The main legal point established in the judgment is the importance of following the prescribed legal procedures under Section 133, Section 137, and Section 138 of the Cr.P.C. in cases involving public passages and the incompetence of the Gram Panchayat to exchange the land of the public passage.

DEEPAK GUPTA, J.

By way of this petition filed under Section 482 Cr.P.C., prayer is made to quash order dated 18.05.2016 (Annexure P-3) passed by Learned Sub Divisional Magistrate (SDM), Samana and the order dated 02.08.2016 (Annexure P-4) passed by Learned Additional Sessions Judge, Patiala dismissing the revision against Annexure P-3.

2. An application under Section 133 Cr.P.C. was filed by respondent No.2 Sikander Ram before SDM, Samana alleging that petitioners Shingara Ram etc. had blocked the public passage comprised in Khasra No.136 (6-11) situated in Village Chauhat. Pursuant to the notice issued by the SDM, petitioners filed reply admitting therein the existence of the public passage but stating that the same had been demolished 45 years back and that an alternate passage had been created out of land of petitioner No.2 Mohinder Ram, falling in Rectangle No.8 Khasra No.4/2(7-0) and 5/1(3-11), after Gram Panchayat had made an offer for exchange of such land in question. It was pleaded further that earlier passage was up to the land of Shingara Ram, which was not leading to the Dera. As the people of Dera were facing problem to approach their houses, so Gram Panchayat offered to exchange the land with that of the petitioners and so, the alternate passage was created. That alternate passage has since been converted into pucca road and that process of exchange of land was undergoing.

3. SDM Samana got the land in dispute demarcated and on that basis, passed an order asking to the petitioners to vacate the passage comprised in Khasra No.136 (6-11) within a period of 20 days, vide order dated 18.05.2016. Revision against this order has been dismissed by Learned Additional Sessions Judge, Patiala on 02.08.2016.

4. It is contended by learned counsel for the petitioners that impugned orders are illegal because the old passage was not convenient to the general public and so, the same was demolished. New passage was carved out by exchange after Gram Panchayat had passed resolution dated 27.11.2015. It is further contended that procedure under Section 137 & 138 Cr.P.C. has not been followed.

5. In reply, it is submitted by respondent No.1 that after verifying the report submitted by Field Kanungo and verifying the fact regarding passage, only conditional order under Section 133 Cr.P.C. was passed on 18.05.2016 and in case petitioners were not satisfied with the said order, then they could approach the respondent No.3 under Section 138 Cr.P.C. to show cause as to why the order passed under Section 133 Cr.P.C. be not made absolute. No such remedy was availed by the petitioners.

6. Respondent No.2, who had initiated the proceedings under Section 133 Cr.P.C., defended the impugned orders.

7. Though no separate reply is filed by respondent No.4 – Gram Panchayat Village Chauhat but learned counsel representing the said respondent placed on file copy of a resolution dated 24.10.2021 passed by Gram Panchayat of the village, as per which previous resolution dated 27.11.2015 was revoked and it was resolved that public passage be restored in the land bearing Khasra No.136 (6-11) as per jamabandi for the year 2009-10 and that the said passage be got vacated from the petitioners. Learned counsel for respondent No.4 further urged that Gram Panchayat is not competent to exchange the land and so, the contention of the petitioners to the effect that land was exchanged, is devoid of merit.

8. Having considered submissions of both the sides, I find no merit in this petition.

9. It was not disputed by the petitioners that land comprised in Khasra No.136 (6-11) is a public passage. Their only contention was that said passage was demolished about 45 years back and that it was exchanged with an alternate passage.

10. Section 133 of the Code of Criminal Procedure provides about the conditional order for removal of nuisance, which may be passed by a District Magistrate or Sub-Divisional Magistrate. The relevant part of the provision is as under:-

“133. Conditional o