The court emphasized that a conditional order under Section 133 of Cr.P.C. is mandatory for initiating proceedings, and failure to comply renders subsequent actions invalid.

JUDGMENT :

Rakesh Kainthla, J.

1. The present petition is directed to quash the order dated 25.7.2023, passed by the learned Sub Divisional Magistrate(SDM), Jubbal and the proceedings pending against the petitioner.

2. Briefly stated, the facts giving rise to the present petition are that a report was made to the Deputy Director, Animal Husbandry with a copy to Pradhan, Gram Panchayat, Dhar stating that Pradhan Singh-respondent had obstructed the passage leading to the dispensary which was causing difficulty in approaching the dispensary. The respondent claimed that the land belonged to him; however, the land had been used as a passage by the public for 30-35 years. There is no alternative passage to the public. Secretary, Gram Panchayat wrote a letter to SDM, Jubbal stating that the passage was blocked, which was causing difficulty to the staff employed in the dispensary and the public. A request was made to take suitable action.

3. This letter was placed before the SDM with the noting made by the Reader. Learned SDM passed an order to seek a report from the Kanungo, Jubbal on the issue within three days. Field Kanungo submitted a report that he had carried out the demarcation and found that the passage was blocked on the Government land bearing Khasra No. 1286/1, measuring 00-03- 03 hectares. Pradhan, Up-Pradhan and the local public stated that the people used the passage, which was blocked by Pradhan Singh-respondent. Respondent had also encroached upon Khasra No. 1286/1, measuring 00-03-03 hectares. A tatima of the encroachment was preupared. A noting was prepared by the Reader that as per the report, the passage was blocked by Pradhan Singh and it was appropriate that action should be taken against him under Section 133 of Cr.P.C. Learned SDM ordered that as the status quo had been ordered by the learned JMIC in the matter; hence the orders passed on the next date of H hearing should be awaited.

4. The file was again put up with the noting by the Reader that the status-quo order had been vacated; hence, the file was placed for further orders. Learned SDM passed an order “Institute case under Section 133 of Cr.P.C. and conditional order for removal of nuisance within seven days. The next date of hearing be fixed for 17.7.2023.” The respondent appeared and submitted a reply. The notices were issued to Pradhan, Vice-Pradhan, Secretary, and Veterinary Pharmacist, returnable for 25.7.2023. On 25.7.2023, none appeared on behalf of the respondent whereas the witnesses were present. Learned SDM held that from the perusal of the statements of all present, it was evident that there was a dire need to restore the path. An interim order under Section 142 of Cr.P.C. was passed as per the separate detailed order. Copy of the order was ordered to be sent to the respondent, Tehsildar, Jububal, SHO, Jubbal for compliance.

5. Being aggrieved from the order passed by learned SDM, the present petition has been filed asserting that the petitioner is a co-owner in possession of the land bearing Khasra Nos. 1279 and 1284. This land was acquired by his ancestors as per the provisions of Himachal Pradesh Nautor Rules, 1968. The Department has no right over the land. The Government proposed the construction of an Ayurvedic Dispensary on the adjacent land in the year 2016. The Government also proposed the construction of a Veterinary Dispensary in the year 2017. There is a private building next to the Government land in which the Ayurvedic Dispensary and Veterinary Dispensary have been functioning since 1982. There is a pre-existing path in the land of Smt. Sushma Sohta, Pradhan of the Gram Panchayat and Lovely Sohta, Ward Member adjacent to the land of the respondent. The construction material was taken through the pre-existing path. They approached the SDM to divert the path through the land of the respondent. SDM, Jubbal called the respondent on 15.5.2023 at 11.00 AM and asked him to be present on the spot. The respondent reached the spot. SDM and