IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 WP(C).No. 36335 of 2008(A) -------------------------------------- O.S.139/2006 OF MUNSIFF COURT, KOYILANDY. .................. PETITIONER(S): --------------------- T.K. BASHEER,S/O.AMMED .T.K. AGED 38 YEARS, THORAKKILERI THAZHE KUNIYIL VAKAYAD, VIA. NADUVANNUR, THRIKKUTTISSERRY AMSOM, VAKAYAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. MR.SHYAM PADMAN MR.S.ANANTHAKRISHNAN MR.A.RANJITH NARAYANAN RESPONDENT(S): ------------------------- 1. THE SUB DIVISIONAL MAGISTRATE(RDO) KOZHIKODE CIVIL STATION CALICUT-20. 2. THE ASST.COLLECTOR, KOZHIKODE CIVIL STATION, CALICUT-20. 3. THE SECRETARY, UPABHOKTHA SAMRAKSHANA SAMITHI VAKAYAD PO., NADUVANNUR. 4. MUNDAYIL MOIDEEN KOYA, VAKAYAD THRIKKUTTISSERY AMSOM VAKAYAD DESOM, KOYILANDY TALUK KOZHIKODE DISTRICT, CALICUT--673 614. R1 & R2 BY GOVERNMENT PLEADER MR.B. JAYASOORYA. R3 & R4 BY ADV. MR.PHILIP ANTONY CHACKO, MR.P.M.SEBASTIAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 36335/2008-A APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JENM ASSIGNMENT DEED IN FVOUR OF THE PETITIONER DATED 10/07/1996. EXT.P2: COPY OF THE APPROVED PLAN AND PERMIT DATED 23/10/1996. EXT.P3: COPY OF THE CONDITIONAL ORDER UNDER SEC.133 CR.P.C. ISSUED BY THE 1ST RESPONDENT DATED 01/07/2006. EXT.P4: COPY OF THE PLAINT IN O.S. NO.139/2006, MUNSIFF COURT, KOYILANDY, DATED 18/09/2006. EXT.P5: COPY OF THE WRITTEN STATEMENT IN O.S.139/2006 DATED 27/11/2006. EXT.P6: COPY OF THE COMMISSION REPORT AND SKETCH IN O.S. NO.139/2006 DATED 06/03/2007. EXT.P7: COPY OF THE COMMISSION REPORT AND SKETCH IN O.S. NO.139/2006 DATED 25/06/2007. EXT.P8: COPY OF THE APPLICATION TO REMIT THE COMMISSION REPORT AND SKETCH DATED 04/07/2007. EXT.P9: COPY OF THE FINAL COMMISSION REPORT AND SKETCH DATED 24/10/2007. EXT.P10: COPY OF THE DECREE AND JOINT STATEMENT IN O.S. NO.139/2006. EXT.P11: COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT MAKING THE CONDITIONAL ORDER ABSOLURTE DATED 11/07/2007. EXT.P12: COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 17/04/2008. EXT.P13: COPY OF THE COUNTER STATEMENT FILED BY THE 4TH RESPONDENT DATED 19/06/2008. EXT.P14: COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 19/04/2008. EXT.P15: COPY OF THE REPLY AND FMB ISSUED BY THE VILLAGE OFFICER, AVITTANALLUR. DATED 10/11/2008. RESPONDENT'S EXHIBITS: EXT.R3-1: COPY OF THE DOCUMENTS NO.1250 OF 1995 DATED 30/05/1995 OF THE SUB REGISTRAR'S OFFICE, NADUVANNOOR EXECUTED BY THORAKKERIYIL AVUMMA TRANSFERRING HER 3.13 CENTS (THREE AND ONE THREE CENTS) OF LAND TO MUNDAYIL PATHIMAUMMA, THE WIFE OF THE 4TH RESPONDENT. WP(C) NO. 36335/2008-A EXT.R3-2: COPY OF THE DOCUMENTS NO.796 OF 1996 DATED 19/03/1996 OF THE SUB REGISTRAR'S OFFICE, NADUVANNOOR EXECUTED BY THORAKKERIYIL AYSHUMMA TRNAFERRING HER 2 ¾ CENTS (TWO AND THREE BY FOURTH CENTS) TO LAND MUNDAYIL PATHIMAUMMA, THE WIFE OF THE 4TH RESPONDENT. EXT.R3-3: COPY OF THE COMPLAINT DATED 09/01/2006 FILED BY THE 4TH RESPONDENT TO THE VILLAGE OFFICER, KOTTOOR. EXT.R3-4: COPY OF THE COMPLAINT DATED NIL FILED BY THE 3RD RESPONDENT AND 40 OTHERS TO THE REVENUE DIVISIONAL OFFICER, KOZHIKODE. EXT.R3-5: COPY OF THE PETITION DATED 18/07/2006 FILED BY THE 4TH RESPONDENT BEFORE THE 1ST RESPONDENT. EXT.R3-6: COPY OF THE PETITION DATED NIL FILED BY THE SREEDHARAN AND 95 OTHERS BEFORE THE 1ST RESPONDENT. EXT.R3-7: COPY OF THE APPLICATION DATED 18/01/2009 FILED BY THE 3RD RESPONDENT SECRETARY TO THE SECRETARY KOTOOR PANCHAYATH. EXT.R3-8: COPY OF THE REPLY NO.22/09 DATED 05/02/2009 GIVEN BY THE VILLAGE OFFICER TO THE 3RD RESPONDENT. //TRUE COPY// P.S. TO JUDGE rs. M.Sasidharan Nambiar, J. -------------------------- W.P.(C)No.36335 of 2008 A -------------------------- JUDGMENT On 1.7.2006, Sub Divisional Magistrate, Kozhikode passed Exhibit P3 conditional order under Section 133 of Code of Criminal Procedure directing petitioner and second counter petitioner to restore the thodu, which was unlawfully filled up or to appear and show cause why the conditional order shall not be made absolute. Thereafter, on 11.7.2007, Exhibit P11 final order was passed making the conditional order absolute without showing any reason. Petitioner filed an application to recall that order. Under Exhibit P14 order that application was rejected. This petition is filed under Article 226 of Constitution of India for a writ of certiorari to quash Exhibits P3, P11 and P14 orders. 2. Learned counsel appearing for the petitioner and respondents 3 and 4, the petitioners before the Sub Divisional Magistrate, Kozhikode in the Section 133 proceedings and learned Government Pleader were heard. Learned Government Pleader also made available the case WPC 36335/08 2 records from the Sub Divisional Magistrate, Kozhikode. 3. Learned counsel appearing for the petitioner argued that when counter petitioners, in answer to the show cause notice, appeared before the Sub Divisional Magistrate and objected to the claim, Sub Divisional Magistrate is bound to record the evidence as in a summons case as provided under Section 138 of Code of Criminal Procedure and Exhibit P11 order passed by the Sub Divisional Magistrate is in violation of the mandatory provisions of Code of Criminal Procedure and therefore, is liable to be quashed. Learned counsel pointed out that even if counter petitioners did not appear or did not show any cause, Sub Divisional Magistrate can only pass an order as provided under Section 136 of Code of Criminal Procedure and Exhibit P11 order is not an order passed under Section 136 and without showing any reason, the conditional order was made absolute. Sub Divisional Magistrate cannot pass such an order and therefore, the order is to be quashed. Reliance was placed on the decision of this Court in Sujatha v. Prema (2005 (3) KLT 458) in support of the contention. WPC 36335/08 3 4. Learned counsel appearing for respondents 2 and 3 argued that though counter petitioners appeared before the Sub Divisional Magistrate, they did not show any cause and therefore, Sub Divisional Magistrate is empowered to make the conditional order absolute, without showing any reason and as no cause was shown, Exhibit P11 order cannot be challenged. Learned counsel also argued that mere appearance of the counter petitioners, to the notice to show cause why the conditional order shall not be made absolute, is not sufficient and they have to show cause why the conditional order shall not be made absolute and as no cause was shown, there is no reason to interfere with that order. Reliance was placed on the decision in Sujatha's case (supra) and argued that without showing the cause, appearance of the counter petitioners is not sufficient and the case records establish that no cause was shown and therefore, the writ petition is only to be dismissed. 5. Section 133 of Code of Criminal Procedure enables the Sub Divisional Magistrate or the Executive Magistrate to pass a conditional order requiring the WPC 36335/08 4 person causing obstruction or nuisance to appear on a day to be fixed in that order and show cause why the conditional order shall not be made absolute and to remove the obstruction or nuisance, if he does not object to the conditional order. Section 136 deals with consequences if the counter petitioner, against whom the conditional order was passed under Section 133, fails to comply with the order. Under Section 136, Sub Divisional Magistrate, if the person, against whom a conditional order was passed, does not perform that act or appear and show cause, shall make the conditional order absolute. On the other hand, as provided under Section 137, if that person appears, then the Magistrate is bound to question him as provided under sub-section (1) of Section 137, whether he denies existence of public right in respect of the way, river, channel or place and if he denies before proceeding under Section 138, Sub Divisional Magistrate is bound to consider whether there is reliable evidence in support of the denial. If the Sub Divisional Magistrate, on such inquiry, finds that there is reliable evidence in support of such denial, he is WPC 36335/08 5 bound to stay the proceedings until the matter of existence of such right has been decided by a competent court. On the other hand, if the Magistrate finds that there is no reliable evidence in support of the denial of existence of public right of the nature provided therein or in spite of the denial he fails to place reliable evidence in support of the denial, Magistrate has to proceed thereafter as provided under Section 138 of Code of Criminal Procedure. Under Section 138, Magistrate is bound to record evidence as in a summons case and thereafter to make the order absolute either without modification or with modification or to drop the proceedings. The question is whether Sub Divisional Magistrate has complied with the procedure as provided under the Code. 6. The case records made available by the Government Pleader from the Sub Divisional Magistrate, Kozhikode establish that Sub Divisional Magistrate has not complied with the procedure provided under the Code. Proceedings paper shows that along with the conditional order, Sub Divisional Magistrate directed counter petitioners to appear on 20.7.2006. It further WPC 36335/08 6 shows that case was not taken up on that day and instead case was called on 30.8.2006. Proceedings of the day reads: “Counsel filed vakalath for respondents 1 and 2. Petitioner present. Copy of the complaint is to be given to the counsel for respondents. For counter, 12.10.2006.” It is seen that on 12.10.2006, it is recorded that copy of the complaint is to be given to the counsel appearing for respondents 1 and 2. Evidently, the copy was not served till that day. It was then posted to 16.11.2006. On 16.11.2006 also, the same order was repeated, namely, petitioner to give copy of the complaint to the counsel for respondents and it was posted to 21.12.2006. On 21.12.2006, it is seen adjourned to 25.1.2007 for counter. On that day, there was no sitting and it was called on 29.3.2007, on which day also it was posted for filing counter to 3.5.2007. There was no sitting on that day and it is seen that it was called on 31.5.2007 and then adjourned to 12.7.2007. On 12.7.2007, it is recorded that counsel for the petitioner was present, respondents were absent WPC 36335/08 7 and no counter filed and posted for orders. It is seen that on 11.7.2007 itself Exhibit P11 order was passed. 7. Exhibit P11 order was not passed as an order under Section 136 of Code of Criminal Procedure. If that be so, it can only be an order passed under Section 138 of Code of Criminal Procedure. If so, it could be passed only after recording evidence as in a summons case. Though learned counsel appearing for respondents 3 and 4 argued that when no objection was filed and no cause was shown, there is no necessity to conduct an inquiry as provided under Section 138 and therefore, Exhibit P11 order is valid, I cannot agree with the submission. An order under Section 138 of Code of Criminal Procedure can be passed only after recording evidence as in a summons case. Apart from it, Sub Divisional Magistrate can pass an order, making the conditional order absolute, only as provided under Section 136 of Code of Criminal Procedure. Such an order is to be passed on the date when counter petitioner fails to appear or even if appear, did not show any cause on that day. But, after a series of adjournments for about one year, even if at that stage, WPC 36335/08 8 Sub Divisional Magistrate is exercising the power under Section 136 of Code of Criminal Procedure, the order must show that it was passed under Section 136. When Exhibit P11 order does not show that it is an order passed under Section 136 and that too for the failure of the counter petitioners to show any cause, the order can only be quashed. 7. Exhibit P11 order is, therefore, quashed. Sub Divisional Magistrate, Kozhikode is directed to proceed with the case and pass appropriate order in accordance with Section 138 of Code of Criminal Procedure, after recording evidence as in a summons case. Parties are directed to appear before the Sub Divisional Magistrate, Kozhikode on 16.9.2009. Sub Divisional Magistrate is directed to pass final order within three months from the date of appearance of the parties. 25th August, 2009 (M.Sasidharan Nambiar, Judge) tkv