Himachal Pradesh High Court
Reserved On: 23.04.2025 vs Dharmender @ Dharam Singh And Others on 5 May, 2025
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 282 of 2024
Reserved on: 23.04.2025
Date of Decision: 05.05.2025
Sanjana Kumari and others ...Petitioners
Versus
Dharmender @ Dharam Singh and others ...Respondents
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioners : Mr. Arvind Sharma, Advocate.
For the Respondents : M/s Navlesh Verma and Saloni Nee
Susham Lata, Advocates.
Rakesh Kainthla, Judge
The petitioners have filed the present petition
against the judgment dated 18.11.2023, passed by the learned
Additional Sessions Judge, Sundernagar, District Mandi, H.P.
(learned Revisional Court), vide which the order dated
19.11.2016, passed by the learned Sub Divisional Magistrate,
Sundernagar, District Mandi, H.P. (learned Trial Court) was set
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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aside. (Parties shall hereinafter be referred to in the same manner as
they were arrayed before the learned Trial Court for convenience.)
2. Briefly stated, the facts giving rise to the present
petition are that the complainants filed a complaint before the
learned Sub Divisional Magistrate, Sundernagar, District Mandi,
H.P., asserting that a road was constructed under MGNREGA.
The respondents erected barbed wire and obstructed the road.
The complainants requested the respondents to remove the
obstruction, but in vain. Hence, the complaint was filed before
the Court.
3. Learned Sub Divisional Magistrate sent the
complaint to the Station House Officer (SHO) for investigation,
who submitted a report that the respondents had erected a
barbed wire and did not remove it despite persuasion of the
panchayat officials. Hence, the case under Section 133 of CrPC
was made out.
4. The learned Trial Court passed an order for the
issuance of the notice to the respondents. The respondents
appeared and filed a reply, taking preliminary objections
regarding lack of jurisdiction, the notice being bad, and the
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complaint having been filed without any basis. The contents of
the complaint were denied on merits. It was asserted that the
path belongs to the respondents and is in their use and
occupation. The house of the complainants is located adjacent to
the Dhanotu-Karsog Road, and they used the same road to reach
their house. The respondents used their path to visit their house.
They fenced their land. The road was constructed in Khasra Nos.
291 and 521. Khasra No. 486, which belongs to the complainant,
is located adjacent to Khasra No. 521. Khasra No. 485/1, owned
by the respondents, is located adjacent to Khasra No. 291. The
other inhabitants had no right to use the passage. Therefore, it
was prayed that the complaint be dismissed.
5. A rejoinder denying the contents of the reply and
affirming those of the application was filed.
6. The parties were called upon to produce the evidence.
The complainants examined Sanjana Kumari (PW1),
Bhuwaneshwar (PW2), Ram Krishan (PW3), Naresh Kumar
(PW4), HC Pawan Kumar (PW5), Hira Lal Thakur (PW6), and
Chander Prakash Singh (PW7). Respondents examined
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Dayawanti (RW1), Dila Ram (RW2), Chuha Ram (RW3) and
Dharmender Kumar (RW4).
7. Learned Trial Court also called for the report of the
Tehsildar.
8. Learned Trial Court held that the passage was
constructed under MGNREGA. Affidavits were executed by the
respondents. The path in Khasra No. 485/1 was recorded as the
Gair Mumkin path, which was made pucca by the Gram
Panchayat. Hence, the same falls within the definition of a
public path. Respondents blocked the path without any right to
do so. Therefore, the learned Trial Court directed the
respondents to remove the obstruction.
9. Being aggrieved by the order passed by the learned
Trial Court, the respondents filed a revision which was decided
by the learned Additional Sessions Judge, Sundernagar (learned
Revisional Court). Learned Revisional Court held that the
jurisdiction under Section 133 can be invoked in respect of a
public path. The complainants/applicants belonged to one
family. None of the villagers or members of the general public
was involved in the dispute. The land was owned and possessed
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by the respondents. The complainants had no right to use the
land of the respondents as a public path. The learned Trial Court
erred in ordering the respondents to remove the obstruction.
Consequently, the order passed by the learned Trial Court was
set aside.
10. Being aggrieved by the order passed by the learned
Revisional Court, the complainants have filed the present
petition asserting that the learned Revisional Court erred in
setting aside the order passed by the learned Trial Court. It was
wrongly held that the dispute between the parties was a private
dispute. Residents had executed affidavits agreeing to the
construction of the path over their land. The path was being
used by the public, and the respondents had no right to obstruct
the path. Therefore, it was prayed that the present petition be
allowed and the order passed by the learned Trial Court be set
aside.
11. I have heard Mr. Arvind Sharma, learned counsel for
the petitioners and M/s Navlesh Verma and Saloni Nee Susham
Lata, learned counsel for the respondents.
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12. Mr. Arvind Sharma, learned counsel for the
petitioners (original complainants), submitted that the learned
Trial Court had rightly held that the path was public and the
respondents had no right to block it. Learned Revisional Court
erred in holding that the path was private. It was constructed
under MGNREGA. The respondents had executed an affidavit
agreeing to the construction of the path, and they have no right
to block the path. Therefore, he prayed that the present petition
be allowed and the order passed by the learned Revisional Court
be set aside.
13. Mr. Navlesh Verma, learned counsel for the
respondents, submitted that the path was constructed over
Khasra No. 485/1, and the affidavits relied upon by the
complainant relate to Khasra Nos. 483, 484 and 493. There is no
affidavit regarding Khasra No. 485. Khasra No. 485 is owned by
the respondents, and the path over it is a private path, which is
apparent from the entry in the revenue record. Therefore, he
prayed that the present petition be dismissed.
14. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
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15. Section 133 of Cr.P.C. provides as under: -
"133. Conditional order for removal of nuisance.
(1) Whenever a District Magistrate or Sub-Divisional
Magistrate or any other Executive Magistrate specially
empowered in this behalf by the State Government, on
receiving the report of a police officer or other informa-
tion and on taking such evidence (if any) as he thinks fit,
considers -
(a) ...
(b) .....
(c) ....
(d) ....
(e) ....
(f)......
Such Magistrate may make a conditional order requiring
the person causing such obstruction or nuisance, or car-
rying on such trade or occupation, or keeping any such
goods or merchandise, or owning, possessing or control-
ling such building, tent, structure, substance, talk well or
excavation, or owning or possessing such animal or tree,
within time to be fixed in the order-
(i) To remove such obstruction or nuisance; or
(ii) ......
(iii)...
(iv)...
(v) ...
(vi)...
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."
16. It is apparent from the bare perusal of this Section
that when an information is received by the learned Magistrate
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from the police or somewhere else, he has to satisfy himself that
the information relates to the situation contemplated in Section
133 of Cr.P.C. and pass a conditional order requiring the person
obstructing to remove such obstruction or nuisance and if he
objects to do so, to appear before him or any Magistrate
subordinate to him. Section 135 provides that the person to
whom an order is addressed can perform the act directed in the
order, or he may appear and show cause against the same.
Section 137 provides that where the existence of a public right is
denied, an inquiry would be made. Section 138 provides that
when the person shows cause, the Magistrate shall take evidence
in the same manner as in the summons case. Section 138 (2)
provides that where the Magistrate is satisfied that the order
either originally made or subject to such modification as he
considers necessary is reasonable, the order shall be made
absolute without modification or with such modification.
17. It is apparent from the scheme of these Sections that
conditional order is the foundation on which the whole
proceedings rest. If the person to whom the conditional order is
directed accepts the order and complies with it, the proceedings
terminate, but if he feels aggrieved and shows cause, the inquiry
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has to be conducted and the order can be made absolute,
modified or discharged after the inquiry. Thus, the existence of
conditional order is necessary before it can be made absolute,
modified or discharged. The purpose of passing the conditional
order is to make the other party aware of the nature of the order
that can be passed in the proceedings. Therefore, it puts the
other party on notice of the ultimate order and forms part of
natural justice.
18. In the present case, the learned Magistrate did not
pass any conditional order. He passed an order in Hindi, which
freely translated into English, reads as under:-
"Report under Section 133 of Cr. P.C. was received from the
In-charge, Police Station BSNL Colony, Sundernagar. It was
revealed from the report that the common passage of the
respondents and the complainants was constructed under
MGNREGA, which was obstructed by the respondents by
erecting barbed wire. Hence, the notice under Section 133
CrPC be issued against the respondents returnable for
11.10.2010.
19. It was laid down by the Allahabad High Court in
Mangal and others v. State of U.P. and others, 1977 Cri. L. J. 1036
that passing of a conditional order is essential to initiate
proceedings under Section 133 of the CrPC. It was observed: -
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4. In my opinion, there is force in this submission.
According to S. 133 (1) whenever a District Magistrate or a
Sub-divisional Magistrate or any other Executive
Magistrate specially empowered in that 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 that any unlawful
obstruction or nuisance should be removed from any
public place or from anyway, river or channel which may
be lawfully used by public etc., he may make conditional
order requiring the persons causing such obstruction to
remove the same within the time stated in the order or in
case they object to the order, they should appear before
him or some other executive Magistrate subordinate to
him at a time and place stated in the order and to show
cause as to why the order be not made absolute. So far as
the first order passed by the Sub-Divisional Magistrate on 11-
5-1976 is concerned. It was merely a direction that an order
under Ss. 133 and 142 of the Code of Cr. Procedure be drawn
upon. It is apparent that it was not the formal order under
S.133, which had yet to be drafted and signed by him. Coming
now to the actual notice issued to the applicant in
pursuance of the aforesaid order made by the Magistrate,
I find that it merely recites the reason for and the
direction issued under S. 142 of the Code. It states that
whereas an enquiry into a conditional order made under
S. 133, Cr. P. C. is pending, and the information received
by the Magistrate showed that an unlawful obstruction or
nuisance had been made, which was causing imminent
danger of a serious type to the public, and such danger
had to be prevented; accordingly order under S. 142, Cr. P.
C. requiring the applicant to demolish the said
construction that was being made. On the face of it, this
order does not partake in the nature of an order which is
to be made under S. 133, Cr. P. C, It is not in the nature of a
conditional order requiring the applicant either to do
something within the time specified therein or to show
cause. It appears that the Magistrate passed the order
requiring the Officer to draw up an order under S. 133, Cr.
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P. C. and expected that the officer would draw up such an
order for him and place the same for his signature. This,
in my opinion, was not in accordance with the law.
5. Learned counsel for the opposite parties urged that in
the notice issued to the applicant on the same date, it was
mentioned that the applicant had encroached upon the
public way by raising a wall. Accordingly, it cannot be
denied that the learned Magistrate had formed an opinion
that the obstruction by way of encroachment had been
made on a public way and that it deserved to be removed
Requirement of S. 133, Cr, P. C., therefore, had been
substantially complied with and no interference in
revision is called for. I am unable to accept this
submission. In the first place, the notice copy of which
has been filed as Annexure 3 cannot be equated with an
order under S. 133 Cr. P. C. Aforementioned facts were
recited merely to indicate the circumstances in which an
order under S. 142, Cr. P. C. was being passed. In any case,
even if the order dated 11th May 1976 is read along with
the notice prepared on 11th May 1976, it would still not
comply with the remaining requirements of S. 133 of the
Code of Cr. Procedure, namely that the applicants should
have been told that they could appear before the court on
the date and place fixed by it and file such objection to the
conditional order as they liked. There is no escape from
the position that, in this case, no proper order under S.
133, Cr. P. C. has been issued.
6. At this stage, I would like to point out that in order to
facilitate the passing of orders under S. 133, guidance has
been provided in the shape of Form No. 20, appended to
Sch. II of the Code of Cr. Procedure. The subordinate
courts would do well to keep the form in mind while
passing an order under S. 133 of the Code of Cr. Procedure.
20. In the present case, no conditional order was passed,
and the proceedings could not have been initiated under Section
133 of Cr.P.C. without the conditional order.
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21. Learned Trial Court held in para 20 of its order that
the path is in Khasra No. 485/1, which was recorded as Gair
Mumkin path in the revenue record. It was also held that the
path was constructed under MGNREGA, and it falls within the
definition of a public path. This finding is not correct. A perusal
of the affidavits executed by Mayadhar and Harish shows that
they had agreed to the construction of the road under MGNREGA
over Khasra Nos. 484 and 493. Raghunath agreed to the
construction of the road over Khasra Nos. 483 and 493.
Therefore, the respondents never agreed to the construction of a
road over Khasra No. 485.
22. Learned Trial Court also held that Khasra No. 485/1
was recorded as Gair Mumkin Rasta; however, it failed to notice
that it was owned and possessed by the respondents and other
persons and not by the general public. There is a distinction
between Gair Mumkin Rasta and Sare Aam Rasta, which was
overlooked by the learned Trial Court.
23. Learned Revisional Court had rightly noticed that
Hira Lal Thakur, Tehsildar (PW6), admitted in his cross-
examination that Khasra No. 485 is owned by the respondents.
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Therefore, the complainants were required to show the
respondents' consent before using their land.
24. Chander Prakash Singh, Junior Engineer, stated in
his cross-examination that he was unaware of the ownership of
Khasra No. 485/1. He admitted that there was no affidavit
regarding the construction of the road on Khasra No. 485/1, and
affidavits were executed regarding Khasra Nos. 484, 493 and
494. Therefore, the learned Trial erred in holding that the path
was constructed under MGNREGA over Khasra No. 485. There
was no such evidence on record, and this finding was without
any evidence.
25. Learned Revisional Court was right in holding that
the jurisdiction under Section 133 of the Cr. P.C. cannot be
exercised regarding a private path. Since there was insufficient
evidence to show that the path was public; therefore, the learned
Revisional Court had rightly set aside the order passed by the
learned Trial Court.
26. It was submitted that wrong affidavits were executed
and wrong benefit was derived by the respondents. This
submission will not help the petitioners. The respondents had
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consented to the construction of a path over Khasra Nos. 483,
493 and 494, and there is no evidence that the path was not
constructed over these khasra numbers. Therefore, the
submission that the wrong affidavits were executed by the
respondents is not acceptable.
27. No other point was urged.
28. Therefore, there is no infirmity in the order passed
by the learned Revisional Court justifying the interference of this
Court while exercising jurisdiction under Section 482 of the
CrPC.
29. Consequently, the present petition fails, and the
same is dismissed.
(Rakesh Kainthla)
Judge
5th May, 2024
(Chander)
