Darshan Ram and anr. Vs. Malkiat Chand and ors. - Court Judgment

Excerpt:
- hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property......orders.s. grewal, j.1. this petition under section 482 of the code of criminal procedure 1973 (hereinafter referred to as the code) relates to quashment of impugned order dated 12th of august, 1988 passed by the sub divisional magistrate, garhsbankar under section 133 of the code, (annexure p1) as well as the impugned order passed in revision by additional sessions judge, hoshiarpur dated 14th of february 1989, (annexure p2).2. in brief the facts relevant for the disposal of this case are that malkiat chand and others filed an application under section 133 of the code against the present petitioners that the latter had caused obstruction in the passage leading to their house and prayed for the removal of the said obstruction. the sub divisional magistrate garhshankar secured the presence.....

Judgment:
ORDER

S.S. Grewal, J.

1. This petition under Section 482 of the Code of Criminal Procedure 1973 (hereinafter referred to as the Code) relates to quashment of impugned order dated 12th of August, 1988 passed by the Sub Divisional Magistrate, Garhsbankar under Section 133 of the Code, (Annexure P1) as well as the impugned order passed in revision by Additional Sessions Judge, Hoshiarpur dated 14th of February 1989, (Annexure P2).

2. In brief the facts relevant for the disposal of this case are that Malkiat Chand and others filed an application under Section 133 of the Code against the present petitioners that the latter had caused obstruction in the passage leading to their house and prayed for the removal of the said obstruction. The Sub Divisional Magistrate Garhshankar secured the presence of the opposite party which filed written statement. The learned Sub Divisional Magistrate, vide impugned order Annexure P1 made his preliminary order dated 13th of November 1987 absolute, directing the respondents to remove the obstruction from the passage withia 15 days. Aggrieved against the order of the Sub Divisional Magistrate dated 12th of August 1988, the present petitioners filed revision which, too, was dismissed by the Additional Sessions Judge Hoshiarpur vide impugned order dated 14th of February 1989 Annexure P 2.

3. Counsel for the parties were heard.

4. On behalf of the petitioners, it was mainly contended that Section 133 of the Code is not intended for the removal of long standing obstructions but for unlawful obstructions lately built on public place, and, that the said provisions cannot be allowed to be used as substitute for litigation in civil Courts. Reliance in this respect has rightly been placed on Single Bench Authority of this court in Rattan Singh v. Mohinder Singh, 1973 Ch. L. R. 278. wherein reliance was placed on the authority in Emperor v. Tulsi Ram, A. I. R. 1936 Lah. 523. and it was as under :-

'Section 133 is not intended for long-standing obstruction but for an unlawful obstruction lately built in a public place. It is only on proof of urgency or imminent danger to the public that action under Section 133 can be taken and the provisions of Section 133 should not be allowed to be used as substitute for litigation in Civil Courts. Chapter 10 of the Code deals with public nuisances and provides a speedy and summary method for dealing with them in cases of great emergency and where there is imminent danger to public interest. Where an obstruction has been allowed to stand in a public place without objection for many years the fact indicates there is no such emergency or iminent danger to the public interest. The existence of a longstanding obstruction cannot therefore without proof of something having recently happened be considered to be a public nuisance'.

5. Reliance was further placed in Gian Singh and Ors. v. The State of Punjab , (1970) 72 P. L. R. 368. Baisakhi Ram and Ors. v. Emperor , A. I. R. 1930 Lah. 361 (1). and Khair Din and Ors. v. Wasan Singh , A. I. R. 1935 Lah. 28. In all these rulings it was held that if an obstruction is continuing for more than one year then the application under Section 133, Criminal Procedure Code, must be dismissed.

6. According to the statements of A.W. 1 and A.W. 2 produced by the present respondent before the Sub Divisional Magistrate, the encroachment over the land in dispute had already existed for two or three years before application for initiation of proceedings under Section 133 of the Code was moved on 30-6-1987. The testimony of Kartar Chand R. W. 1 to the effect that the Block Development & Panchayat Officer had summoned Darshan Ram Sarpancb and the witness in this office on 9th of September, 1986 and they appeared in the said office, without anything more would not be sufficient to hold, that no such encroachment existed for more than two years without any objecsion.

7. The Single Bench Authority of Rajasthan High Court in Chhitar and other v. Chhoga and Ors. , 1974 Cr. L. J. 1230. to the effect that three years delay in complaining a grievance which occurs intermitently or seasonally, cannot be characterised as a belated action and Single Bench Authority of Madhya Pradesh High Court in The State of Madhya:Pradesh v. Manji Raghu 1964, (2) Cr. L. J. 94, relied upon by the Additional Sessions Judge wherein it was observed that under Section 133, no man can acquire a prescriptive right to commit a public nuisance, for, long enjoyment cannot legalize a public nuisance, relate to different set of facts and circumstances, and as such cannot be relied upon in view of the binding nature, of precedent of this court referred to above.

8. Since, in the instant case, there was sufficient evidence before the Sub Divisional Magistrate that the obstruction on the public place was allowed to stand without objection for more than two years, there was no need for the Sub Divisional Magistrate to proceed under Section 133 of the Code. Rather it would be for the present respondents to get the rights concerning alleged illegal encroachment over the public place adjudicated by the Civil Court.

9. For the foregoing reasons, the impugned orders Annexure P-l and Annexure P-2 are set aside. The respondents or other affected parties may approach the Civil Court for adjudication of their rights for removal of the alleged obstruction. This petition is accordingly allowed.