Grace, w/o Joseph; Joseph; Airin @ Baby; Sarasamma; Reji v. Rakesh G.D., Justus alias Justuff, and State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933** **Crl.MC.No. 2270 of 2011() -------------------------** **(CRRP.21/2011 of SESSIONS COURT, KOLLAM) ....................** ## **PETITIONERS/REVISION PETITIONER** **--------------------------------** **1. GRACE, W/O. JOSEPH, AGED 48, VII/892, PRAVACHAKA,BHAVANAM,LAKSHAM VEEDU COLONY, MEENATHU CHERRY, SAKTHIKULAGARA.** **2. JOSEPH, AGED 55, PRAVACHAKA,BHAVANAM,LAKSHAM VEEDU COLONY, VII/892,MEENATHU CHERRY, SAKTHIKULAGARA.** **3. AIRIN @ BABY, W/O.JEROME, AGED 45, PRAVACHAKA,BHAVANAM,LAKSHAM VEEDU COLONY, VII/892,MEENATHU CHERRY, SAKTHIKULAGARA.** **4. SARASAMMA, W/O. NATARAJAN, AGED 52, VII/893,PRAVACHAKA,BHAVANAM,LAKSHAM VEEDU COLONY, MEENATHU CHERRY, SAKTHIKULAGARA.** **5. REJI, W/O. XAVIER, AGED 47, VII/900,PRAVACHAKA,BHAVANAM,LAKSHAM VEEDU COLONY, MEENATHU CHERRY, SAKTHIKULAGARA.** - **BY ADVS. SRI.C.RAJENDRAN** - **SMT.R.S.SREEVIDYA** ## **RESPONDENTS/COUNTER PETITIONERS** **----------------------------------** **1. RAKESH.G.D., S/O. DARMASENAN, GOVINDA BHAVAN, MEETHU CHERRY,VII/561, SATHIKULAGARA, KOLLAM 691 581.** **2. JUSTUS @ JUSTUFF, S/O. JOSEPH, AGED 39, VALIYANGADI KIZHKATHIL, LEKSHAM VEEDU COLONY, MEETHU CHERRY, SATHIKULAGARA 691 581.** **JJJ** **...2..** **-2-** **Crl.MC.No. 2270 of 2011()** **3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **R1 BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM) R3 BY PUBLIC PROSECUTOR SMT. R. REMA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21/10/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **JJJ** ## **Crl.MC.No. 2270 of 2011()** ## **APPENDIX** ## **PETITIONERS ANNEXURES:** **ANNEXURE A1: COPY OF THE JUDGMENT DATED 16.09.2010 IN WPC 8105/10 ANNEXURE A2: COPY OF THE PETITION FILED BY THE 1ST RESPONDENT DATED 30.09.2010 ANNEXURE A2(A) A TRUE ENGLISH TRANSLATION OF THE ANNEXURE A2 ANNEXURE A3: COPY OF THE ORDER DATED 14.02.2011 ANNEXURE A4: COPY OF THE ORDER OF SESSION'S JUDGE, KOLLAM DATED 12.04.2011** ## **RESPONDENTS ANNEXURES: NIL** **//TRUE COPY//** **P.A.TO JUDGE** **JJJ** ## **N.K.BALAKRISHNAN, J.** ## **-------------------------------Crl.M.C. No.2270 of 2011 ----------------------------------Dated this the 21[st] day of October 2011** ## **O R D E R** This petition is filed by the petitioners challenging the order passed by the learned sessions Judge in Cr.R.P.No.21/2011. That Crl.R.P. was filed by the petitioner to set aside Annexure A3 order passed by the Sub Divisional Magistrate, Kollam. The first respondent herein had filed a writ petition as W.P.(C)No.8105/2010 for impleading the revision petitioners and others. It was alleged by the first respondent herein that he wanted to establish a power laundry unit for which he was stated to have granted permission by LSGI. The lie of the property was shown in the sketch. There is a Lekshamveedu colony and an Anganvadi. It is stated that a corporation road starts from Altharamoodu running through the Lekshamveedu colony which reaches the property of the petitioners. The Crl.M.C. No.2270 of 2011 -: 2 :- petitioner in the writ petition (Annexure AI) contended that it is a public road whereas the party respondents contended that it is part of the land earmarked for the Anganvadi and if the first respondent herein utilises any portion of that property for his ingress and egress that will adversely affect the interest of the children of the Anganvadi mentioned above. After hearing, the writ petition was disposed of by the Division Bench. It was ordered : “Taking note of the scope of the controversy between the parties, it is ordered that the petitioner and all or any among respondents 3 to 8 will appear before the RDO, Kollam on the 30[th] September, 2010. He will hear the parties and take a decision on the controversy to enable a peaceful resolution of the conflict without, in any manner, impairing the facilities of the Anganwadi children and the rights of the petitioner in relation to the establishment. In spite of the fact that the elections to the local bodies have been ordered, the RDO will resolve the issue within an outer limit of three weeks from 1[st] of October after hearing the parties. It is also clarified that this judgment will not stand in the way of the RDO utilising any of his powers as a Sub Divisional Magistrate in terms of the Code of Criminal Procedure, if need be. Thereafter, the parties will be governed by the decision that the said Crl.M.C. No.2270 of 2011 **==> picture [30 x 10] intentionally omitted <==** officer would issue. The writ petition is ordered accordingly.” It was pursuant to the direction contained in Annexure A1, Annexure A3 order was passed by the Sub Divisional Magistrate, Kollam. 2. The learned counsel for the petitioners vehemently attacked the finding made by the SDM in Annexure A3 order. Challenging the correctness of the same a revision petition was filed before the learned Sessions Judge, Kollam. As per Annexure A4 order, the learned Sessions Judge dismissed the petition stating that the order was passed by the RDO pursuant to the direction contained in Annexure A1 judgment and as such the revision petition is not maintainable. 3. The learned counsel for the petitioners would submit that in Annexure A1 judgment the direction was that the RDO will resolve the dispute. It was also mentioned therein that Anneuxre A1 judgment will not stand in the way of the RDO utilising any of his powers as SDM in terms of Crl.M.C. No.2270 of 2011 -: 4 :- the Code of Criminal Procedure, if need be. The order is in fact passed by the SDM. It is true that the petition was filed by the first respondent before the RDO. But the learned counsel for the petitioners would submit that since the decision was rendered by the SDM, Kollam the contention that it is not an order passed by the learned Magistrate under Sec.133 of the Code cannot be sustained. AnnexureA3 order does not show under what provision the order was passed. Therefore, the learned counsel for the first respondent would submit that it is only an order passed by the RDO pursuant to the direction issued by the Division Bench in the writ petition mentioned above, in support of which the learned counsel would also point out the last sentence in Annexure A3 order : “The judgment in WP(C) 8105/01(K) dt.16.9.2010 of the Hon'ble High Court is hereby complied with.” But that has been taken exception to by the learned counsel for the petitioners since Annexure A1 order states that the RDO can invoke the provisions of the Code also and since Crl.M.C. No.2270 of 2011 -: 5 :- the order was not passed by the RDO but by the SDM it cannot be said that the order is not revisable under Sec.397 of Cr.P.C. There is no contention that Annexure A3 order is not amenable to judicial scrutiny or is not at all justiciable. But according to the learned counsel for the first respondent, the remedy open to the petitioners is to move the civil court for appropriate reliefs. The Supreme Court decision in **Jhunamal alias Devandas** v. **State of Madhya Pradesh and others** reported in [AIR 1988 SC 1973] was cited by the learned counsel, where it was held that an order made under Sec.145 Cr.P.C. deals only with the factum of possession of the party as on a particular day and it confers no title to remain in possession of the disputed property. It was held that the order is subject to decision of the civil Court and the unsuccessful party therefore must get relief only in the civil Court. It was also held that he may have to move the civil Court for declaration and prove a better right to possession. Here, the facts are entirely Crl.M.C. No.2270 of 2011 -: 6 :- different and as such, the aforesaid decision can have no application. The learned counsel for the petitioners would submit that here the provision applicable is only Sec.133(1)(a) of the Code. 4. Both sides have advanced arguments projecting the respective contentions advanced by them with regard to the right of user of the road/way in question. While the contention raised by the petitioners is that if the vehicles are allowed to be plied, it will affect the life and safety of the children of the Anganwadi. According to the learned counsel, when a petition under Sec.133(1)(a) of the Code is filed then all the procedure, step by step as mentioned in Sec.133 to 142 have to be followed. But on going through Annexure A3 order it is clear that the learned SDM has not followed the procedure. It is stated that no conditional order as required under Sec.133(1) as passed by the SDM. The learned counsel for the petitioners would submit that if the first respondent is to succeed he must prove that it is a Crl.M.C. No.2270 of 2011 -: 7 :- public road and that obstruction was caused by the petitioners herein and if so obstruction should be removed. To enter such a finding the parties have to be given opportunity to file their objections and adduce evidence in support thereof. The learned counsel submits that if the parties give evidence, the opposite party is entitled to cross examine the party or witnesses as the case may be. But no such procedure was followed by the SDM. The learned counsel for the first respondent submits that the procedure prescribed under Sec.133 and other sections was not followed evidently because it was not dealt with by the RDO exercising his power as SDM. But ultimately the order was passed by him as SDM. In view of the confusion created in the impugned order and also because the procedure contemplated under Sec.133 and other sections has not been followed, it is just and proper that Annexure-A3 order is quashed and the matter is remanded back to the SDM, Kollam so that the learned Magistrate can proceed under Crl.M.C. No.2270 of 2011 -: 8 :- Sec.133 and other provisions of the Code. But it is made clear that this Court has not made any observation regarding the merits of the case of either parties. In the result, this Crl.M.C. is allowed. Annexure A3 order passed by the Sub Divisional Magistrate, Kollam is set aside and the case is remanded to the Sub Divisional Magistrate Court, Kollam. To expedite the matter, the parties are directed to appear before the SDM, Kollam on **2.11.2011** . After following the procedure prescribed, the learned SDM will pass appropriate orders at the earliest. **N.K.BALAKRISHNAN, JUDGE.** Jvt