PHILIPE FARTADO Vs. STATE

JUDGEMENT

(1.) In this revision petition by Philipe Furtado and his wife Pedrinha de Gama the validity of the order dated 4th of May 1967 by which the Sub-Divisional Magistrate, South Sub-Division, Margao, directed them under S. 137 of the Criminal P.C., hereinafter called the Code, to remove obstruction from over a part of the road running on the eastern side of the house of Dr. M. R. Kakodkar, the respondent No. 2, in village Curchurem, within 15 days from the date of the receipt of the order, failing which they shall be liable for prosecution under S. 188 of the Indian Penal Code. The present petitioners having felt aggrieved agitated the correctness of the order in the Court of Sessions Judge at Panaji. However, they did not meet better fate and their revision application was dismissed by the learned Sessions Judge on 28-10-1967. It is thereafter that the present revision petition was filed in this Court.

(2.) Shri Sonak, representing the petitioners, urged vigorously that the Sub-divisional Magistrate had flagrantly violated the provisions of S. 139-A of the Code inasmuch as he had usurped the jurisdiction of the civil Court in deciding that there was a public road on the east of the house of Dr. Kakodkar. Shri Sonak also challenged the order dated 4th of May 1967 on merits. Some facts have to be detailed for better appreciation of the submissions made by Shri Sonak. It was on 1st of February 1967 that the Sub-Divisional Magistrate passed the conditional order under S. 133 of the Code. It was mentioned in that order that on the basis of credible information it appeared to the Magistrate that the present petitioners "had blocked the road passage by encroachment and construction of fence and hut" and had thereby caused obstruction to Dr. Kakodkar as also to the public. The petitioners were called upon to remove the obstruction within 7 days of the receipt of the order else they should appear before the Magistrate on 23-2-1967 to show cause why the conditional order should not be enforced against them. The petitioners put in appearance before the Sub-Divisional Magistrate on 23-2-1967 when they orally slated that they had not removed the hut and the fence because the land on which they stood belongs to Francis Ceasar. They both further prayed for an adjournment for putting in written statements. It was on 8th of March 1967 that a joint written statement was filed by them wherein it was asserted that there was no public road or pathway on the east of the house of Dr. Kakodkar. The evidence of the parties, in support of their rival contentions, was thereafter recorded by the Sub-Divisional Magistrate on 4-5-1967. Dr. Kakodkar entered the witness box himself and besides, examined the village Sarpanch Devidas Pandurang. Thereafter the statements of the present petitioners were recorded. The final order in the case was announced on the same day.

(3.) Sub-Section (1) of S. 139-A of the Code enacts that where any order is made under S. 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and, if he does so, the Magistrate shall, before proceeding under S. 137 or S. 138, inquire into the matter. The next sub-section is to the effect that if in such inquiry the Magistrate finds that there is any 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 civil Court. However, it is stated further in the sub-section, if the Magistrate finds that there is no such evidence, he shall proceed as laid down in S. 137 or S. 138, as the case may require. The precise contention of Shri Sonak was that since his clients had denied the public right in respect of the disputed land it was obligatory on the Sub-Divisional Magistrate to call upon the petitioners to lead evidence in support of denial of that public right before embarking upon the inquiry contemplated by S. 137 or S. 138. Shri S. K. Kakodkar, the learned counsel for the respondent No.2 Dr. Kakodkar, contended, on the other hand, that since the Sub-Divisional Magistrate had given a distinct finding in his final order dated 4th of May 1967 that the land encroached upon is part of the public road, non-compliance in a meticulous manner with the provisions of S.139A at the worst constitutes an irregularity which is curable by S. 537 of the Code. Shri Kakodkar urged further that since in the instant case no prejudice had been occasioned to the petitioners by the aforementioned irregularity, no case for interference with the impugned order is made out.