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2019 DIGILAW 1658 (HP)

Punjab Singh v. Kamla Devi

2019-11-06

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. 1. The present petition has been maintained by the petitioner/accused under Section 482 of the Code of Criminal Procedure for quashing and setting aside the order dated 31.1.2018 passed by the learned Sessions Judge, Hamirpur, H.P. in Cr. Revision No. 17 of 2016 and order dated 18.05.2016 passed by the learned Sub Divisional Magistrate, Nadaun, in case No. 3 of 2016. 2. Briefly stating the facts, giving rise to the present petition are that the complainant (hereinafter to be referred as ‘the respondent’) filed a complaint under Section 133 of the Cr.P.C. before the Gram Panchayat, Kotla Chillian, against the revisionist opening the path blocked by the revisionist by way of stacking bricks and it was very difficult to pass through the path animals or even any dead-body. The Panchayat had referred the complaint to the learned Sub Divisional Magistrate, Nadaun, District Hamirpur, H.P. who sent the case file to the police. The Police, after investigation, prepared Kalandra and forwarded the same to the S.D.M. concerned, but the revisionist did not join the proceedings and despite the intervention of the Pradhan, Gram Panchayat and the police, the revision petitioner refused to open the path. The learned trial Magistrate passed the impugned order directing the parties to get the land comprised in Khata No. 117, Khatoni No. 120, Khasra No. 71, measuring 2K-17M partitioned, which is stated to be "Gairmumkin Abadi" in which the complainant was having 1/4th share and revision petitioner is having 1/30 share and also directed the petitioner not to block the path and maintain peace till partition of the land. 3. Feeling aggrieved and dissatisfied, the petitioner filed the present petition on the ground that the impugned orders are against the facts and law and based on surmises and conjectures and no path has been blocked by the revisionist, as there is alternative path available to the respondents on backside of the house of the petitioner, whereas the respondents are claiming path through his courtyard. The respondents have no right to claim path through his courtyard, hence, the impugned orders are unjust, unfair and the learned Magistrate has wrongly and illegally ordered the petitioner not to block the path. 4. I have heard the learned Counsel for the parties and gone through the record carefully. 5. The respondents have no right to claim path through his courtyard, hence, the impugned orders are unjust, unfair and the learned Magistrate has wrongly and illegally ordered the petitioner not to block the path. 4. I have heard the learned Counsel for the parties and gone through the record carefully. 5. Shri Y. Paul, learned counsel for the petitioner, has argued that the impugned orders are based on surmises and conjectures and the learned Trial Magistrate has passed the order without affording an opportunity of being heard and prayed for setting aside the order, as there is alternative path available to the complainant/respondents from backside of the house and the petitioner has not blocked the path. 6. On the other hand, Mr. Ramakant Sharma, learned Counsel for respondents No. 1 and 2 has argued that the learned Trial Magistrate has rightly passed the impugned order. Similarly the learned Additional Advocate General, appearing on behalf of respondent No. 3 argues that the order passed by the Courts below is in accordance with law. 7. Learned counsel appearing for the petitioner/applicant has argued that it is no where shown that it was a public path and once the path is not public path, the Magistrate has no jurisdiction. To support his arguments, he has submitted that the path leads only to the house of the respondent and as alleged, it cannot be said to be a public path and prays for quashing of the orders passed by the Courts below. 8. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail. 9. At the very outset, this Court has gone through the photographs, as shown to this Court, which shows that the petitioner has dig a small pit just near the alleged path and has stacked the bricks in the middle of the path blocking the same. The case of the petitioner is that the path goes only to the house of the respondent and it is not a public path and if at all there is any cause of action, a civil suit will lie and there is other public path from the backside to the house of the petitioner. On the other hand, the case of the respondent is that there is no other path. The petitioner has not joined the proceedings before the learned Trial Magistrate. On the other hand, the case of the respondent is that there is no other path. The petitioner has not joined the proceedings before the learned Trial Magistrate. In the investigation by the police, the path, in question, was found blocked by the petitioner by stacking bricks and the witnesses whose statement was recorded by the learned Magistrate has also stated so. Since the path used by the public at large visiting the house of the respondent cannot be said that it is a private path only. Even otherwise also, the path, which is used by the respondent, the petitioner has no right to block it by stacking the bricks. If at all, there is any cause to the petitioner, he can take recourse in accordance with law and he cannot block the path in question by using force. Section 133 of the Code of Criminal Procedure, is clear, which reads 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 of 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. (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. (c) that the construction of any building, or, the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped. (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. (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. (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. (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. (iii) to prevent or stop the construction of such building, or to alter the disposal of such substance. (iv) to remove, repair or support such building, tent or structure, or to remove or support such trees. (v) to fence such tank, well or excavation. (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 re-creative purposes." 10. Applying the aforesaid law upon the basic facts of the present case, as there was a public path, which is blocked by the petitioner, this Court finds that the Courts below have committed no illegality or irregularity while passing the impugned orders and the present petition, which is devoid of merits, deserves dismissal and is accordingly dismissed. 11. Pending applications if any, shall also stand disposed of accordingly.