Ajaib Singh vs Sant Singh

P.K. Jain, J.

This revision is directed against the order dated 29.10.1992 passed by the Additional Sessions Judge, Patiala, whereby the order dated 8.1.1992 passed by the Sub Divisional Magistrate thereby directing the respondents Sant Singh and Amar Kaur to remove the encroachment on the common path in village Kallar Bhaini, has been set aside and the application filed under section 133 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'') by the present petitioners has been dismissed.

The facts necessary for the disposal of this revision are that during consolidation proceedings in village Kallar Bhaini, Tehsil and District Patiala, a passage was left to the land of the petitioners comprised in Khasra No. 271/2, 268/2 and 267/2/2, but it was not found to be fit for use due to low lying area (Chappar). The petitioners moved the Settlement Officer for modification. The appeal was accepted vide order dated 4.10.1993 and the path was realigned after directing that some land be taken from the area of shamlat then the in possession of Gurdev Singh and some area of Smt. Amar Kaur for which she would be compensated by the area from the shamlatdeh. This path was incorporated in the revenue record and mutation was also sanctioned.

On 30.4.1990, the petitioners filed an application under section 133 of the Code before the Sub Divisional Magistrate, Patiala, alleging therein that the respondents had encroached upon the said path given to them in consolidation proceedings and they have failed to vacate the same inspite of the repeated demands. It was also alleged that this path is meant for common purposes.

Notice was given to the respondents. Smt. Amar Kaur remained ex parte. Sant Singh respondent opposed the petition. Enquiry was not conducted through the Tehsildar. Thereafter a conditional order was passed. After taking evidence, the Sub Divisional Magistrate passed the order dated 8.1.1992 directing the respondents to remove the encroachment made by them upon the common path.

Feeling aggrieved, Sant Singh respondent filed a revision petition before the Additional Sessions Judge, Patiala, which was accepted. The order dated 8.1.1992 passed by the Sub Divisional Magistrate, was set aside and the application filed by the petitioners was dismissed. Feeling aggrieved, the petitioners have approached this Court under section 401 of the Code.

I have heard the learned counsel for the parties and have gone through the record.

Shri M.L. Saini, Advocate, learned counsel for the petitioners, has laid great stress on the order dated 4.10.1973 passed by the Settlement Officer, and has argued that once this path was given in consolidation proceedings meant for the general public including the petitioners the same could not be encroached upon by the respondents and the Sub Divisional Magistrate was justified in passing an order under section 133 of the Code thereby directing the respondents to remove the encroachment. On the other hand Shri Kanwaljit Singh Advocate, the learned counsel for the respondents has argued that although in October 1973, the said order was passed by the Settlement Officer in consolidation proceedings but this order was never implemented on the spot and no new path as mentioned in this order was created or constructed or ever used since then. It has been further argued by the learned counsel that no such path in use was found during the enquiry conducted by the Tehsildar. It has also been pointed out by the learned counsel that the petitioners never made any averment in their complaint that there was any public nuisance which was to be removed and as such the application itself was not maintainable.

I have considered the respective arguments advanced at the Bar carefully.

It cannot be disputed that the object of Section 133 of the Code is to provide a summary remedy to deal with public nuisances which are emergent in nature and capable of being removed. Proceedings under this section are not intended to settle private disputes between different members of the public. They are in fact intended to protect the public as a whole against inconvenience. If a person has any private right which he wishes to enforce, he should take his recourse to the civil court. It is also well settled that where the alleged obstruction is old one the matter is one to be decided by civil court and the provisions of this section cannot be invoked in such a case.

In the case in hand, it s not disputed by the counsel of the either of the parties that a new path was ordered to be created during consolidation proceedings by the Settlement Officer by his order dated 4.10.1973, but this order does not appear to have been implemented on the spot. The enquiry made by the Tehsildar, Patiala goes to show that no such path as alleged by the petitioners was in existence at the spot and the petitioners were using another path round the pond which was levelled and left for the petitioners after the passing of the aforesaid order in consolidation proceedings. The learned counsel for the petitioner has not disputed that even earlier there was a dispute between the parties regarding this very passage, which was mutually settled by a compromise (Annexure R1). Thus, it becomes clear that the path directed to be carved out by the Settlement Officer by this order dated 4.10.1973 never came into existence nor any such path was ever used by any of the parties what to speak of general public. There is no evidence on the record to show that any such path, as being claimed by the petitioners at present, was in existence and was being used by the general public. It appears that the petitioners are trying to enforce the order dated 4.10.1973 by filing an application under section 133 of the Code after lapse of about 17 years. Even if there is an old obstruction over a public path as stated above the same cannot be subject matter of the proceedings to be initiated under section 133 of the Code. For appropriate relief in such a case, the parties should be left to have recourse to the civil court. Therefore, the learned Additional Sessions Judge was fully justified in coming to the conclusion that there was no public nuisance within the meaning of Section 133 of the Code and the Sub Divisional Magistrate fell in error in passing the order date 8.1.1992. I do not find any illegality or irregularity with the impugned order passed by the Additional Sessions Judge.

Consequently, there is no merit in the present petition and the same is hereby dismissed.