MUHAMMAD SHUAIB and others vs SESSIONS JUDGE, SWAT and others
This appeal arises from a dispute regarding the obstruction of a path passing through the appellants' privately-owned property. Respondents initiated proceedings under Section 133 of the Code of Criminal Procedure 1898 before the Assistant Commissioner/Magistrate, Swat, seeking the removal of the obstruction, claiming it was a public path. The Magistrate's conditional order for removal was upheld by the Sessions Judge, and a subsequent petition for quashment under Section 561-A of the Code of Criminal Procedure 1898 was dismissed by the Peshawar High Court. The core legal question was whether the summary jurisdiction under Section 133 of the Code of Criminal Procedure 1898 could be invoked to remove an obstruction on a path where the status of the path as 'public' was disputed and not supported by the Revenue Record. The Supreme Court allowed the appeal, holding that the impugned orders were unwarranted as the Revenue Record did not support the claim of a public path. The Court established that summary proceedings under Section 133 are inappropriate for resolving disputed questions of title or the public nature of a path; such matters must be adjudicated by a Civil Court of plenary jurisdiction.
- Can summary proceedings under Section 133 of the Code of Criminal Procedure 1898 be used to resolve a dispute regarding the existence of a public path?
- Is a Magistrate empowered to order the removal of an obstruction on a path when the path's status as public is not supported by the Revenue Record?
- Should disputes concerning the public nature of a path on private property be decided by a Magistrate or a Civil Court?
- Section 133, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
' MANZOOR HUSSAIN SIAL, J---This is an appeal by leave of this Court against the judgment dated 7-11-1992, passed by the Peshawar High Court, whereby a petition filed by Muhammad Shuaib and other appellants herein, under section 561-A, Cr.P.C., for Assistant Commissioner, Swat, and the order dated 27-8-1992 of the Sessions Judge, Swat, was dismissed.
2. The respondents No.3 to 6 filed an application under section 133, Cr.P.C. Before Assistant Commissioner/Magistrate, Swat, for the removal of the obstruction on the path in dispute caused by the appellants. The Assistant Commissioner/Magistrate, on 20-6-1989, passed a conditional order for the removal of obstruction from the path in dispute. The appellants challenged that order in revision before the Sessions Judge, Swat, but to no avail. The appellants feeling aggrieved against those decisions moved an application under section 561-A, Cr.P.C. In the Peshawar High Court for quashment of the orders passed by the Assistant Commissioner/Magistrate, Swat, and the Sessions Judge, Swat, in regard thereto. The learned Single Judge in the Peshawar High Court, vide order dated 7-11-1992, dismissed the application with a direction to the appellants to approach the Civil Court for having a declaration that there did not exist a public path in the land owned by them.
3. Leave was granted by this Court on 17-3-1993, to consider, whether I mere existence of path on the spot thereof, the lower Courts could pass the impugned order under section 133, Cr.P.C. The operation of the impugned order was also suspended till the decision of the appeal.
4. Learned counsel for the appellants contended that it is established from the statement of Patwari Halqa that the path in dispute did not find mention in the Revenue Record. It was also contended that a path was carved out recently by the aforesaid respondents in the private property of the appellants which was not a public path so as to attract the provisions of section 133, Cr.P.C. Learned counsel referred to paras 3 and 4 of the petition under section 133, Cr.P.C. To show that the path in dispute was constructed by the residents of the village and was being issued by the contesting respondents.
5. Learned counsel for respondents 3 to 6 opposed the appeal and submitted that the path in dispute existed on the spot but was illegally obstructed by the appellants.
6. We have heard learned counsel for the parties and have perused the record. It appears that the appellants obstructed path in dispute passing through their privately-owned property comprising Khasra Nos. 858 and 859. The appellants claimed that it was not a public path and the contesting respondents had no right to sue it. The contesting respondents on the other hand maintained that it was a public path. Their contention, however, is not supported by the Revenue Record. In these circumstances the impugned orders passed in purported exercise of jurisdiction under section 133, Cr.P.C. Were unwarranted. The contesting respondents may if so advised seek a declaration from the Civil Court of plenary jurisdiction for the redress of their grievance if any. Subject to the observation made above this appeal is allowed. There shall be, however, no order as to costs.