Dismissed

Dineshan P.K. v. Suresh Babu

Kerala HC1 Jul 2020Crl.MC/141/2015

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a criminal revision petition challenging the acquittal of an obstruction complaint under Section 133 Cr.P.C. The Court held that the disputed land was a public pathway and observed that the revision petitioner failed to appear or substantiate claims of denying the petitioner opportunity.

What did the court decide?

The Crl.MC is dismissed; the concurrent orders of the lower authorities are confirmed.

Dineshan P.K. Vs Suresh Babu — Landlord and Tenant | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

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WEDNESDAY, THE 01ST DAY OF JULY 2020 / 10TH ASHADHA, 1942

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Crl.MC.No.141 OF 2015

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AGAINST THE ORDER/JUDGMENT IN CRRP 77/2013 DATED 09-10-2014 OF ADDITIONAL DISTRICT COURT, KOZHIKODE

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PETITIONER/REVISION PETITIONER:

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DINESHAN P.K., AGED 48 YEARS, S/O. KELAPPAN, PULAKKUNIYIL HOUSE, CHORODE VILLAGE, P.O. M,UTTUNGAL, VATAKARA TALUK.

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BY ADV. DINESHAN P.K.(PARTY)

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RESPONDENTS/RESPONDENTS:

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1 SURESH BABU, CHALAYIL THAZHE, CHORODE VILLAGE, P.O. MUTTUNGAL, VATAKARA TALUK.

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2 SHOBHA, W/O. SURESH BABU, CHALAYIL THAZHE, CHORODE VILLAGE, P.O. MUTTUNGAL, VATAKARA TALUK.

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3 THE TAHSILDAR, VATAKARA.

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4 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

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R1 BY ADV. SRI.K.RAKESH ROSHAN R1 BY ADV. SMT.THUSHARA.V

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OTHER PRESENT:

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SRI. BINEESH. E.C. (P.P)

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01.07.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No.141 OF 2015 2

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ORDER

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The revision petitioner is the original

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respondent in the proceedings No.C3-13706/12 before the Executive Magistrate/Tahsildar, Vadakara initiated u/s.133 of Cr.P.C. He challenges Annexure-F order dated 31.7.2013 of the Executive Magistrate making the conditional order dated 9.10.2014 passed u/s.133 absolute as well as the revisional order passed in Crl.R.P.No.77 of 2013 passed by the Sessions Judge, Kozhikod confirming Annexure-F order.

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The respondents 1 and 2 in this Crl.M.C filed a complaint before Tahsildar, Vadakara alleging that the revision petitioner obstructed a pathway in their constant use for access to their residential property. It was alleged that the pathway was tilled deeply and sand removed causing the way logged by water. After getting report from the local Village Officer and being satisfied that

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Crl.MC.No.141 OF 2015 3

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there was obstruction to user of pathway, conditional order was passed on 23.2.2013 ordering the pathway to be restored to its original

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condition.

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The revision petitioner after having

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appeared before the Tahsildar, Vadakara took exception to the order raising contentions as below:

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i) There was no pathway in existence and on

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the other hand, what in fact existed was only a

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water chal.

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ii) The said land has not been used by the

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members of the public and therefore, no power u/s.133 of Cr.P.C could have been exercised by the Tahsildar. It was also contended that the complaint holders have alternate way for access to their residential land. He further denied having caused any mischief to the disputed portion of land.

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After holding enquiry, the Tahsildar,

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Crl.MC.No.141 OF 2015 4

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Vadakara acting as the Executive Magistrate rejected the contention of the revision petitioner and came to conclusion that the obstruction caused to the pathway was proved and it required to be removed. He found that the substantial portion of the land had been tilled and sand was removed at a depth of 1 ½ metres. Therefore, he ordered the pathway to be restored to the original position and issued orders to the revision petitioner to carry out the direction.

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This order was challenged by the revision petitioner in Crl.R.P.77 of 2013 and it was

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dismissed by order dated 9.10.2014 by the Sessions Judge, Kozhikode. Being aggrieved by the concurrent orders, this Crl.M.C invoking u/s.482 of Cr.P.C has been filed before this Court.

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The revision petitioner had engaged a

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lawyer and on being reported that the lawyer

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expired, notice was sent to the revision petitioner

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Crl.MC.No.141 OF 2015 5

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to make necessary arrangements for prosecution of

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this Crl.M.C. He did not appear nor was represented. The learned counsel for the respondents 1 and 2 and the learned Public

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Prosecutor were heard today.

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petitioner is that Annexure-F order dated 31.7.2013 was passed by Tahsildar, Vadakara without giving him opportunity to establish his contentions raised in the objection statement. Another contention is that he did not get notice of local visit made by

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the Tahsildar and therefore, materials collected during the local inspection could not have been used against him. It is also contended that the land in existence is not a pathway, but is only a water chal and in any view of the matter, it is not

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used by members of the public at all. The

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contention basically is to the effect that the land

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not being in the use of members of public,

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invocation of power u/s.133 of the Cr.P.C was uncalled for.

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On the other hand, the learned counsel for

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the respondents 1 and 2 submitted that materials on record have sufficiently proved that the land is a

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public pathway in the constant use of the respondents and the report submitted by the local Village Officer reveals that the user of pathway was obstructed by the revision petitioner and therefore, the Executive Magistrate has rightly exercised the jurisdiction vested him under law.

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The report of the Village Officer dated 18.9.2012 clearly indicates that the land in

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question is a pathway and not a water chal at all. He stated that the area being water logged, the disputed pathway is interpreted as a water chal also. Referring to Village Field Map annexed to

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the said report, he has pointed out that the doted

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lines in the map have showed that it is a public

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Crl.MC.No.141 OF 2015 7

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pathway. On looking at the materials placed before

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the court, I am also satisfied that the conclusion arrived at by the executive Magistrate as well as the revisional court that the disputed pathway is a public way is correct. This view has to sustain despite the impression gathered by the executive officer being ignored also. Even going by the contention taken in Annexure-C objection statement of the revision petitioner also, he does not lay any claim in over the alleged water chal which, according to the respondents 1 and 2, in a pathway. On the other hand, his specific contention is that he has not committed any mischief or encroachment nor reduced any portion of the same into his possession. Further even to establish the extent of the area of his own land also, he has not produced any title deed of his property despite him being directed by the Executive Magistrate.

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There is sufficient indication in the

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report of the local Village Officer that the respondents 1 and 2 have no access to their residential land otherwise than through the disputed pathway. Looking at all these materials, it appears to be sufficiently clear that mischief has been made in respect of public way used by respondents 1 and 2. Therefore, exercise of power u/s.133 of the Cr.P.C was absolutely justified.

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petitioner that he was not given sufficient opportunity by the Executive Magistrate also does not appears to be in tune with the facts. Scrutiny

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as to the general conduct of the revision

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petitioner reveals that his contention of denial of opportunity is not correct. Even before the revisional court also, he did not appear in spite of sufficient notice having been given to him. Same thing happened before this court also. Even going by his own contention, he does not lay any

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Crl.MC.No.141 OF 2015 9

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right or interest over the disputed pathway which he terms as a water chal. For all these reasons together, I am satisfied that a case for interference u/s.482 of the Cr.P.C has not been

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made out by the revision petitioner. The concurrent orders passed by the authorities below require only to be confirmed.

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In the result, this Crl.M.C is dismissed.

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Sd/- T.V.ANILKUMAR, JUDGE

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Crl.MC.No.141 OF 2015 10

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANX.A.	TRUE COPY OF THE COMPLAINT FILED BEFORE THE TAHSILDAR, VATAKARA BNY RESPONDENTS 1 AND 2
ANX.B.	TRUE COPY OF THE ORDER DATED 23-2-2013 OF THE TAHSILDAR & EXECUTIVE MAGISTRATE, VATAKARA.
ANX.C.	TRUE COPY OF THE OBJECTION TO THE COMPLAINT IN C3/3706/12 FILED BY THE PETITIONER BEFORE THE EXECUTIVE MAGISTRATE, VATAKARA.
ANX.D.	TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER, CHORODE AND SKETCH DATED 18-9- 2012.
ANX.E.	TRUE COPY OF THE SKETCH SHOWING THE WAY TO THE COMPLAINTS HOUSE.
ANX.F.	TRUE COPY OF THE FINAL ORDER PASSED BY THE EXECUTIVE MAGISTRATE, VATAKARA DATED 31-7-2013.
ANX.G.	CERTIFIED COPY OF THE ORDER IN CRL. R.P. NO. 77/2013 OF THE SESSIONS COURT, KOZHIKODE DATED 9-10-2014.

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RESPONDENTS' EXHIBITS: NIL

Dineshan P.K. v. Suresh Babu

Case brief

What is this about?

What did the court decide?

Dineshan P.K. v. Suresh Babu

Case brief

What is this about?

What did the court decide?

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