Executive Magistrate Can Prohibit Interference With Exercise Of Right Of User Of Land Including Removal Of Obstruction U/S.147 CrPC: Himachal Pradesh High Court

The High Court was considering a Petition against the order passed by the Sub-Divisional Magistrate allowing the complaint filed by respondent under Section 147 of the Code of Criminal Procedure (CrPC) directing the petitioners to remove the obstruction caused by them on the path in dispute.

The Single Bench of Justice Sandeep Sharma explained, “While exercising power Section 147 Cr.P.C., Executive Magistrate after being satisfied from the report of the Police officer or upon other information that dispute, likely to cause a breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction, may summon the parties and record their statements. If after having perused statements as well as other material adduced on record by the respective parties, authority concerned thinks necessary and, if possible, decides that whether such right exists, he can make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right. Aforesaid exercise of power is subject to proviso that no such order shall be made, where the right is exercisable at all times of the year, unless such right has been exercised within three months before the receipt of report of a Police Officer under Sub-Section (1) or other information leading to the institution of the inquiry, or where the right is exercisable only at particular season or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such receipt.”

Advocate Kul Bhushan Khajuria represented the Petitioner, while Advocate Bhushan Khajuria represented the Respondent.

Factual Background

The first respondent (complainant) filed a complaint before the Police alleging that the petitioners blocked the path situated in village Basteri, Tehsil Sangla, District Kinnaur. Taking cognisance of the complaint, Station House Officer, Police Station Sangla, conducted an investigation and found that in case the path alleged to be obstructed by petitioners was not opened, there would be breach of peace in the area and accordingly presented Kalandra under Section 147(4) of Cr.P.C. in the Court of Sub-Divisional Magistrate.

The Sub-Divisional Magistrate directed the Tehsildar to give his report. It was stated in the report that the path in dispute was in Khasra No.720 belonging to Basti Ram etc., but the same was obstructed by Padam Singh and Pramod Kumar (petitioners herein). The Sub-Divisional Magistrate thereafter passed the impugned order directing the petitioners to remove the obstruction on the path in dispute, failing which Tehsildar was ordered to remove the same with the help of SDO, PWD, Sangla, in Police presence. It was in such circumstances that the petitioners approached the Court to set aside this order.

Reasoning

On a perusal of the facts of the case, the Bench noted that the land with respect to which the impugned order came to be passed by the competent authority was a private land, belonging to Basti Ram, including others, and the petitioners, Pramod Kumar and Padam Singh, were the co-owners in the same. As per the Bench, if the original complaint filed by the complainant to the Police was perused, it clearly revealed that it was not the case of the respondents that the land in question belonged to them.

Considering that the complainant was able to substantiate his claim with regard to the use of the passage for so many years by getting the statements of UpPradhan and Patwari of the area concerned recorded, coupled with the report submitted by the Tehsildar, the Bench found no illegality with the order passed by the Sub-Divisional Magistrate directing the respondents to remove the obstructions.

Taking note of the fact that the Civil Court had nowhere decided the question of title inter se parties, rather the dispute in that case was only inter se two co-owners, the Bench clarified that the orders passed by the Sub-Divisional Magistrate would remain in force till the time the same is not interfered with by the superior Court of law or a declaration is given by the competent Court of law that land in question is owned and possessed exclusively by the petitioners.

“However, till the time afore declaration, if any, comes, petitioners herein, who otherwise during proceedings pending before the SubDivisional Magistrate agreed to permit the private respondnets to use the path on temporary basis, cannot cause obstruction or raise objection qua the use of the same by the complainant and other villagers, especially in view of report submitted by Tehsildar, Sangla”, it ordered.

Thus, finding no illegality or infirmity in the impugned order, the Bench dismissed the petition.

Cause Title: Pramod Kumar and Another v. Hir Chand (Neutral Citation: 2026:HHC:14733)

Appearance

Petitioner: Advocate Kul Bhushan Khajuria

Respondent: Advocates Bhushan Khajuria, Aashish Kumar, Additional Advocates General Rajan Kahol, Vishal Panwar, Deputy Advocates General Ravi Chauhan, Anish Banshtu

Click here to read/download Order