SURENDRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) ALLEGING obstruction by the Sporting Star Club to the public pathway which runs between the property situated in Sy. No. 501/7 and sy. Nos. 501/8 and 501/8-1 which belongs to the Sporting Star Club, the 5th respondent and the petitioner respectively, petitions have been filed by the petitioner and the 5th respondent before the Tahsildar, Chirayinkeezhu Taluk who initiated proceedings under S. 133 Cr. P. C. in his capacity as the Executive magistrate and passed a conditional order on 25. 11. 1997 by which the second respondent was restrained from constructing a compound wall causing obstruction to the pathway leading to Venkulam-Janardhanapuram Road to appear before him on 1. 12. 1997 and to show cause why the order should not be made absolute. Pursuant to the order, the parties appeared before the Executive Magistrate who conducted a local inspection, heard the parties and passed a final order on 24. 1. 1998 by which they second respondent was permitted to construct a compound wall after leaving S links for the 5th respondent to have access to her property. The conditional order dated 25. 11. 1997 by which the second respondent was prevented from proceeding with the construction was withdrawn. The petitioner challenges the said order.

(2.) IT is the case of the petitioner and the 5th respondent that the public pathway which leads to Venkulam-Janardanapuram road is in existence which runs east-west on the north of the property. IT is their case that they constructed a compound wall on the north of the property after surrendering sufficient space, more than a metre, to the Panchayat for widening the pathway. IT is their further case that the Panchayat is maintaining the pathway. Annexure I produced along with Crl. M. P. No. 2330 of 1998 shows that the Panchayat had spent about Rs. 28,800/-during the year 1995-96 for maintaining the pathway. The Panchayat has even described the pathway as a road resolution was also passed by the Panchayat by which the District Collector trivandrum was requested to take appropriate action for prevention of obstruction tc the alleged road. But, it is the case of the Panchayat who is represented by respondent; 3 and 4 that the property of the petitioner and 5th respondent was not surrendered ii accordance with law. But, it is not their case that a public pathway is not in existence at the relevant place and they are not maintaining the same as a pathway.

(3.) AS per the conditional order, the alleged obstructer was directed to comply with the order or to appear before the Executive magistrate and show cause why the order should not be made absolute. The executive Magistrate gets jurisdiction under S. 133 of the Code of Criminal procedure to remove public nuisance including obstruction to public pathway or when a pathway is unlawfully used by the public. S. 137 of the Code provides that on appearance of the obstructer before him against whom the order was made, the Magistrate shall question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, as the case may be and if he does so, the Magistrate shall before proceeding under S. 138 cr. P. C. , inquire into the matter. S. 137 (2) provides that if in such inquiry, the Magistrate finds that there is reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent court and if he finds that there is no such evidence, he shall proceed as laid down in S. 138. AS per S. 137 (3) Cr. P. C. if a person on questioning by the Magistrate fails to deny the existence of a public right or who having made such denial fails to adduce reliable evidence in support thereof shall not in the subsequent proceedings be permitted to make any such denial. S. 138 (1) of the Code provides that if a person against whom an order under S. 133 is made appears and show cause against the order, the magistrate shall take evidence in the mater as in a summons case. Sub-ss. (2)and (3) of S. 138 Cr. P. C. authorises the Magistrate to either make the order absolute with or without modification or drop further proceedings depending on the satisfaction of the Magistrate.