VASANTHY, SIVAN, AND BALAKRISHNAN PANICKER v REVENUE DIVISIONAL OFFICER (SUB DIVISIONAL MAGISTRATE), FORT KOCHI; DR. HARIDAS; STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933** ## **Crl.Rev.Pet.No. 3978 of 2010()** **------------------------------------------** ## **MC.164/10/D OF SUB DIVISIONAL MAGISTRATE , FORT KOCHI.** **....................** ## **PETITIONERS/APPELLANTS** **----------------------------------------** **1. VASANTHY, AGED 68 YEARS, W/O.MADHAVAN, NECUMBALLIKKATTIL, KUMBALAM. P.O., ERNAKULAM.** ## **2. SIVAN, AGED 57 YEARS,** **S/O.SANKARA KAIMAL, THANDASSERY, PUTHANPURAKKAL, KUMBALAM.P.O., ERNAKULAM.** **3. BALAKRISHNAN PANICKER, AGED 77 YEARS, S/O.SANKARA KAIMAL, THANDASSERY, PUTHANPURAKKAL, KUMBALAM.P.O., ERNAKULAM.** **BY ADV. SRI.ANTONY MATHEW** ## **RESPONDENT(S):** **------------------------** ## **1. REVENUE DIVISIONAL OFFICER** - **(SUB DIVISIONAL MAGISTRATE), R.D.O. OFFICE, FORT KOCHI, ERNAKULAM DISTRICT. PIN-682 001.** **2. DR.HARIDAS, AGED 75 YEARS,** - **S/O.NARAYANAN, SAI SEVA ASRAM, NO.223/XVI, KUMBALAM.P.O., ERNAKULAM DISTRICT. 682 506.** **3. STATE OF KERALA,** - **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31.** **R1 & R3 BY PUBLIC PROSECUTOR SMT.SEENA R. R2 BY ADV. DR.V.N.SANKARJEE, SRI.G.ANANTHANARAYANAN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/11/2011, THE COURT ON 02/12/2011 PASSED THE FOLLOWING:** **rs** **Crl.Rev.Pet.No. 3978 of 2010** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE A: COPY OF THE LETTER DATED 24/06/2008 ISSUED BY DY. COLLECTOR (LR) FOR AND ON BEHALF OF THE DISTRICT COLLECTOR, ERNAKULAM.** **ANNEXURE B: COPY OF THE PROCEEDINGS BY R.D.O., FORT KOCHI. ANNEXURE C: COPY OF THE APPLICATION SUBMITTED BEFORE THE SUB DIVISIONAL MAGISTRATE, FORT KOCHI DATED 16/07/2009.** **ANNEXURE D: COPY OF THE ORDER PASSED BY SUB DIVISIONAL MAGISTRATE DATED 26/06/2010.** **ANNEXURE E: COPY OF THE SAID ORDER PASSED BY SUB DIVISIONAL MAGISTRATE DATED 16/07/2010.** **ANNEXURE F: COPY OF THE ORDER DATED 29/07/2010 ISSUED BY SUB DIVISIONAL MAGISTRATE.** **ANNEXURE G: COPY OF THE ORDER DATED 16/08/2010 ISSUED BY SUB DIVISIONAL MAGISTRATE.** **ANNEXURE H: COPY OF THE ORDER DATED 23/09/2010 ISSUED BY SUB DIVISIONAL MAGISTRATE.** **ANNEXURE I: COPY OF THE PROCEEDINGS OF DISTRICT COLLECTOR, ERNAKULAM DATED 01/11/2008. ANNEXURE J: COPY OF THE COMPLAINT SUBMITTED BEFORE THE ASSISTANT COMMISSIONER OF POLICE, THRIKKAKARA DATED 31/01/2011.** ## **RESPONDENT'S ANNEXURES:NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **rs** ## **S.S.SATHEESACHANDRAN, J.** **----------------------------------------------Crl.R.P.No.3978 of 2010 ----------------------------------------------Dated this the 2[nd] day of December, 2011** ## **O R D E R** The revision petitioners, three in number, are the opposite parties in M.C.No.164/10/D, a proceeding under Section 133 of the Code of Criminal Procedure {for short “the Code”} before the Sub Divisional Magistrate, Fort Kochi. A preliminary order issued by the aforesaid magistrate as against the petitioners was made absolute with direction to them to remove the obstruction over a pathway, permitting the petitioners in the proceeding to pass vehicle through such pathway. That order is assailed in the revision. 2. Petitioner in the aforesaid proceedings (hereinafter referred to as 'the ## **Crl.R.P.No.3978 of 2010** ## **:: 2 ::** complainant') alleged before the magistrate that a pathway leading to his property is obstructed by the opposite parties erecting an iron bar across that way and putting a lock on that bar. The Sub Divisional Magistrate, after causing enquiry over the allegations made in the complaint through the Village Officer and the Tahsildar and being satisfied that invoking of his jurisdiction under Chapter XB of the Code was called for, issued a preliminary order dated 16.7.2010 directing the opposite parties (revision petitioners) to remove the obstructions to the pathway and to show cause why the order should not be made absolute. In response to such notice, the opposite parties appeared and contended that there was no pathway through their property. The Sub Divisional Magistrate, negativing the objection made the preliminary order absolute. ## **Crl.R.P.No.3978 of 2010** ## **:: 3 ::** Propriety, legality and correctness of that order is assailed in this revision. 3. The learned counsel for the revision petitioners contending that the very existence of the pathway was denied by them in response to the preliminary order issued and, that being so, without conducting an enquiry following the procedure covered by Section 137 of the Code, the magistrate has no jurisdiction to make the preliminary order absolute, as was done in the present case. The learned counsel relied on Mohammed Master v. Beeran {1980 KLT 680} and also Varkey Ouseph v. Paily Mathew {1987(1) KLT SN 56, Case No.78} to contend that the magistrate could exercise jurisdiction only in relation to a way which is or may be lawfully used by the public and it cannot be used to wreak private vengeance or for settling private disputes ## **Crl.R.P.No.3978 of 2010** ## **:: 4 ::** between the parties. Procedural irregularities in the passing of the final order where the very existence of the pathway has been denied by the revision petitioners, the opposite parties in the proceedings, are also raised by the counsel to impeach the order of the Sub Divisional Magistrate as unsustainable under law. 4. Per contra, the learned counsel for the complainant contended that the pathway forming part of a road puramboke which is the only access to his property had been blocked by the revision petitioners with the ulterior motive of prevventing him from enjoying his property in which he is engaged in the cultivation of herbal medicinal plants. Closeby properties to his property have been dumped with soil to raise their level and as a result of which water logging in his property was caused and thereupon, to ## **Crl.R.P.No.3978 of 2010** ## **:: 5 ::** continue his cultivation he had moved and obtained orders for reclaiming his land, but, the opposite parties objected to such reclamation to pressurise him to satisfy their illegal demands for substantial sum. Blockage of the pathway to his property was also made with such mala fide and oblique motives, according to the counsel. No interference with the order passed by the Sub Divisional Magistrate is warranted in exercise of revisional jurisdiction, is the submission of the counsel for the complainant. 4. Records of the case were called for from the Sub Divisional Magistrate. Perusing the records of the case, it is noticed that the disputes as between the parties to the proceedings commenced much earlier, in 2008. Previously there was another proceeding pursuant to a complaint filed by the petitioner ## **Crl.R.P.No.3978 of 2010** ## **:: 6 ::** before the magistrate alleging that the opposite parties are removing soil from the pathway leading to his property and on account of that, his cultivation of herbal medicinal plants in his property is seriously affected. It is seen that the Sub Divisional Magistrate directed the Tahsildar to convene a meeting of all the parties and also the panchayat officials to resolve the dispute amicably, but with a direction that decision will be taken without in any way resulting in encroachment over Government puramboke land. The report sent by the Tahsildar in that proceeding which forms part of the file indicated that there was much force in the complaints made as to the obstruction to the pathway and removal of soil from the thodu puramboke. Though the survey plans indicated that the thodu had a width of 4.5 metres, the ## **Crl.R.P.No.3978 of 2010** ## **:: 7 ::** channel at present is only half metre and the rest has become a road. So far as the portion of the thodu puramboke, covered by the present proceedings as well, subject to approval from the panchayat leaving sufficient width for the thodu the rest can be used as a road, was the opinion given by the Tahsildar. The report of the Tahsildar to the Sub Divisional Magistrate stating as above is dated 18.02.2009. Meanwhile, the complainant had also applied for filling up his land stating that all adjacent properties, previously paddy lands, had been filled up and that had resulted in causing water logging in his property and thus affecting the cultivation of herbal medicinal plants in his property. Apart from collecting reports from the subordinate officers, the Sub Divisional Magistrate also conducted a local inspection and being satisfied ## **Crl.R.P.No.3978 of 2010** ## **:: 8 ::** that the request made by the complainant for filling up his land was essential as surrounding paddy lands had already been filled up, causing water logging in his property, he was granted permission by order dated 01.11.2008 to fill up his 50 cents of land in the same level of the surrounding lands. Petitioner was carrying on cultivation of herbal medicinal plants in his property and all surrounding paddy lands had already been filled up, were taken note of by the Sub Divisional Magistrate, to grant him permission to fill up his land. Subsequent to such orders, the present proceedings have arisen. The file of the Sub Divisional Magistrate would disclose that the complainant's attempt to fill up his land were blocked and obstructed, and the complainant had to approach the Sub Divisional Magistrate again to remove the obstructions. ## **Crl.R.P.No.3978 of 2010** ## **:: 9 ::** The materials covered by the file of the Sub Divisional Magistrate would show that the obstruction caused over the pathway leading to the property of the complainant, over which, after conducting a local inspection, the magistrate was satisfied of the need for its reclamation, to some extent got assistance from persons dealing in real estate business, and also the local police. The denial of existence of a pathway canvassed by the revision petitioners (opposite parties in the proceedings) has necessarily to be looked into in the backdrop of the sequence of events stated above, which would indicate that there was continuous obstruction to the complainant in enjoyment of his property by some people in the locality. Whatever pathway that was claimed by him is shown to be situate in a thodu puramboke. The report of the ## **Crl.R.P.No.3978 of 2010** ## **:: 10 ::** revenue officials and previous orders passed by the Sub Divisional Magistrate in the earlier proceedings demonstrate the existence of a way in the thodu puramboke as enjoyed by the complainant and, later, obstruction caused thereto by putting an iron bar across that pathway and locking it. The magistrate has not complied with the procedural requirements in making the preliminary order absolute, which has been raised as a fatal flaw to impeach his order challenged in the revision, cannot be given any consideration where the proved facts as disclosed by the records of the case show that a pathway passing through road puramboke which could be claimed by any member of the public for his use and enjoyment, was obstructed solely to cause injury and prevent the complainant from enjoying his property. ## **Crl.R.P.No.3978 of 2010** ## **:: 11 ::** 5. Revisional jurisdiction is undoubtedly discretionary in nature. Such discretion could be exercised only in order to prevent substantial injustice or where question raised involved a point of law of general importance justifying such interference by way of revisional jurisdiction. The party who assails the order of the inferior court must show and satisfy his entitlement for the exercise of the discretionary relief in his favour. What is seen from the file is that after the passing of the final order making the preliminary order absolute, then alone, the first revision petitioner, and she alone filed objections. The only objection that was raised by her was that there was no pathway through her property denying the obstruction to the pathway alleged by the complainant. The existence of a pathway as running through the road puramboke ## **Crl.R.P.No.3978 of 2010** ## **:: 12 ::** having been established in the previous proceedings conducted by the revenue officials, there was absolutely no merit in such belated objections canvassed for after the passing of the final order. The decisions relied on by the counsel, that the proceedings under Section 133 of the Code could not be invoked to settle disputes of private parties, have no application to the present case. What is involved in the present case is obstruction caused to a pathway which formed part of a thodu puramboke over which none of the revision petitioners could have claimed any right, and in fact, did not set up any right also. So much so, the procedural irregularity in the passing of the final order by the Sub Divisional Magistrate, making the preliminary order absolute, that alone, would not come to the assistance of the revision ## **Crl.R.P.No.3978 of 2010** ## **:: 13 ::** petitioners, the opposite parties in the proceedings to assail his order, to invoke the revisional jurisdiction of this court. The order passed by the Sub Divisional Magistrate in the given facts of the case does not warrant any interference at all. Revision dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.