Delhi High Court
Shri Ram Lal And Another vs Shri Dharam Vir on 27 August, 2001
Equivalent citations: 2001CRILJ4507, 93(2001)DLT702, 2001(60)DRJ152
ORDER S.K. Agarwal, J.
1. This petition under Section 482 Cr.P.C. is directed against order dated 13th October, 1997 passed by the court of Ms.I.K.Kochhar, ASJ, New Delhi dismissing the revision petition, against the conditional order dated 15th July, 1997, passed by the Sub-Divisional Magistrate (for short 'SDM'), directing petitioners to remove the obstruction/blockage on the public passage (path) within seven days. The matter was kept pending for final decision on merits, after the detailed enquiry.
2. Briefly stated the facts are: that Dharambir (respondent No.1) lodged the complaint under Section 133 Cr.P.C. alleging that petitioner Ram Lal and his son Braham Singh, were erecting pillars, on 32 feet wide public passage, situated in Khasra Nos. 41 & 42 of Village Bhatti which leads to their farm house in Khasra No.890/900/901/902/909/913/916 of Village Fatehpur Beri, and that they were trying to encroach upon the public passage by putting an iron grill gate and by puce wall.
3. Report from the SHO of the area and Patwari was called. Notice was issued to the petitioners. S.I.Balram of P.S.Mehrauli, in his report submitted that the passage (path) in Khasra No.41 beyond Khasra No.42, in the same lane was blocked by the petitioners by iron grill gate and newly erected puce wall. The report of the "Halka Patwari" also showed that it was a public passage before the obstruction was put by the petitioners. It was also noticed that in the earlier suits (Suit No.900/92 titled Amrit Lal v. Kashmiri Lal and Suit No.274/91 Ramlal v. Kashmiri Lal), the petitioners had themselves pleaded existence of the passage and that in 1994-95 also status quo orders passed by the SDM Hauz Khas showed that the area in dispute was the passage (path). On the basis of the above material, conditional order of removal of blockage was passed.
4. Learned counsel for the petitioners has argued that the courts below failed to take into consideration two reports of Local Commissioners appointed in civil suits, which go to show that there was no passage (path) in Khasra No.42 and that the intention of the respondent was to encroach upon the land of the petitioners; and the revenue record submitted by the respondent was forged and fabricated inasmuch as the word "road" was introduced in the revenue record later on illegally and unauthorisedly and even the "akshjara" and the "Khasra Girdawari" show that there was no path or passage through Khasra No.42. It was further argued that petitioners are in possession of their own land and the respondents have no right of passage through the land in Khasra No.42 which is private agricultural land and that the SDM ought to have awaited the decision in the civil suits and should not have proceeded to pass the impugned order. Placing reliance upon the decision of the Supreme Court in Vasant Manga Nikumba and others v. Baburao Bhikanna Naidu (deceased) by Lrs. and another, 1996 SCC (Cri) 27, it was further argued that Section 133 Cr.P.C. is not intended to settle civil disputes between the parties. Learned counsel for the respondent argued to the contrary.
5. Law in this regard is well settled. Section 133 Cr.P.C. provides summary remedy for removal of specific public nuisances or obstructions etc. It is not intended to settle private dispute between the two members of the right of the public to approach a civil court for determining the question of title. The Magistrate's jurisdiction under this Section can be invoked even by a private individual despite availability of an alternative remedy. The encroachment on the public road, however small, would inevitably result in obstruction to the persons, who may have the occasion to use the same. The expression in Section 133 Cr.P.C. "which is or may be lawfully used by the public" clearly shows that all that is required to be shown is that the land in dispute is the public way etc. which can be lawfully used by the public. The expression "public way" has not been defined in the Cr.P.C. or the Penal Code. Public way is the place where the public has a right to go or to which public can have an access by way of right either by admission, usage or otherwise. It is not necessary that the title of the place should be in the public. It would depend upon the character of the place and the usage actually made of it in the past or at a given point of time. These are all questions of fact which can only be determined after proper adjudication.
6. Section 142 Cr.P.C. provides that an interim order of injunction under this Section can be made at any time during the pendency of the proceedings whether under Section 133 or 137 or 138 Cr.P.C. Further SDM making an order under Section 142 cr.P.C. is not precluded from making final order as envisaged by Section 138 of the Code. Reading Sections 133, 138 and 142 Cr.P.C. make it clear that in spite of making an order under Section 142 Cr.P.C., the SDM is entitled to proceed with the case and make a final order under Section 138 of the Code.
7. To re-call the facts, in this case, the SDM, taking into consideration, reports submitted by the Police and the revenue authorities as well as the admissions of the petitioner in the earlier litigations, passed the conditional order directing the petitioner to remove the obstruction pending final disposal of the inquiry before him. Against the order passed by the SDM, petitioner filed a revision, which was dismissed by the learned Additional Sessions Judge by impugned order dated 15th July, 1997. It is pertinent to mention here that during the course of hearing before the revisional court, learned counsel for the parties admitted that the obstruction has already been removed.
8. In view of above, I find no merit in the petition, the same is accordingly dismissed. Any observation made herein shall not affect the merits of the case.