POULOSE Vs. PADMANABHAN NAIR

JUDGEMENT

(1.) This revision petition arises from the order of the Executive 1st Class Magistrate, Trichur directing the revision petitioners (counter petitioners before the Magistrate) to remove the obstruction caused by them to the chal known as 'Neelara thodu' used by the respondent and others for drainage and irrigation purposes. A petition was filed before the Executive 1st class Magistrate by the present respondent complaining of the obstruction and the consequent difficulty caused in raising the cultivation in the adjoining paddy fields. The counter petitioners revision petitioners herein) appeared before the Magistrate on receipt of the notice and denied the alleged obstruction. Revision petitioner No. 2 is a labourer employed by the revision petitioner No. 1. The petition was field on 17-5-68 and on 31-7-68 the court issued a preliminary notice calling upon the counter petitioners (revision petitioner herein) to remove the obstruction or to appear before the Magistrate at 11 a.m. on 23-8-68. On receipt of the notice the counter petitioners appeared and filed written objections (written statement was filed on 16-11- 68). Thereupon arguments were heard and the learned Magistrate passed a confirmation order under S.137(3) Cr. P.C. That order was passed on 24-4-70 From that order Cr. R.P. 214/70 was filed before this court and this court by its order dated 26th of June, 1970 set aside the order of the learned Magistrate and remanded the case for disposal afresh after taking evidence on the question whether the charge in question was a public chal. After remand Pw. 1 was recalled and examined. He deposed that the chal was a public chal and that it was used by the public of the place for agricultural purposes. In addition, Pws. 4 and 5 were also examined. They also deposed on similar lines. Counter petitioners did not adduce any evidence. They did not even deny the fact that the chal is a public chal. All that they stated was that no obstruction was caused by them to the chal and the chal continued to exist as it was before. The learned Magistrate, therefore, passed the present order on 18-12-70 making absolute the order passed by him on 31-7-68. Under the present order, the counter petitioners have been directed to remove the obstruction within 15 days failing which they shall be liable to penalty provided under S.188 C.P.C.

(2.) The main point argued before me by the learned counsel is that the requirement of S.139A of the Code has not been complied with in the present case. S.139A provides ''that 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 S.137 or S.138, inquire into the matter." In other words, according to the learned counsel if S.139A is not complied with the learned Magistrate will get no jurisdiction to proceed further with the matter. AIR 1956 Cal. 24 and a few other decisions were cited in support of this position, viz,, that S.139A should be expressly complied with. Upon the opposite party's denial of the existence of the alleged public right the matter should be enquired into by the Magistrate and appropriate orders passed as required by the other connected sections of the Code. This court, however, has held in Narayanan v. Govindan ( 1962 KLT 420 ) that the provision in S.139A(1) is only directory. The learned Single Judge has observed: