Crl.R.P.No.1965 of 2013

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 19[th] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945 CRL.REV.PET NO. 1965 OF 2013 AGAINST THE ORDER DATED 27.05.2013 IN CMP No.41/2002 ON THE FILE OF SUB DIVISIONAL MAGISTRATE, TIRUR ## REVISION PETITIONERS/PETITIONERS: 1 M.V.KUNJAN, S/o PANGU, PALLIKKARA AMSOM, VADAKKUMMURI DESOM, NANNAMMUKKU P.O., PONNANI TALUK, MALAPPURAM DISTRICT. 2 ADIMA, S/o CHEMBAN, PALLIKKARA AMSOM, VADAKKUMMURI DESOM, NANNAMMUKKU P.O., PONNANI TALUK, MALAPPURAM DISTRICT. ADDL.3 SANKARAN A., AGED 61 YEARS, S/o GOVINDAN NAIR, AMBATTAYAIL HOUSE, PALLIKARA AMSOM, VADAKKUMURI DESOM, POST, MUKKUMTHALA, PONNANI TALUK, MALAPPURAM DISTRICT, PIN 679 374. ADDL.4 P. ACHUTHAKURUP, AGED 70 YEARS, S/o RAVUNNI NAIR, PALAKKAVIL HOUSE, PALLIKARA AMSOM, VADAKKUMMURI DESOM, POST, MUKKUMTHALA, PONNANI TALUK, MALAPPURAM DISTRICT, PIN 679 374. (ADDITIONAL REVISION PETITIONERS 3 AND 4 ARE IMPLEADED AS PER ORDER DATED 19.03.20204 IN Crl.M.A. No.2/24 IN Crl.R.P. No.1965/13) BY ADVS. SRI.T.SETHUMADHAVAN SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SMT.VANDANA MENON SMT. PREETHI P.V. Crl.R.P.No.1965 of 2013 2 ## RESPONDENTS/COUNTER PETITIONERS: 1 P.GOPINATHAN, S/o LATE KRISHNAN NAIR, PALAKKATTU HOUSE, MOOKKUTHALA P.O., MALAPPURAM DISTRICT, PIN-679574. 2 PANKAJAM, W/o P.GOPINATHAN, PALAKKATTU HOUSE, MOOKKUTHALA P.O., MALAPPURAM DISTRICT, PIN-679574. 3 SAJEEV, S/o P.GOPINATHAN, PALAKKATTU HOUSE, MOOKKUTHALA P.O., MALAPPURAM DISTRICT, PIN-679574. 4 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SRI.JOBY JACOB PULICKEKUDY BY SR PUBLIC PROSECUTOR SRI C N PRABHAKARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR HEARING ON 19.03.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.R.P.No.1965 of 2013 3 ## **ORDER** A complaint lodged (information supplied) under Section 133 Cr.P.C. was dismissed and proceedings were dropped under Section 138(3) Cr.P.C. by the Sub Divisional Magistrate. Aggrieved by the said order, the complainant came up in revision. 2. The allegation in the complaint is pertaining to a way and attempt on the part of respondent to construct a compound wall. The said dispute will not come under the purview of the jurisdiction vested under Section 133 Cr.P.C., which is extracted below for reference: ## _**“133. 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_ Crl.R.P.No.1965 of 2013 4 _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 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 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_ Crl.R.P.No.1965 of 2013 5 _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_ _(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_ Crl.R.P.No.1965 of 2013 6 _(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 trees; 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 so 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.”_ 3. Clause (a) to sub Section (1) of Section 133 Cr.P.C. deals with removal of an obstruction and nuisance. It is enlightened by the learned counsel for the petitioner that the conjunction used is 'or' between the word obstruction and nuisance. So it has to be interpreted distinctly, bearing in mind the Crl.R.P.No.1965 of 2013 7 legislative intention while incorporating clause (a) to sub section (1) of Section 133 Cr.P.C. It includes a right to remove an unlawful obstruction or nuisance from any public place or from any way, river or channel, provided that it should be pertaining to a right lawfully used by the public. In fact, two expressions were incorporated in Clause (a) to Sub Section (1) of Section 133 Cr.P.C. that any unlawful obstruction or nuisance pertaining to a right lawfully used by the public. The word used 'lawfully used by the public' has got its own impact while entertaining an application under Section 133(1) Cr.P.C. It cannot be treated or substituted in the place of jurisdiction that can be exercised by the Civil Court adjudicating a civil dispute. It is submitted by the learned counsel for the respondent that the very case advanced by the petitioners is resting on the claim of right of way, which, according to them, is a public way. It was Crl.R.P.No.1965 of 2013 8 disputed and denied by the respondent, the owner of the property (claimed to be the owner of the property). Mere user of the way by the public will not bring the same within the purview of a public way/public property. Hence, there is no scope for exhausting the jurisdiction under Section 133(1) Cr.P.C. When the dispute is of civil nature pertaining to a way or right claimed by the parties, civil court alone will have jurisdiction to adjudicate the dispute. It is a matter to be agitated before a Civil Court by a proper civil suit in which the Sub Divisional Magistrate cannot exhaust the jurisdiction under Section 133 Cr.P.C. The legal position rendered by this court in **Augusthy v. Varkey [1989 (1) KLT 654]** is standing on a different pedestal. When there is obstruction to the free flow of the river, irrespective of whether the property is private or not, it can be removed by exhausting the remedy under Crl.R.P.No.1965 of 2013 9 Section 133 Cr.P.C. But, when there is a dispute of civil nature, the Sub-divisional Magistrate cannot usurp the jurisdiction of a civil court to adjudicate and decide the issue. Three Judge Bench of Apex Court in **Suhelkhan Khudyarkhan and Another v. State of Maharashtra and others [2009 (3) KHC 555]** had the occasion to consider the application of the said provision. Hence, revision fails, but without prejudice to the right of parties to agitate the issue as per the lex fori and lex loci by way of a civil suit. The Criminal Revision Petition is dismissed accordingly. Sd/- ## **P.SOMARAJAN** ## **JUDGE** DMR/- Crl.R.P.No.1965 of 2013 10 ## **APPENDIX OF CRL.REV.PET 1965/2013** PETITIONERS' ANNEXURES: ANNEXURE A TRUE COPY OF THE COMPLAINT FILED BY UDARAPPAN DATED 08.08.2002. ANNEXURE B TRUE COPY OF THE NOTICE ISSUED BY THE REVENUE DIVISIONAL OFFICER DATED 9.8.2002. ANNEXURE C TRUE COPY OF THE REPORT OF THE SUB INSPECTOR OF POLICE, CHANGARAMKULAM DATED 11.08.2002. ANNEXURE D TRUE COPY OF THE ORDER OF THE SUB DIVISIONAL MAGISTRATE, TIRUR DATED 4.9.2002. ANNEXURE E TRUE COPY OF THE AFFIDAVIT FILED BY THE PETITIONERS BEFORE THE SUB DIVISIONAL MAGISTRATE, TIRUR. ANNEXURE F TRUE COPY OF NOTICE ISSUED FROM THE OFFICE OF THE SUB DIVISIONAL MAGISTRATE, TIRUR, DATED 27.04.2009. ANNEXURE G TRUE COPY OF THE JUDGMENT IN W.P.(C) No.12579/2010 DATED 21.6.2010. ANNEXURE H TRUE COPY OF ORDER IN R.P.963/2010 IN W.P. (C) No.12579/2010 DATED 18.10.2011. ANNEXURE I TRUE COPY OF COMPLAINT FILED BY THE PETITIONERS AND OTHERS BEFORE THE HON'BLE CHIEF MINISTER DATED 03.02.2013. Crl.R.P.No.1965 of 2013 11 |ANNEXURE J|TRUE COPY OF PETITION SUBMITTED BY THE 1st| |---|---| ||PETITIONER BEFORE THE SUB DIVISIONAL| ||MAGISTRATE DATED 24.04.2013.| |ANNEXURE K|TRUE COPY OF NOTICE RECEIVED FROM THE| ||OFFICE OF THE DISTRICT COLLECTOR,| ||MALAPPURAM DATED 10.05.2013.| |ANNEXURE L|TRUE COPY OF PETITION FILED BY THE 1st| ||PETITIONER BEFORE THE SUB DIVISIONAL| ||MAGISTRATE DATED 24.05.2013.| |ANNEXURE M|TRUE COPY OF THE ORDER OF THE SUB| ||DIVISIONAL MAGISTRATE, TIRUR IN CMP| ||No.41/2002 DATED 27.05.2013.| // TRUE COPY // P.A. TO JUDGE