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2026 DAILYLAW 16725 (HP)

Ram Lal v. State of Himachal Pradesh

2026-02-27

Sandeep Sharma

body2026
JUDGMENT : Sandeep Sharma, J. Instant Criminal Revision Petition, lays challenge to the order dated 6.3.2025, passed by the learned Sessions Judge, Mandi Division Mandi, Himachal Pradesh, in Criminal Revision No. 40 of 2024, titled as State of Himachal Pradesh and Anr. v. Ram Lal and Ors., reversing order dated 22.10.2022, passed by the Sub Divisional Magistrate Thunag, District Mandi, Himachal Pradesh, in file No. 25 of 2022 titled as Ram Lal and Ors. v. Principal Government Senior Secondary School Janjehli and Anr. 2. Precisely, the facts of the case as emerge from the pleadings as well as documents adduced on record by the respective parties are that petitioners and proforma respondent No.3 herein filed an application under Section 133 of CrPC in the court of Sub Divisional Magistrate, Thunag, praying therein for restoration of public path allegedly blocked by the respondents. It is averred in the application that houses of the applicants are situated on Khasra No. 687, which is adjacent to playground of GMSSS Janjehli and passage to the same passes through the school playground. Applicants alleged that school management has now blocked the path by constructing the boundary wall. Though during construction of the boundary wall, school management had given the path through gate, but same has also been closed. 3. Taking note of the aforesaid application made by the applicants, Sub Divisional Magistrate called for spot report from the field agency, which specifically apprised the court that there is a playground of GMSSS Janjeshli, District Mandi, Himachal Pradesh adjacent to the houses of the applicants situated on khasra No. 687. Sub Divisional Magistrate, taking note of the afore report submitted by the field agency as well as statements of witnesses adduced on record by the applicants, proceeded to pass conditional order under Section 133 CrPC, dated 22.10.2022 (Annexure P-1), thereby ordering that 2ft. space will be created in boundary wall in front of common wall between the houses of applicants No. 1 and 3 and such space will be created by partly demolishing boundary wall and erecting iron gate in that space and the expenditure thereof shall be borne by the applicants. Sub Divisional Magistrate further ordered that applicants will give way through their land to the adjoining plots in the ownership of Sh. Tej Singh, Smt. Mangli, Sh. Sub Divisional Magistrate further ordered that applicants will give way through their land to the adjoining plots in the ownership of Sh. Tej Singh, Smt. Mangli, Sh. Dola Ram and Sh.Mohan Singh and in case, they refuse to give way through their land to the plots of the persons mentioned above, instant order shall cease to operate. 4. Being aggrieved and dissatisfied with order passed by the Sub Divisional Magistrate under Section 133 of CrPC, respondents No. 1 & 2 filed Criminal Revision Petition under Section 397 of the CrPC in the court of learned Sessions Judge, Mandi, District Mandi, Himachal Pradesh, who vide order dated 6.3.2025, allowed the same and set-aside order dated 22.10.2022, passed by the Sub Divisional Magistrate, Thunag, District Mandi, Himachal Pradesh. In the afore background, petitioners have approached this Court in the instant proceedings, praying therein to quash and set-aside the aforesaid order and restore the order dated 22.10.2022 passed by the Sub Divisional Magistrate under Section 133 of CrPC. 5. Precisely, the grouse of the petitioners as has been highlighted in the petition and further canvassed by Mr. Prajwal Sharma, learned counsel appearing for the petitioners is that learned Sessions Judge while passing impugned order failed to take note of the fact that houses of the applicants are situate on the land adjacent to the playground. Mr. Sharma, further submitted that it is not in dispute that applicants as well as other residents of the area had been using certain portion of the playground as path for going to their residences and as such, no illegality can be said to have been committed by the Sub Divisional Magistrate while passing order under Section 133 of CrPC. Mr. Sharma, further stated that it has specifically come on record that save and except passage going through playground of the school, no alternative passage exists for applicants as well as other residents to approach their houses. He further attempted to argue that otherwise also, Sub Divisional Magistrate with a view to ensure peace and settlement for all times to come, has only ordered for creation of 2ft. passage from the playground, enabling the applicants as well as other residents to reach their respective houses. 6. To the contrary, Mr. He further attempted to argue that otherwise also, Sub Divisional Magistrate with a view to ensure peace and settlement for all times to come, has only ordered for creation of 2ft. passage from the playground, enabling the applicants as well as other residents to reach their respective houses. 6. To the contrary, Mr. Anish Banshtu, learned Deputy Advocate General, while supporting the impugned order passed by the learned Sessions Judge, vehemently argued that bare perusal of conditional order dated 22.10.2022 passed by the Sub Divisional Magistrate, itself suggests that same is in complete violation of provisions of Section 133 of CrPC. He stated that no document, if any, ever came to be placed on record by the applicants suggestive of the fact that any path leads to their houses from the playground of the school. Mr. Anish, submitted that since it has specifically come in evidence that land in question is a playground of the school, no order under Section 133 of CrPC otherwise could have been passed by the Sub Divisional Magistrate. Learned Deputy Advocate General stated that very requirement of passing of order under Section 133 of CrPC is to remove obstruction/blockage over the public path, but once applicants as well as other residents failed to prove that land from which they are claiming passage is a public path, Sub Divisional Magistrate could not have passed conditional order. He further stated that as per own case of the applicants, playground was earlier covered by the boundary wall, whereupon gate was also erected by the school authority to prevent unauthorized entry. Though it came to be argued at the behest of the applicants that earlier they were provided passage through playground but such fact has been seriously refuted by the respondents. 7. Having heard learned counsel for the parties and perused material available on record vis-à-vis reasoning assigned in the impugned order passed by the learned Sessions Judge, thereby allowing the criminal revision petition filed by the respondents, this Court is not persuaded to agree with learned counsel for the petitioner that court below has fallen in grave error while passing impugned order, rather this court is of the view that learned Sessions Judge Mandi, while passing impugned order has corrected the material irregularity committed by the Sub Divisional Magistrate while passing order under Section 133 of CrPC. 8. 8. At this stage, it would be apt to take note of Section 133 of CrPC, which reads as under: “133.Conditional order for removal of nuisance.- (1) Whenever a District Magistrate or a 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 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 (b) that the conduct of any trade or occupation or the keeping of any goods or merchandise; is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated: or (c) that the construction of any building, or the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or (d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or (e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or (f) that any dangerous animal should be destroyed, confined or otherwise disposed of, Such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, lank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order- (i) to remove such obstruction or nuisance; or (ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or (iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or (iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or (v) to fence such tank, well or excavation; or (vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order; or, if he such building, or to alter the disposal of such substance; or (iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or (v) to fence such tank, well or excavation; or (vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order; 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. (2) No order duly made by a Magistrate under this section shall be called in question in any civil Court. Explanation – A “public place” includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes.” 9. Aforesaid provision of law empowers Sub Divisional Magistrate to pass conditional order for removal of nuisance from any public place or from any way, river or channel which is or may be lawfully used by the public. As has been argued by the learned Deputy Advocate General, no document worth credence ever came to be led on record by the applicants suggestive of the fact that land over which they are claiming passage is a public path, rather their own case is that there exists playground adjacent to their houses, but for last 30-40 years, they have been using the same as passage for approaching their respective houses. Sub Divisional Magistrate though called for spot report from the revenue agency, but yet ignoring the same, proceeded to pass conditional order, which otherwise could not have been passed for the reason that no obstruction/nuisance was ever caused by the applicants on the public path, rather they had blocked entry to their property. Since it is not in dispute that playground over which applicants are claiming right to pass is a Government property and same is recorded in the name of Government of Himachal Pradesh, coupled with the fact that such land was earlier covered by the respondents by erecting boundary wall, there was otherwise no power, if any, vested with the Sub Divisional Magistrate to pass conditional order under Section 133 of CrPC. Sub Divisional Magistrate appears to have exceeded his jurisdiction while passing impugned order dated 22.10.2022 especially in directing the respondents to remove obstruction that too without affording opportunity of hearing to the owner of the land in question i.e. State of Himachal Pradesh. Applicants conveniently impleaded Principal of the school concerned as party respondent, whereas having taken note of the fact that land in question belongs to State of Himachal Pradesh, they ought to have impleaded respondent-State as party. 10. Moreover, this Court finds that before passing order, if any, under Section 133 of CrPC, Sub Divisional Magistrate was required to afford opportunity of hearing to both the parties, which in the case at hand, never came to be afforded to State of Himachal Pradesh being actual owner of the land in question. Otherwise also, no conditional order could have been passed by the Sub Divisional Magistrate straightaway on the application filed by the parties seeking such order, rather authority, at the first instance, after receipt of report from the revenue agency ought to have issued notice to opposite party against whom such order was sought so that it could explain its position to the court. 11. Since in the case at hand, no opportunity was ever afforded to the State of Himachal Pradesh, impugned order dated 22.10.2022, passed by the Sub Divisional Magistrate rightly came to be interfered with by the learned Sessions Judge, Mandi, being passed in violation of principle of natural justice. In the event of being issued notice, State of Himachal Pradesh would have placed on record documents to demonstrate that land in question qua which conditional order is sought, is not a public path, rather same is playground of the school. Tehsildar while submitting report dated 7.6.2022, nowhere disputed that playground, which is adjacent to the land of the applicants comprised in khasra No. 687 is owned by the State of Himachal Pradesh. He observed in the order that there are houses of many persons namely Sh.Tej Singh, Sh.Ram Lal, Sh. Lachhman, Smt. Mangli Devi, Dola Ram and Mohan Singh on the land comprised Khasra No. 687. Issue with regard to use of such passage could not have been decided by the Sub Divisional Magistrate under Section 133 of CrPC, rather for that purpose, appropriate remedy, if any, for the applicants is/was to file Civil Suit in the competent court of law. Issue with regard to use of such passage could not have been decided by the Sub Divisional Magistrate under Section 133 of CrPC, rather for that purpose, appropriate remedy, if any, for the applicants is/was to file Civil Suit in the competent court of law. No evidence ever came to be led on record by the applicants that boundary wall erected long back was causing nuisance, if any, to the applicants, who are adjacent land owners. Sub Divisional Magistrate failed to take note of the fact that boundary wall erected on the playground of the school was constructed with public money and as such, otherwise same could not have been ordered to be dismantled without there being declaration, if any, given by the competent court of law to the effect that passage to the houses of the applicants passes through the playground. Sub Divisional Magistrate while passing impugned order has committed grave error by ordering carving of 2ft. space in front of common wall between the house of the applicant No.1 and proforma respondent No.3 that too by partly demolishing boundary wall and erecting Iron Gate. Till the time applicants are not able to prove that they have right to passage over the playground, which is in the ownership of State of Himachal Pradesh, Sub Divisional Magistrate, while exercising power under Section 133 of CrPC had no authority to pass such order. 12. Consequently, in view of the above, this Court finds no illegality or infirmity in the impugned order passed by the learned Sessions Judge and as such, present petition fails and dismissed accordingly.