Complaint petition has been filed before the Sub Divisional Magistrate (Excutive First Class Magistrate), Alappuzha by respondents 3 to 13 alleging obstruction of a pathway alleged to be passing along the southern side of the property belonging to the petitioners herein. It is alleged in that complaint petition that the respondents 3 to 13 are residing in their properties “situated on the just east of the of Alappuzha-Thanneermukkom Road” and the petitioners herein are “residing in their properties situated on the eastern side” of the respondent 3 to 13’s properties. It is also alleged that the only access for respondents 3 to 13 to the “western road is through the southern part of the petitioners property comprised in Sy.No.7/2 of Komalapuram Village” and the respondents 3 to 13 have “no other access”. “Adjoining to the pathway one and a half feet wide land is provided by the adjoining property holder Maniyappan of Kattuvelil” and he surrendered it for respondents 3 to 13. It is adjoining that portion of land the said pathway passes. Respondents 3 and 13 are using the said pathway passing through the petitioners property from time immemorial. The further allegation made in the complaint petition is that with the ulterior motive of obstructing respondent 3 to 13’s user of the pathway, petitioners herein “dumped some wasted material, thorns and other obstructions” and obstructed the pathway. They also asserted that the petitioners herein have no right or authority to obstruct the pathway passing through the petitioners property. The act of the patitioners herein is illegal and unauthorised.

2. On the basis of the allegations made n the complaint petition and also relying on the reports filed by the Village Officer, Komalapuram dated 2.5.95 and 5.5.1995 respectively learned Sub Divisional Magistrate passed preliminary order under S.133(1)Cr.P.C. directing the petitioners herein to remove the obstruction caused by them to the user of the pathway (in the preliminary order the pathway is described as public pathway) within 7 days from the date of receiving of the preliminary order or in case of objection petitioners herein were directed to appear before the sub Divisional Magistrate on 31.5.1995 at 2.30 p.m. and to show cause why the conditional order should not be made absolute.

3. Petitioners herein filed objection before the Sub Divisional Magistrate on 27.9.1995 disputing the existence of any such pathway passing through their property and also user of any such pathway by the respondents 3 to 13. The alternative contention raised in the objection filed by them is that alternate pathway is available to them for their ingress and egress.

4. Learned counsel for respondents 3 and 13 fairly submitted before me that no specific allegation is made in the complaint petition filed by respondents 3 to 13 that the pathway alleged to be obstructed by the petitioners herein is a public pathway. The allegation made in the complaint petition is that only access to respondents 3 to 13 from their respective houses to the western road is through the southern part of the petitioners’ property comprised in Sy.No.7/2 of Kolamapuram Village and they have been using that pathway from time immemorial. It is not possible to spell out a case from the averments or allegations made in the complaint petition that the pathway, the user of which is alleged to be obstructed is or may be lawfully used by the public. The reports of the Village Officer, Komalapuram relied on by the Sub Divisional Magistrate to pass conditional order under S.133(1) Cr.P.C. do not furnish material to come to a finding regarding obstruction of any pathway which is or may be lawfully used by the public. The expressions ‘public place’ & ‘any way’ illustrate very clearly that the Section 133 Cr.P.C. comprehend not only public places but also “any way “ which may be lawfully used by the public. Lawful use by the public of “any way” would bring it within the ambit of section 13