Kerala High Court
Swaminathan vs Prabhakaran.K.V on 1 December, 2011
Author: V. Chitambaresh
Bench: V.Chitambaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
THURSDAY, THE 29TH DAY OF MARCH 2012/9TH CHAITHRA 1934
WA.No. 2004 of 2011 () IN WPC/28024/2011
-----------------------------------------
AGAINST THE ORDER/JUDGMENT WPC.28024/2011 DATED 01.12.2011
APPELLANT(S):
------------
SWAMINATHAN,
NOCHIPARAMBA HOUSE,
PUTHANTHARA, THIRUVAZHIYAD,
NENMARA, CHITTUR TALUK, PALAKKAD.
BY ADV. SRI.T.K.SANDEEP
RESPONDENT(S):
--------------
1. PRABHAKARAN.K.V
S/PO. VELAYUDHAN THANDAN
KANDANKULANGARA HOUSE,
PUTHANTHARA, THIRUVAZHIYAD P.O.
NENMARA, CHITTUR,
PALAKKAD PIN 678 510.
2. MUTHU RAWTHER, S/O. SULAIMAN
PUTHANTHARA, THIRUVAZHIYAD P.O.
NENMARA, CHITTUR,
PALAKKAD PIN 678 510.
3. DISTRICT COLLECTOR
PALAKKAD PIN 678 001.
4. THE SUB DIVISIONAL MAGISTRATE,
PALAKKAD PIN 678 001.
5. TAHSILDAR,
CHITTUR TALUK,
PALAKKAD PIN 678 101.
BY ADV. SRI.SAJAN VARGHEESE K.
BY ADV. SRI.LIJU. M.P
BY ADV. SPECIAL GOVERNMENT PLEADER SMT. GIRIJA GOPAL
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29-03-2012, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
WA NO. 2004/2011
APPENDIX
ANNEXURE I : TRUE COPY OF THE ORDER DATED 27.06.2011 IN I.A. 2959/2010 IN
O.S. 605/2010 BEFORE THE MUNSIFF'S COURT, CHITTUR.
ANNEXURE II : TRUE COPY OF THE COMMISSION REPORT DATED 24.08.2011
SUBMITTED IN O.S. 605/2010 BEFORE THE MUNSIFF'S COURT,
CHITTUR.
ANNEXURE III : TRUE COPY OF THE ROUGH SKETCH SHOWING THE DTAILS OF
THE DISPUTED PROPERTY.
/TRUE COPY/
P.A. TO JUDGE.
MANJULA CHELLUR Ag. C.J. &
V. CHITAMBARESH, J
---------------------------------------
W.A. NO. 2004 OF 2011
----------------------------------
Dated this the 29th day of March, 2012
JUDGMENT
Manjula Chellur, Ag. C. J.
Heard the learned counsel for the appellant, learned counsel for the party respondents as well as the Special Government Pleader Smt. Girija Gopal.
2. The writ appeal was filed aggrieved by the judgment of the learned single Judge dated 01.12.2011. It is necessary to narrate certain facts in order to understand the scope of the writ petition before the single Judge. Before the learned single Judge, the party respondents herein sought for implementation of Ext.P9 order passed by the Sub Divisional Magistrate in 133 proceedings under the Code of Criminal Procedure. The learned single Judge, as the appellant herein did not appear before the court proceeded to pass the following judgment.
2 WA No. 2004/2011
"The prayer sought in this writ petition is for the implementation of Ext.P9, an order passed by the 2nd respondent in 133 proceedings under the Code of Criminal Procedure. Although O.S. 605/2010 filed by the 4th respondent is pending before the Munsiff Court, Chittur, it is seen that an interlocutory order of injunction passed by the Munsiff Court was stayed by the District Court by Ext.P12 order passed in C.M.A. 60/11. Therefore there is no impediment in implementing Ext.P9. In that view of the matter I dispose of the writ petition directing that on production of a copy of this judgment, the 2nd respondent will ensure that Ext.P9 order is implemented forthwith.
The writ petition is disposed of
accordingly."
3. Prior to this writ petition in the year 2010 an application under 133 Cr.P.C. came to be filed by the writ petitioner before the Sub Divisional Magistrate. A conditional order as per Ext.P9 came to be passed on 16.03.2011 which reads as under:
"Where as I am satisfied from the report No. 152/2010 dated 27.08.2010 of Village Officer, Thiruvazhiad that the opposite party caused an obstruction to pathway and tractor way and also obstructed the flow of canal water by which the paddy cultivation is disturbed.
I, P. Manikandan, Sub Divisional Magistrate, Palakkad do hereby direct and require the opposite party to cut and remove the obstruction of pathway and tractor way and 3 WA No. 2004/2011 also to restore the flow path of canal water within one month from the date of receipt of this order.
If you have any objection in doing so, you are requested appear before Tahsildar and Executive Magistrate, chittur at 11 a.m. on 20.04.2011 to show cause why this order should not be made absolute and enforced."
Subsequently on 02.06.2011, Ext.P10 is passed as follows:
"On enquiry made on your complaint, concerned village officer informed me that Sri. Swaminathan has filed O.S. 605/2010 (I.A. No. 2959/2011) before the Munsiff's Court, Chittoor. It is informed you that action will be taken by the RDO on the basis of the final decision in the above suit."
Section 133 Cr.P.C. with reference to public nuisances reads as under:
"Conditional order for removal of nuisance - (1) Whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers-
(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or
(b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the 4 WA No. 2004/2011 health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or
(c) that the construction of any building, or, the disposal of the any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or
(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or
(e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or
(f) that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order -
(i) to remove such obstruction or nuisance; or 5 WA No. 2004/2011
(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed or
(iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or
(iv) to remove, repair or support such building, tent or structure, or to remove or support such three; or
(v) to fence such tank, well or excavation; or
(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order;
or, if he objects to to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.
(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court.
Explanation:- A "public place" includes also property belonging to State, camping grounds and grounds left unoccupied for sanitary or recreative purposes."
4. Reading of Section 133 contemplates a conditional order for removal of nuisance with reference to public place or way etc. as stated above could be ordered by the Sub Divisional Magistrate or District Magistrate. After passing 6 WA No. 2004/2011 conditional order, he has to issue a show cause notice to the opposite party and the opposite party is required to appear before the concerned Magistrate and seek whether he admits allegation against him or he denies. If there is a denial Section 137 procedure has to be followed which reads as under:
"Procedure where existence of public right is denied - (1) Where an order is made under Section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under section 138, inquire into the matter.
(2) If in such inquiry the magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Court; and if he finds that there is no such evidence, he shall proceed as laid down in section 138.
(3) A person who has, on being questioned by the magistrate under sub section (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make may such denial."7 WA No. 2004/2011
5. In the present case much prior to 16.03.2011 Original Suit 605/2010 came to be filed by the present appellant against the party respondents seeking an order of temporary injunction claiming absolute right, title and interest over the suit schedule property. Though an order of injunction came to be passed in favour of the appellant, in a miscellaneous appeal filed by the party respondents, the said order was stayed. As on today, there is stay of the order of injunction granted in favour of the appellant.
6. From the statements of the present party respondents what we gather is, he is not denying title of the appellant over the suit schedule property as such but he claims right of way through the property. The question is whether it is treated as public road in any of the revenue records or it is a private property of the appellant. If it is a private property of the appellant, still the party respondent herein who is a defendant before the trial court can claim easementary right of way on the ground that there is no other access to reach his property except through the way which is 8 WA No. 2004/2011 in existence in the suit schedule property belonging to the appellant herein.
7. As a matter of fact, if such a right of way was denied by the appellant, the proper recourse open to the party respondent herein was to approach the civil court and seek for declaration of right of easementary right, i.e., right of way through the property of the appellant herein without adhering to such recourse he approached the RDO under 133 and got an order as per Ext.P9. The RDO concerned as a matter of fact though not a detailed order passed in Ext.P10 as stated above. But the fact remains on account of pendency of O.S. 605/2010, he kept the proceedings in abeyance waiting for the decision of the civil suit. In that view of the matter, an order under 138, i.e., final order on the application of 133 could be passed only after disposal of the civil suit deciding the rights of the property over the so called right of way.
8. The question is whether the implementation of the judgment of the single Judge could come in the way of procedural aspect as contemplated under Section 133 to 138. 9 WA No. 2004/2011 It abundantly clarifies the position how the procedure has to be followed when an application complaining obstruction to the public place, public way etc. is complained. As already stated above, admittedly the property in question is the private property of the appellant and defendant is claiming only easementary right of way. In that view of the matter, when the Sub Divisional Magistrate passes Ext.P10 he was justified in doing so as the civil suit was pending to determine the civil right of the parties. If plaintiff was in lawful possession of the property, the civil court has to depending upon the evidence let in by the parties has to decide the rights of defendant whether he can use the right of way or not.
9. In that view of the matter, the very entertainment of the writ petition by the single Judge was misconceived. The writ petitioner ought not to have approached the High court. If the very writ petition was not maintainable, the consequential order has no legal sanctity. In other words, it is nonest in the eye of law. Therefore we are of the opinion that the judgment of the learned single Judge deserves to be set 10 WA No. 2004/2011 aside. However in order to put an end to proceedings under Section 133 initiated by the respondent herein, we direct the RDO to receive the detailed objection along with the documents if any, to be produced by the appellant herein if he he has not produced already before the RDO. After disposal of the civil suit, the RDO shall decide 133 application.
With these observations, the writ appeal is allowed.
MANJULA CHELLUR ACTING CHIEF JUSTICE V. CHITAMBARESH JUDGE ncd