Abhay Singh vs Shish Pal Singh

S.C. Malte, J.

The petitioner has taken exception to the judgment dated 11.1.1996 passed by Additional Sessions Judge, Ambala, by which he has set aside the order passed by the Executive Magistrate under Section 133 of the Criminal Procedure Code against the respondent on the allegation that the respondent, by raising the wall on two sides of a public lane, had closed the lane, and thereby he has prevented the petitioner from using that lane for going to his land. In the petition it is indicated by him that the said lane was being used by the public for going for answering the natural call.

The SubDivisional Magistrate visited the spot and made a note of spot inspection. He has also considered the location of the lane, and he arrived at the conclusion the lane in question is a public lane, and the respondent was not justified in obstructing it by raising the wall on both sides of the lane.

At this juncture, it would be convenient to indicate the location of the lane and the houses nearabout. The counsel for the petitioner has placed before me a xerox copy of the location. For the purpose of understanding the arguments advanced on behalf of both sides, I took help of that map. To the west of the respondent''s house there is an area which is a disputed lane. On the other side of the lane is the house of one Amar Nath. To the north there is a square and the lane opens in that square also. On the eastern and northern sides of the square there are houses. There is one public road to the west of the square (chowk). The map indicates that the lane in question opens towards the agricultural land belonging to the petitioner. Besides that, that lane also appears to be an approach towards ''Zohar'' (water pond). It is not disputed that this ''Zohar'' is a public place where water tank is situated.

The Sub Divisional Magistrate after taking into consideration the result of his spot inspection and the evidence collected concluded that the lane in question is a public lane and the respondent was not justified in closing that lane by raising wall on both ends of the lane. He, therefore, directed the respondent to remove unauthorized construction within 15 days failing which he would face penalty at the rate of Rs. 250/ per year. Against that order, dated 22.7.1991 the respondent preferred a revision before the Sessions Court. The Additional Sessions Jude was of the view that the lane in question was being used by the petitioner for approaching his land, and, therefore, it cannot be said to be a public lane. He further observed that since the present respondent had raised the dispute that the land in question is a property belonging to him, it was obligatory on the part of the Sub Divisional Officer to undertake an enquiry under Section 137 of the Criminal Procedure Code before taking any action under Section (sic) of the Criminal Procedure Code. He, therefore, allowed the revision and set aside the order passed by the Sub Divisional Magistrate, Ambala.

Counsel for the petitioner submits that in view of the evidence before the Court and spot inspection notes by the Sub Divisional Magistrate, Ambala, it is obvious that it is a public lane, and the obstruction created by the respondent should have been ordered to be removed under Section 133 of the Criminal Procedure Code.

Counsel for the respondent, on the other hand, submitted that a portion of the lane belongs to the respondents and that portion was not a public lane as contended by the petitioner.

The Sub Divisional Magistrate, Ambala, has taken into consideration the evidence led by the petitioner to the effect that the walls in question have been constructed by the respondent about 5 to 6 months ago. The evidence led by he petitioner, on the other hand, indicates that the construction was of about 4 to 5 years ago. In view of the discrepancy, the Additional Sessions Judge was of the view that the evidence led by the petitioner was not reliable. While arriving at that conclusion the Additional Sessions Judge, however, forgot to consider the result of the spot inspection made by the Sub Divisional Magistrate, Ambala, on 22.7.1991. It indicates that the Sub Divisional Magistrate, Ambala, noted that the walls raised for closing the lane were constructed recently and even the debris of the walls which the respondent had to pull down for the purpose of joining lane to his house was lying there. This spot inspection note clearly indicates that construction of the wall in question had been done subsequent to the original construction of the house of the respondent. The question, however, would be as to whether the portion of the lane can be said to belonging to the respondent. In the proceedings under Section 133, such question cannot be finally adjudicated and that would be a matter for adjudication by the civil Court. Nonetheless when bona fide claim is made that a portion of the land in question is owned by the respondent, and if there is a prima facie proof is support of it, then the Magistrate would be justified in not taking the action under Section 133 Cr.P.C. Section 133 Cr.P.C. empowers the Magistrate to ascertain whether an obstruction to the public place has been caused. He is empowered to order to remove such obstruction by serving a notice on the person causing such obstruction. That would be a conditional order requiring the person causing such obstruction to remove it within a particular period. The conditional order should further indicate that if the person thus ordered has any objection, he should appear before the Executive Magistrate at a time and place to be fixed by the order, and show cause as to why such a conditional order should not be made absolute. It is only thereupon that the role of Section 137 of the Cr.P.C. comes into play. If such a person appears before the Executive Magistrate in response to the conditional order thus passed under Section 133, the Executive Magistrate is required to proceed to consider the evidence as regards the claim made by the respondents. Clause (2) of Section 137 further provides that on enquiry the Magistrate has to find out from the reliable evidence as to whether the place in dispute is a public place, or area or portion belonging to a particular person as its private property. For ascertaining that aspect, he is empowered to proceed under Section 138 Cr.P.C. which gives power to record the evidence before him in respect of the ownership of the property in question. If the magistrate is satisfied that the original conditional order is reasonable and proper, he shall make that order absolute either as it is, or with modification, as the case may be. In this case the petitioner has contended that the land in question belongs to him. The Magistrate while passing the impugned order has called upon the respondent to remove obstruction within 15 days failing which a penalty of Rs. 250/ per year would be imposed. The counsel submits that that order came to the passed after the conditional order was passed. The counsel for the respondent, however, claims that no such conditional order was passed. In support of that he placed before me a notice received by the respondent. The bare perusal of that notice clearly indicates that it was a conditional order as contemplated under Section 133 of the Criminal

Procedure Code.

The Additional Sessions Judge was of the view that provisions of Section 133 cannot be extended for removing the obstraction to a private passage or lane. That observation was not correct in view of the material on record. The Additional Sessions Judge failed to take into consideration the spot inspection report of the Sub Divisional Magistrate. He also failed to take into consideration that the lane in question is an approach lane not only the lands of the petitioner but also an approach lane for the water pond on that side for. I, therefore, find that the judgment given by the Additional Sessions Judge cannot be sustained. Hence, the revision is allowed. The judgment passed by the Additional Sessions Judge, Ambala on 11.1.1996 is hereby set aside and the original order passed by the Sub Divisional Magistrate, Ambala, is hereby restored.

Revision allowed.