to use the public road freely and unhindered. Therefore, that being a continuing source of wrong and injury, cause of action is created as long as such injury continues and as long as the doer is responsible for causing such injury.
