IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 4440 of 2006(D)
1. KUNJAN, S/O. CHAMI,
... Petitioner
2. VIJAYAN, S/O.MURUGAN,
Vs
1. STATE OF KERALA, REP. BY THE
... Respondent
2. M.A. SALAM, THANDANA LAKSHAM VEEDU
For Petitioner :SRI.SURIN GEORGE IPE
For Respondent :SRI.RENJITH THAMPAN
The Hon'ble MR. Justice K.R.UDAYABHANU
Dated :07/03/2007
O R D E R
K.R.UDAYABHANU, J.
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Crl. R. P. 4440 of 2006
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Dated this the 7th day of March, 2007
ORDER
The revision petitioners, against whom the Sub Divisional
Magistrate has issued a prohibitory order, not to obstruct the
pathway, allegedly existing on the northern side of the pond owned
by them, have sought for setting aside the order, on the ground
that the provisions contained in sections 133 to 138 have not been
complied with. It is against the revision petitioners that the
complaint had been filed by the second respondent representing the
residents of the Laksham Veedu Colony situated on the north
eastern side of the pond. The 2nd respondent initiated these
proceedings as a counterblast to the order passed by the Civil
Court, to keep status quo with respect to the work being conducted
to widen the path way on the southern side of the pond. The Sub
Divisional Magistrate, after issuing notice to both sides to explain
their respective case, and after calling for the reports from the
Revenue Officer and Tahasildar, directed the revision petitioners, as
mentioned above. It is the contention of the revision petitioners
that Sub Divisional Magistrate is not specific as to under what
Crl. R. P. 4440 of 2006 2
provision the order has been issued . It is the case of the revision
petitioners that the order can only be in exercise of that power
under Sections 133 to Section 138 Crl.PC . According to the 2nd
respondent it is evident from the order, though the provisions are
not specified, that the order is issued under Section 145, r/w 147
Crl.PC as it is mentioned in the reports of the Tahasildar and Village
Officer as well as in the order of the Sub Divisional Magistrate, the
existence of a likelihood of breach of peace in the locality and tense
situation prevailing.
2. It is the case of the 2nd respondent that it is in
consequence of the mass petition filed by the residents of the
Laksham Veedu Colony, the Sub Divisional Magistrate initiated the
proceedings. The records also show that such a mass petition was
filed complaining against the blocking of pathway. According to
the 2nd respondent the residents of the Laksham Veedu Colony were
using the southern as well as the impugned pathway. But the
use of the southern pathway has become impossible vide, the order
of the Civil Court. According to him, the revision petitioners have
fenced the eastern and western sides of the northern pathway after
obtaining a prohibitory order with respect to the southern pathway.
3. Evidently the order of the Sub Divisional Magistrate
shows that a tense situation is prevailing in the locality. The above
finding is based on the report of Village Officer and the Tahasildar.
Crl. R. P. 4440 of 2006 3
The contention of the revision petitioners is that they have not been
provided with an opportunity to adduce evidence and the Sub
Divisional Magistrate has issued the order solely relying on the
reports of the Village Officer and Tahasildar .
4. I find that the Order of the Sub Divisional Magistrate
did not mention the provision under which he had issued the order.
The contention of the revision petitioners is also that they have not
been given an opportunity to adduce evidence . The same is a
matter that requires consideration.
5. In the circumstances the Order of the Sub Divisional
Magistrate is set aside. The matter is remanded back to the Sub
Divisional Magistrate, to reconsider the matter, affording
opportunities to both sides to adduce evidence. In the meantime,
the revision petitioners are directed not to obstruct pathway till Sub
Divisional Magistrate decides the issue finally. The Sub Divisional
Magistrate shall dispose of the matter at the earliest, at any rate,
within four months from the date of receipt of this order. The
revision petition is disposed of accordingly.
Handover copy of the order.
K.R.UDAYABHANU, JUDGE
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