T N SUDHAKARAN Vs. E M GEORGE

JUDGEMENT

(1.) I am afraid that the procedure adopted by the Executive I Class Magistrate, Fort Cochin, is not in accordance with law and consequently the case will have to be heard afresh.

(2.) On a police report or on other information, on taking evidence if any and if the Magistrate thinks fit that any unlawful obstruction or nuisance should be removed from any way, river or channel which is or may be lawfully used by the public, or from any public place (that is the complaint made in the instant case), the concerned Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, within the time to be fixed in the order, to remove such obstruction, and if be objects to do so, to appear before the Magistrate at a specified time and place to be fixed by the order and move to have the order set aside or modified. This is the procedure to be followed to begin with under S.133 Cr. P. C. so far as it relates to the facts of the instant case. Such a conditional order having been served on a person as provided in S.134 Cr. P. C. be is to appear and show cause against the order when the Magistrate has to pass another order under S.139A(2) after following the procedure under S.139A(1). Sub-s.(2) of S.139A shows that where the person denies the existence of any public right in respect of the river, channel, etc., the Magistrate shall make an enquiry to see whether there is reliable evidence in support of such denial; and if he finds in the affirmative, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Civil Court. If there is no reliable evidence in support of the denial, he shall proceed under S.137 or under S.138 as the case may be. At that stage the party has the right to choose the forum as required in S.135(b) unless he is prepared to abide by the order as required by S.135(a). If the right to proceed under S.135(b) is not availed of, the Magistrate shall proceed under S.137; but if the party wants a jury to be constituted as required by S.135(b) then the Magistrate shall follow the procedure under S.138. It is only after the Magistrate passed an order under S.139(2) that his right to proceed under S.137 or 138 arises. In this case none of these provisions has been followed by the learned Magistrate.

(3.) Some 45 persons filed a complaint before the Magistrate on 27-3-1972. The respondents 1 to 4 in this revision petition are the signatories Nos. 1 to 4 in the complaint, wherein the allegation was that as cultivators of vast tracts of paddy lands abutting backwaters they are entitled to conduct the agricultural operations by letting in water into the canals through certain sluices from the backwaters and that therefore they must be allowed to take possession of the sluices, bunds and canals belonging to one Ayyampally Devaswom which is the jenmi of these lands, for purpose of cultivation during the agricultural season with effect from 1-4-1972. The Magistrate made a conditional order on 28-3-1972 under S.133 directing the revision petitioners, the representatives of the Devaswom, to appear on 4-4-1972. That day being a holiday, the hearing was adjourned to 11-4-1972. Even on 4-4-1972 the petitioners filed a lengthy counter statement of their objections in which inter alia they denied that the right claimed by the respondents in respect of the sluices, bund and canal, is not a public right, but a private right. The Magistrate, however, did not follow the procedure as contemplated under S.139A after filing the objections by the revision petitioners. On the other hand, another order was passed on 11-4-1972 holding "In the interest of cultivation of paddy, I consider that the operation of sluices should be entrusted to the petitioners. Accordingly, I order, as an interim arrangement that, sluices, channels and mouth of the sluices should be handled by the petitioners and the key of the sluices bunded over to the petitioners 1 to 4" (respondents). The revision petition is against this order.