Manish Uniyal vs State Of Uttarakhand And Others

Ravindra Maithani, J

The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") has been filed for quashing the order dated 23.07.2013 passed by Additional Sessions Judge, Tehri Garhwal in Criminal Revision No.16 of 2011, Munendra Uniyal vs. State and another (hereinafter referred to as "the Revision").

The proceedings in this case were initiated on a report of Revenue Inspector submitted to Sub Divisional Magistrate Narendra Nagar, Tehri Garhwal under Section 133 of the Code. According to this report, the respondents had obstructed a pathway by raising a wall due to which the pathway was narrowed and could not be accessible to the domestic animals and for this reason the private respondents and petitioner used to take small quarrels every now and then, which caused breach of peace. Notices were issued and proceedings of Criminal Case No.01/01/02/2007, Manish vs. Munendra (hereinafter referred to as "the Case") under Section 133 of the Code in the court of learned Sub Divisional Magistrate, Narendra Nagar, Tehri Garhwal were instituted. By judgment and order dated 07.03.2011 passed in the case, private respondents were directed to remove obstruction within 15 days since then. This order was challenged by respondent nos.2 & 3 in the revision. Revision was allowed vide impugned order dated 23.07.2013 and the order passed in the case on 07.03.2011 was set aside. Aggrieved the instant petition.

Learned counsel for the petitioner would simply urge that a pathway has been obstructed by respondent nos.2 & 3 by raising wall and order dated 07.03.2011 was lawfully passed in the case, which has been inferred by the impugned order, hence impugned order be set aside and petition allowed.

On the other hand, learned counsel for the private respondents would argue that the order dated 07.03.2011 was passed in the case without any basis against the law because the dispute is not of public nuisance. The dispute is between petitioner and the respondent nos.2 & 3 with regard to a construction raised near a pathway, which is totally private in nature. Apart from it, it has argued that the alleged obstruction i.e. raising of the wall had already been done six years prior to submission of the report, therefore, there is no imminent danger of public peace and if petitioner has any cause they may very well take recourse to civil remedy, if they are so advised. But it is argued that it is a case in which the provision of Section 133 of the Code may not be invoked. Thereafter, it is argued that the petition deserves to be dismissed.

Section 133 of the Code deals with public nuisance. A Magistrate can pass conditional order requiring a person to remove any unlawful obstruction a nuisance from any public place or way etc. It provides as herinunder;

"133. Conditional order for removal of nuisance.

(1) Whenever a District Magistrate or a Sub- Divisional Magistrate or any other Executive Magistrate especially empowered in this 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; or..................................................................................................................................."

Initially in the report, which was submitted to Sub Divisional Magistrate, which is annexure 1 to the petition, it is averred that the pathway has been obstructed by narrowing it, which can be accessed only by persons and not by domestic animals. At one place it is stated that it is public pathway. There is annexure 3 as well, which is an application of the petitioner himself, in which he claimed the pathway as his hereditary pathway. It has not claimed in that application that it is a public pathway. There are statements of the witnesses, which have been considered in the case but in revision the learned court has categorically dealt with all these issues and found that there is no imminent danger because the alleged construction was raised six years prior to the submission of report. It has also been found in the revision that the dispute between parties is not with regard to any public pathway but it is a private passage of the petitioner. There appears to be no illegality, in the impugned order, which may warrant any interference in this petition. Therefore, the petition deserves to be dismissed.

The petition is dismissed.