PAYATHARAMMAL KELU Vs. K.P.KELU

JUDGEMENT

(1.) The revision petition is filed questioning the legality and correctness of the order in A2.46928/2010 dtd. 18/4/2011 passed by the Tahasildar, Kozhikode, under Sec. 138 of the Code of Criminal Procedure, 1973 ('Code', for the sake of brevity).

(2.) The revision petitioner has stated in the memorandum of revision petition that, he is having right, title and possession over 1.16 Acres of land in Sy.No.70/5 in Kunnamangalam amsom and desom of Kozhikode Taluk, obtained by him by partition deed No.2526/1980. There is a PWD road on the southern boundary of the property. When height of the road was increased, the revision petitioner laid granite stones in front of his house for the smooth movement of vehicular traffic. Then, the first respondent his neighbour filed a complaint before the District Collector, Kozhikode, alleging that the revision petitioner has blocked the drainage. Immediately, the Tahasildar/Executive Magistrate called for a report from the Village Officer and passed an order under Sec. 133 of the Code on 25/9/2010. The revision petitioner was asked to show cause why the order should not be made absolute. Although the revision petitioner appeared before the Executive Magistrate on numerous occasions, the matter was not heard. Surprisingly, on 18/4/2011, the conditional order was made absolute by the impugned order. The impugned order is erroneous, arbitrary and illegal, as is passed in violation of the principles of natural justice and the law laid down by this Court in Velayudhan v. Kesavan Nair [1968 KLT 889]. Therefore, the order may be set aside and the revision petitioner may be afforded an opportunity to contest the matter on its merits. Hence, the revision petition.

(3.) Heard; Sri. V.T. Madhavanunni, the learned counsel appearing for the revision petitioner and Smt.Seetha S., the learned Senior Public Prosecutor appearing for the second respondent State.