SIVA PRABHU Vs. MUSTAPPA

JUDGEMENT

(1.) The revision petition is against an order of the Executive First Class Magistrate purporting to have been made under S.147(2) of the Criminal Procedure Code prohibiting all interference with the exercise of the right of the respondent to use the space in front of the workshop and within the compound wall for the purpose of his trade.

(2.) A few facts are pertinent for the disposal of this revision petition. The revision petitioner is the owner of 13 rooms in R. S. Nos. 136, 137, and 138 in Tiruvangad Amsom, Tellicherry Taluk. Of these, three rooms were let out to the respondent and he is using them as a motor workshop. The plot is about 40 feet in width and the petitioner began to construct a shed after leaving a frontage of 15 feet to the rooms. On 19-9-1963 the respondent filed a petition purporting to be one under S.133 read with S.147, Criminal Procedure Code stating that the construction of the shed will cause inconvenience to him by making it difficult for his customers to take vehicles to his workshop and praying that the revision petitioner may be directed to remove the obstruction caused by digging up the foundation and collecting the stones and to prohibit him from constructing the building. There is also a casual statement that the petitioner is even prepared to use force to carry out his purpose of causing obstruction to the respondent. That petition was forwarded the next day to the Circle Inspector of Police, Tellicherry for report. On 21-10-1963 the Circle Inspector reported that the preparations for the construction of the building caused inconvenience to the petitioner, but the report was significantly silent about the likelihood of any breach of the peace. When that matter was brought to the notice of the Magistrate by the office, he called for a specific report as to the likelihood of a breach of the peace and also as to the possibility of grave loss or injury to the petitioner. In response to this, a report was sent up by the Circle Inspector on 11-11-1963 stating that there is no likelihood of the breach of the peace, incorporating a report by the Sub Inspector that on further enquiry he learned that there is a likelihood of a breach of the peace as both parties are influential, and adding that if the construction of the shed is completed the business of the petitioner will be affected. When these contradictory reports were brought to the notice of the Magistrate, he asked the Circle Inspector for clarification who wrote back saying that it was a slip on his part and action may be taken as recommended by the Sub Inspector. It may be noted that the Sub Inspector did not recommend any action. At the foot of this communication by the Circle Inspector is found a note dated 26-9-1963 by the Magistrate put up a preliminary order under S.133 read with S.147 Criminal Procedure Code. Presumably in obedience to that direction an order was put up with the heading Preliminary Order under S.133 read with S.147, Cr. P.C. which reads: Whereas it is made to appear that the respondent is creating nuisance by constructing the shed and the Magistrate is satisfied that it is likely to cause a breach of the peace, to remove the obstruction and stop the nuisance within seven days and calling upon the respondent to show cause why the order should not be enforced. This order is dated 27th November, 1963. The petitioner entered appearance and filed his reply stating that the respondent is only entitled to use a limited space in front of the workshop for the convenient use of the three rooms which were rented out and he has constructed the shed leaving enough space for such use and that the petition is a counterblast to the proceedings taken to evict the respondent who has sublet the rooms. He denied that he had any intention to use force and added that there was neither the occasion nor the need to do so.

(3.) The case was thereafter posted for evidence. The petitioner in his evidence stated that there was some inconvenience in taking buses and lorries and there was not enough space to reverse the vehicles. He was studiedly silent about the likelihood of a breach of the peace. Three witnesses corroborated the petitioners evidence. The inspection notes of the Magistrate show that the construction was completed and that while cars and such small vehicles could even then enter the respondents workshop, large vehicles like buses and lorries cannot do so with ease and that the construction of the shed causes slight inconvenience in doing so. He also found lorries parked in the available space in the front of the rooms.