HP High Court Upholds SDM's Order to Remove Path Obstruction on Private Land in Kinnaur Under Section 147 CrPC

The Himachal Pradesh High Court dismissed a criminal revision against an SDM's order directing co-owners to remove an obstruction on a customary village path in Khasra No.720, Kinnaur, finding no illegality in the exercise of power under Section 147 CrPC.

The High Court of Himachal Pradesh, Shimla, on 5 May 2026 dismissed a criminal revision filed by two co-owners of land in village Basteri, Tehsil Sangla, District Kinnaur, who had challenged an order passed by the Sub-Divisional Magistrate (SDM), Kalpa at Reckong Peo, directing them to remove an obstruction they had erected on a path running through Khasra No.720. Justice Sandeep Sharma, sitting singly, found that the SDM had acted within the scope of Section 147 of the Code of Criminal Procedure, had afforded the petitioners an opportunity of hearing, and had not decided any question of title. The court also held that a prior Civil Court injunction in a separate dispute between different co-owners did not bar the SDM's preventive order.

The Dispute Before the High Court

Respondent No.1, Hir Chand, filed a complaint before the Police at Sangla alleging that petitioners Pramod Kumar and Padam Singh had blocked a path — described as gair mumkin rasta — comprising Khasra No.720 in village Basteri, Tehsil Sangla, District Kinnaur. The Station House Officer, Police Station Sangla, investigated the complaint and concluded that if the obstructed path was not opened, there was a likelihood of breach of peace in the area. The Police accordingly filed a Kalandra under Section 147(4) CrPC before the SDM, Kalpa at Reckong Peo, on 22 June 2023.

The SDM immediately directed the Tehsildar, Sangla, to submit a spot report. The Tehsildar's report dated 24 June 2023 confirmed that the path in dispute lay in Khasra No.720, measuring 00-02-66 hectare, belonging to one Basti Ram and others, and that it had been obstructed by Padam Singh and Pramod Kumar, the petitioners. The Tehsildar further noted that under local customary law, no person can stop another person's path leading to their fields, and that this position was specifically recorded in the Wajib-Ul-Arz of the area.

The SDM issued notice to both the complainant and the petitioners, recorded their statements on 26 June 2023, and on the same date passed the impugned order directing the petitioners to remove the obstruction by 10:00 am on 27 June 2023. The order further provided that if the petitioners failed to comply, the Tehsildar, Sangla, was to remove the obstruction with the assistance of the SDO, PWD, Sangla, in police presence.

Aggrieved, the petitioners initially approached the High Court under Section 482 CrPC. A Coordinate Bench, by order dated 11 January 2024, accepted the respondent's objection that the petition was not maintainable under Section 482 CrPC given the availability of a revision remedy. Subsequently, by order dated 22 July 2024 in Cr.MP No.1275 of 2024, another Coordinate Bench allowed the petitioners' application and converted the petition into a Criminal Revision, which was numbered Cr. Revision No.465 of 2024.

Petitioners' Contentions

Mr. Kul Bhushan Khajuria, appearing for the petitioners, raised three principal arguments. First, he submitted that no opportunity of being heard was ever afforded to the petitioners before the SDM passed the impugned order. Second, he argued that since Khasra Nos.719 and 720 were owned and possessed by the petitioners, the SDM had no authority to direct their eviction from their own land, and that any question of title could only be adjudicated by a Civil Court. Third, he contended that the petitioners had filed a civil suit before the Civil Court in which a restraint order had been passed in relation to the suit land comprising Khasra No.720, and the SDM could not override that Civil Court order.

Mr. Khajuria also argued that the SDM had travelled beyond his jurisdiction, that no cogent evidence had been placed on record to show that the land had been used by the complainant and other villagers since time immemorial, and that the impugned order had been passed in a hasty manner.

How the Bench Reasoned

Justice Sandeep Sharma examined the material on record and addressed each contention in turn.

On the question of hearing, the court found that the SDM had issued notice to both the complainant and the petitioners, recorded their statements on 26 June 2023, and only thereafter passed the impugned order. The argument that no opportunity was afforded was therefore rejected on the face of the impugned order itself.

On the scope of Section 147 CrPC, the court explained that the provision empowers an Executive Magistrate, upon being satisfied from a police report or other information that a dispute likely to cause breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction, to summon the parties, record their statements, and, if he thinks necessary, make an order prohibiting interference with the exercise of such right — including an order for removal of any obstruction. The court held that the SDM had not decided the question of title; he had only passed a preventive order to maintain peace pending any declaration by a competent Civil Court.

The court noted that the complainant's case, as set out in his original complaint and reiterated in his statement before the SDM, was not that Khasra No.720 belonged to him, but that he and other villagers had been using the path for 70 to 80 years to reach their houses and fields, and that the same path had been used by the local Devta and villagers to go to the Panchayat crematorium since time immemorial. This version was corroborated by statements of the Up-Pradhan, the Patwari, and other villagers recorded in the Kalandra. The Tehsildar's report, grounded in the Wajib-Ul-Arz, further confirmed the customary right of passage.

The court also addressed the proviso to Section 147 CrPC, which bars an order where the right has not been exercised within three months before receipt of the police report (or, for seasonal rights, during the last relevant season). The court held that this restriction was not a bar in the present case because the complainant's claim — substantiated by villagers and revenue officials — was of continuous use over many years.

On the Civil Court injunction, the petitioners had relied on an order dated 8 October 2020 passed by the Senior Civil Judge, Kinnaur at Reckong Peo. Justice Sharma examined that order carefully and found that the dispute in that case was entirely between co-owners inter se. The applicant in that case, one Pyare Lal, had sought to restrain respondents Balbir Singh, Sindra, and Ramesh Kumar from creating a new path through Khasra Nos.719 and 720. The injunction was made absolute against those three named respondents only. The present petitioners were not parties to that proceeding, and the complainant Hir Chand and other villagers were also not restrained by that order. The court therefore found that the Civil Court injunction had no bearing on the SDM's order in the present case.

The court further observed that the SDM's order would remain in force until set aside by a superior court or until a competent court declared that Khasra No.720 was owned and possessed exclusively by the petitioners and that the respondents and other villagers had no right to use it. The court also noted that during the proceedings before the SDM, the petitioners themselves had agreed to permit the private respondents to use the path on a temporary basis.

Outcome

Justice Sandeep Sharma found no illegality or infirmity in the order dated 26 June 2023 passed by the SDM, Kalpa at Reckong Peo. Cr. Revision No.465 of 2024 was dismissed. All pending miscellaneous applications were also disposed of.