K R ALEXANDER Vs. IDA MATHEW

JUDGEMENT

(1.) Petitioner in this petition under S.482 of the Code of Criminal Procedure claims right of way over the respondents' property. It appears, the petitioner's predecessor filed a suit O. S.256 of 1977 seeking establishment of right of easement and the suit was dismissed. After the petitioner acquired right to the adjoining property, he filed a suit O. S.91 of 1979 for declaration of his easement right and for injunction. That suit also was dismissed. Thereupon, he filed yet another suit O. S.715 of 1982 claiming an easement of necessity. It appears, the injunction application filed by him was dismissed and he has filed an appeal against that order A few years ago, the respondents attempted to put up a compound wall around their property. When they were about to build the wall at the place where the petitioner and his predecessors claim the right of way, they were obstructed and that portion was not built up. When the two suits ended, they wanted to build up that portion also and apprehending obstruction by the petitioner they filed a petition before the Revenue Divisional Officer (Sub Divisional Executive Magistrate), Fort Cochin seeking police aid. While that petition was pending, they moved this Court in O. P. 10113 of 1982 under Art.226 of the Constitution of India seeking a direction to the local police to afford police protection to enable them to build the compound wall. When the original petition came up for arguments, it was brought to the notice of the court that the petition filed before the Executive Magistrate was pending. It appears, the Liaison Officer suggested to the Executive Magistrate that the petition may be disposed of. Accordingly, the Magistrate disposed of the petition and passed the impugned order in Crl. M. P. 96/82 directing the S. I. of Police, Mattancherry to afford necessary protection to the respondents herein to complete the construction of the compound wall. The O. P. was dismissed on the ground that the claim involved adjudication of disputed questions for which there were no materials placed before the court. The impugned order of the Magistrate was unsuccessfully challenged before the Sessions Court in revision. Hence this petition.

(2.) According to learned counsel for the petitioner, the Executive Sub Divisional Magistrate has no power at all to pass an order of this nature and in any event, he was not justified in passing such an order. Notice of the petition was given to the learned Public Prosecutor who submitted that the order was really passed in exercise of the power under S.144 of the Code. That being so, the task before me is limited to an examination of the power vested in the Magistrate under S.144 of the Code and to see whether the impugned order has been passed consistently with such power.

(3.) Sub-s.(1) and (3) of S.144 of the Code read thus: "144. Power to issue order in urgent cases of a nuisance or apprehended danger.-- (1) In cases where, in the opinion of a District Magistrate, a Sub Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by S.134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray.