IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 28.4.2008 Coram: The Honourable Mr.Justice K.CHANDRU Criminal Revision Case Nos. 1486 and 1504 of 2007 and M.P. No. 1 to 3 of 2007 in respective Crl. R.Cs. The Manager Kodanad Estate Kothagiri Taluk The Nilgiris District Rep. by R. Ravichandran ... Petitioner in both petitions -vs- The Sub-Divisional Magistrate and the Assistant Collector Coonoor The Nilgiris District ... Respondent in both petitions Petitions filed under Section 397 read with 401 of the Code of Criminal Procedure against the order made under section 141(1) of the Code of Criminal Procedure in the proceedings initiated under Section 133 and 141(1) Cr.P.C. and the order made in Petition No. 1 of 2007 respectively in the proceedings initiated in R.S. No. 139/1, 155/3,4, 159, 160/1, 4, 5 & 6 dated 20.9.2007 on the file of the Sub Divisional Magistrate and Assistant Collector, Coonoor. For Petitioner : Mr. B. Sriramulu, SC for Mr. A. Navaneethakrishnan For Respondent : Mr. G. Masilamani, AG for Mr. Babu Muthu Meeran, Addl.PP For Interveners : Mr. P. Wilson, ASGI COMMON ORDER Heard the arguments of Mr. B. Sriramulu, learned Senior Counsel representing Mr. A. Navaneethakrishnan for the petitioner, Mr. G. Masilamani, learned Advocate General leading Mr. Babu Muthu Meeran, Additional Public Prosecutor and Mr. P. Wilson, learned Assistant Solicitor General of India appearing for the Interveners and have https://hcservices.ecourts.gov.in/hcservices/ perused the records. 2. The petitioner Kodanad Estate, which is having Tea Plantations, represented by its Manager, has filed the present Criminal Revision Petitions challenging the order passed by the Sub- Divisional Magistrate [for short, 'SDM'], Coonoor. While Crl. R.C. No. 1486 of 2007 challenges the notice issued under Section 141 (1) Cr.P.C. dated 20.9.2007 issued pursuant to the order dated 20.9.2007 in Petition No. 1 of 2007 and Crl. R.C. No. 1504 of 2007 challenges the final order dated 20.9.1997 passed by the SDM in Petition No. 1 of 2007. 3. At the time of admission of the Criminal Revision Petitions, an order of status quo was granted starting from 21.9.2007 which was thereafter extended from time to time. Subsequently, on 27.11.2007, the interim order was extended until further orders. 4. Backdrop:- 4.1. There are around 179 families living in the hamlets known as Kamaraj Nagar and Anna Nagar situated in one side of the Kodanad Estate. It is claimed that those hamlets are in existence for over four decades and the only passage by which they can have access to the outside world was taking the service road situated inside the Kodanad Estate. Admittedly, the service road is situated within the Kodanad limits and it is a patta land belonging to the estate. Over the years, the residents of the two hamlets were allowed to go through the road running through the Estate for a length of 2.5 Kms. approximately. 4.2. However, restrictions were imposed on the vehicles plying through the road and that can be done only after getting written permission of the Estate Management and after paying a small fee as toll charges. For various security and other reasons, the gates situated at both ends of the road were closed during the night. It is seen that such collection of toll charges from the vehicles passing through the Estate was taking place for the last one decade. A gate pass marked as Ex. A.9 series before the respondent SDM shows the first gate pass having 29.9.1997 as its date of issue. 4.3. It transpires that the people of the two hamlets were irked over the delay in getting the gate pass for taking the vehicle and also the closure of gates during night time which was creating difficulties in case of travel for medical exigencies. They petitioned to the Kodanad Panchayat for finding permanent solution to the problem. Therefore, lead by a Ward Councilor of the Vth Ward, by name, S. Kavitha, through a letter dated 21.7.2007, (marked as Ex. A.3 by the SDM) and also signed by several other people, they petitioned to the President of the Grama Sabha. In the subject column of the petition, it was stated that the petition was regarding https://hcservices.ecourts.gov.in/hcservices/ the denial of vehicle transport to their village through the Estate road. In the prayer portion of the petition, it was stated that earlier it was free toll and that obtaining permission has become difficult and time consuming and, therefore, the Grama Sabha should find a permanent solution to the issue so as to enable the villagers to travel in their vehicles through the Estate Road. 4.4. The meeting of the Grama Sabha of the Pedugalmandhu village was convened on 21.7.2007 itself and a resolution was also stated to have been passed in the said meeting. The agenda of the meeting was stated to consider the representation received from the residents of the Anna Nagar and Kamaraj Nagar hamlets and also to decide the issue relating to setting up of the gates by the Kodanad Estate Management and preventing the people from travelling in their vehicles and to consider the complaint in public interest and to petition the District Collector. (This agenda was marked as Ex. A.2 by the SDM). The resolution (marked as Ex. A.3) alleged to have been passed reads as follows: "Resolved to request the Government to acquire the road and entrust the same to the Panchayat." 4.5. The Grama Sabha for a village is provided under Section 3 of the Tamil Nadu Panchayat Act 1994 [for short, 'Panchayat Act']. By virtue of Section 3(4) of the Panchayat Act, it is mandatory that the village panchayat shall give due consideration to the recommendations and suggestions of the Grama Sabha. In terms of Section 3(5) of the Panchayat Act, the quorum for a meeting of the Grama Sabha and the procedure for convening and conducting such meetings of the Grama Sabha was to be prescribed by the Government. 4.6. The State Government, by virtue of the Rules framed known as Tamil Nadu Grama Sabha (Quorum and Procedure for Convening and Conducting of Meeting) Rules, 1998 [for short, 'Rules'], had prescribed the procedure for convening of meetings. Under Rule 2 of the Rules, the meeting should be held only on official working days and in case it was to be held on public holidays, then it must be notified by the Inspector or by the Government. In the present case, a meeting was held on a Saturday, which was not an official working day for the Government. 4.7. Likewise, under Rule 3, for holding a meeting of the Grama Sabha, not less than 7 clear days notice prior to the date and time of the meeting is required and of the subjects to be deliberated should be given in the manner specified therein. The Rule also requires the manner of publication of the notice and copy of the notice and the agenda shall be sent to the Inspector. In the present case, the petition, by a section of people, was given on 21.7.2007 and the meeting seems to have been convened on the very same day and it is obvious that no notice as contemplated under Rule https://hcservices.ecourts.gov.in/hcservices/ 3, was given. These factors raise some suspicion in the convening of the Grama Sabha meeting without following the procedure prescribed by law. 4.8. Be that as it may. There is nothing wrong either on the Panchayat or the Grama Sabha in demanding a provision for a road linking the two hamlets to the main road. 4.9. In so far as the resolution demanded and as approved by the Grama Sabha meeting is concerned, it can be said to be a legitimate desire of a section of people and petitioning the Collector for the purpose of acquiring the land for laying down the road, can also be a lawful demand. This letter received from the group of people from the two hamlets in question along with Grama Sabha resolution were forwarded to the District Collector on the same day, viz., 21.7.2007, by the President of the Kodanad Panchayat. In the covering letter enclosing the resolution, he requested the District Collector to take action so that the people can use the road in their vehicles without any hardship. 5. Nemesis:- 5.1. From the original file produced by the learned Public Prosecutor from the SDM Court, there is nothing to indicate as to when these letters were received by the District Collector and as to what action was taken on the representations. But, however, it is seen from the notes file of the SDM in Rc. B1 No. 8390 of 2007 where he had recorded that the Revenue Divisional Officer, Nilgiris District had instructed him to take necessary action to provide pathway to the residents of Anna Nagar and Kamaraj Nagar. It was thereafter the issue was taken care of by the SDM by invoking his power under Section 133 Cr.P.C. In that view of the matter, the then SDM, Coonoor, recorded the statements of the President of Kodanad Panchayat Union, Tmt. S. Kavitha, Member of Ward V, Kodanad Panchayat, Gopal, Member, Ward II, Kothagiri Town Panchayat and some public of Anna Nagar and Kamaraj Nagar hamlets. 5.2. The substance of the statement recorded was that the persons, who purchased the petitioner estate, have stopped vehicles from entering the Estate road without permission and due to delay in getting prior permission, people were put to hardship. Therefore, relief is required so that the people can use the Estate Road at all times along with the vehicle. It is seen from the statements that before the present owners came into possession, the passage through the Estate Road was toll free. After the present owners came into possession, they were collecting toll from the vehicles and the road was closed during the night. Hence, a plea was made so that the Estate Road can be used by them on all 24 hours and it must be made toll free. https://hcservices.ecourts.gov.in/hcservices/ 5.3. The respondent SDM, on the basis of these statements and after perusing the Topo sketch showing the private road passing through R.S. Nos. 139/1, 155/3, 4, 159, 160/1, 4, 5 & 6, purporting to exercise powers under Section 133 (1)(a), by his order dated 01.8.2007, made the following order: ".... The evidence of the President of the Kodanad Panchayat prima-facie shows that the roads under reference is used by the public at large from a very long time in order to reach Anna Nagar, Kamaraj Nagar, etc.. The road under reference is a detailed road. As such any obstructions to the same by any person is unlawful obstruction within the meaning of Section 133 Cr.P.C. The public are stated to be put to inconvenience and hardship by the arbitrary action of the Management of Kodanad Estate by preventing access over the said road. The obstruction still exists. As stated above, the road in question is a detailed road as in old and new survey records. The Topo sketch which was finalized is still in force. It is evident that Kodanad Estate Management have obstructed detailed road without proper authority of law. The public have the right to use the detailed road at any time. The interests of public, fairplay and justice require that, the Kodanad Estate Management is restrained from levying fees for entry of vehicles or issuing of passes and are restrained from obstructing the public from using the road either by foot or by vehicle at any time. I do hereby direct and require you to remove obstruction in the detailed road in R.S.No. 139/1, 155/3, 4, 159, 160/1, 4, 5 and 6 connecting the Kodanad – Kotagiri road to the hamlets referred above within 15 days. If you have any objection, you are called upon to appear before me by 11.00 AM on 17.08.2007 to show cause why this order should not be made absolute." 5.4. On receipt of the said notice, the petitioner, by a letter dated 04.8.2007, questioned the right of the public over the Estate road as well as the basis on which the order of the SDM under Section 133(1)(a) Cr.P.C. was passed. In paragraph 5, it was stated by them that the concerned road is a private property wholly owned by the Kodanad Estate, which is serving as a service road to have ingress and egress to certain parts of the Estate. It was also https://hcservices.ecourts.gov.in/hcservices/ stated that it was neither a 'public road' nor a public thoroughfare. Through that letter, they also demanded copies of all documents which formed the basis for the present order. In paragraphs 11 and 12 of the said reply, they also questioned the bona fides of the Government in invoking the powers under Cr.P.C. They also stated that the President of Kodanad Panchayat Union was having enmity and animosity with the Estate. 5.5. The SDM, by his proceedings dated 03.9.2007, gave the copies of the petitions received from the public, the resolution of the Grama Sabha as well as the statements recorded from the public. With reference to the survey records and village maps, etc., he directed the petitioner to approach appropriate authorities and get certified copies. He also stated that it was only a provisional order passed under Section 133(1)(a) Cr.P.C. 5.6. The petitioners, through their counsel, filed a memo of objection dated 19.9.1997 stating that the invocation of Section 133 Cr.P.C. by the SDM was vexatious since the power under Section 133 Cr.P.C. can be exercised only in respect of a public road and there was no material to show that the SDM had satisfied himself for invoking power under Section 133 Cr.P.C. A further objection dated 20.9.2007 was also raised stating that it was not a public way and that before passing the preliminary order dated 01.8.2007, no opportunity was given to the petitioner and since they have lost confidence in the SDM, he should desist from hearing the case. They also sought for time to move this Court challenging his provisional order. 5.7. However, brushing aside these objections, the SDM, on 20.9.2007, went ahead with his enquiry and recorded the statements of three witnesses. P.W.1 Ponthose was the President of the Village Panchayat and through him, documents Exs. A.1 to A.8 including Topo sketch as Ex. A.4 and the sketch maps Ex. A.5 series were marked. A statement of estimates for having provided amounts by the Panchayat Union for developing the road was also filed and marked through him as Ex. A.6 series. The notice issued by SDM was marked as Ex. A.7 and the acknowledgment was marked as Ex. A.8. It must be stated that while Exs. A. 1 to A.3 were in the knowledge of the Panchayat President but for Exs. A. 4 to A.8, he was neither its author nor had officially dealt with those documents. But, yet, these documents were allowed to be marked through him. At the end of the deposition of P.W.1 Ponthose, the SDM recorded that the petitioner's side refused to cross-examine him. 5.8. Similarly P.W.2, Arumugam, who was a resident of the hamlet, was also examined. For the first time, it was stated by him that the obstructions in the Estate Road were created by the petitioner Estate Management and the same must be removed. Ex. A.9 series, which are five receipts regarding toll paid to the Estate, was marked https://hcservices.ecourts.gov.in/hcservices/ through P.W.2. 5.9. P.W.3 Subburaj was the Village Administrative Officer of the Kodanad Village and in his evidence, he heard from the people of the two hamlets that they are being prevented from taking their jeeps and lorries without paying the toll and the vehicles are permitted only from 6 AM to 6 PM and that the obstruction must be removed. At the end of the deposition of P.W.3, the SDM noted that no documents were marked through him. 5.10. On the strength of these materials, the SDM passed a final order dated 20.9.2007 confirming the earlier order passed under Section 133(1)(a) Cr.P.C. He also issued a consequential order under Section 141 Cr.P.C. to remove the obstruction within 24 hours failing which penalty will be imposed in terms of the Indian Penal Code. In the speaking order, he came to the conclusion that there was sufficient materials to indicate the existence of a public way and the field map shows that there was a public road. He also rejected the defence taken by the petitioner about there being no material available on this file. 5.11. In the final order dated 20.9.1997, the SDM, while considering the deposition of P.W.3, recorded as follows: "P.W.3: Subburaj, VAO of Kodanad: He said about the resistence shown by the Kodanad Estate Management for holding village panchayat meetings and also the reckless attitude of the Kodanad Estate Management. He has deposed about the existence of the road and has produced topo sketches of the old and new survey records as well as the field measurement book (FMB) which are marked as Ex A5 series. He said that the road is a plan marked road." [Emphasis added] 6. SDM Order under Attack:- 6.1. Mr. B. Sriramulu, learned Senior Counsel leading Mr. A. Navaneetha Krishnan, counsel for the petitioner, submitted that the SDM did not follow the procedure prescribed under Sections 133, 137 and 138 Cr.P.C. under Chapter X of the Cr.P.C. He contended that the road was situated in patta lands, which is not disputed. The present owners, from the date of purchase of the property in the year 1995, have been in full control over the Estate including the Estate Road. They permitted the public of the two hamlets the usage of the road. In so far as the vehicles passing through the Estate Road is concerned, necessarily, they will have to pay toll for using the road maintained at their cost. When there is a permissive usage https://hcservices.ecourts.gov.in/hcservices/ given to third parties, it is only a licence. The Estate owners, in order to save the properties of the Estate, and for personal security are entitled to close the gates during night hours. He also stated that the practice of collecting toll did not start over night and it has been in existence ever since the Estate was taken over in the year 1995. He also filed certain documents in the form of typed book showing that such practices are adopted by many Estate Managements in the Nilgiris District. In that paper book, various photographs were filed to show that many Estate Managements in their Estate Roads, have imposed restrictions on the right of passage by public. 6.2. The first receipt in Ex. A.9 series was of the year 1997. The practice adopted by the Estate Management was never objected to over the last 12 years and, therefore, there was no immediate provocation for exercising emergency powers under Section 133 Cr.P.C. He also submitted that there was no public nuisance in the form of an obstruction in a public road and invocation of power under Section 133 Cr.P.C. was a clear abuse of process of law. 6.3. Further, he submitted that the SDM did not state in the impugned order as to when the nuisance was created. He also submitted that the present action of the respondent was part of a larger design to restabilise the Estate Management and to give constant pin pricks so that they cannot enjoy the benefits from the Estate. Apart from the allegation of mala fides, he also submitted that the demand of the people including the resolution passed by the Grama Sabha, marked Exs. A.1 to A.3, will clearly show that the people only wanted acquisition of the Estate Road for a free passage at all times as a permanent solution. 6.4. Further, the learned Senior Counsel contended that the substance of the three documents clearly shows that there was no obstruction which requires the invocation of powers under Chapter X of the Code of Criminal Procedure. For invoking powers under Section 33(1)(a) Cr.P.C., there must have been a public nuisance created so as to attract the provision. The SDM did not render any finding with reference to the starting point of the nuisance for invoking the emergency power. 6.5. He further submitted that the demand for a free passage by any person through a private land is not contemplated in law and if it is permitted, it will be licencing trespass into a private land, which, otherwise, is an illegal act as per the penal laws. Further, by invoking the powers under Section 133 Cr.P.C., a new right cannot be created, viz., free right of passage inside a private land. He also submitted that if there is any serious dispute with reference to claim or entitlement of party, then that party must be directed to approach the Civil Court to establish their rights. In this case, by an interim response filed by the petitioner Management before the https://hcservices.ecourts.gov.in/hcservices/ SDM, they had clearly pointed out that the petitioner is a private estate and the road exclusively belonged to them. When such denial of a right is made by a party before the SDM and in the absence of the other party establishing their right by credible materials, the SDM should have stayed his order under Section 137(2) Cr.P.C. and relegated the parties to the Civil Court and should have stayed his own preliminary order dated 01.8.2007 as contemplated under the said provision. 6.6. The learned Senior Counsel also submitted that a reading of the impugned order does not show that the SDM had not exercised any discretion enjoined upon him by the statute. Apart from this, he also took exception to the SDM taking cognizance of a matter upon certain representations, which were never addressed to him and even in Exs. A.1 to A.3, there was no endorsement of the Collector referring the matter for an action by the SDM. Further, he took serious exception to the order passed by the SDM. He argued that while recording the deposition of P.W.3, though it was recorded that no documents were marked through him but, in the final order, it is found that Ex. A.5, topo sketch and the survey records were produced by him. This will clearly give a falsity to the impugned order as well as raise doubts about the genuineness of the evidence recorded by the SDM. He also referred to certain decisions of several High Courts and the Supreme Court dealing with Section 133 Cr.P.C. 6.7. The learned Senior Counsel also submitted that the petitioners have not been given reasonable opportunities for defending themselves either at the stage of preliminary enquiry or at the stage of final order despite requests having been sought. He also submitted that the SDM who belongs to the Indian Administrative service, was a North Indian and unfamiliar with Tamil and was yet to pass the Tamil language test for getting his probation declared. But yet in the end of depositions of P.Ws. 1 to 3, he had noted down with his own hand writing, which is as follows: "Taken down by my PA to my dictation in open court. Read over and interpreted to witness and admitted by the witness to be correct." He questioned as to how a person who does not know Tamil, can record such a statement. He submitted that this will show that he was dancing to the tunes of some other forces working behind him. 6.8. The learned Senior Counsel further submitted that Ex. A.6 series is a Panchayat Union document regarding estimate of expenditure spent on laying various roads during the year 1995-96 under the JVVT scheme. The caption of the document shows that it was only an estimate for up-keeping the roads. The relevant endorsement shows that it refers to the expenditure for laying approach road to Anna Nagar. But that does not mean that it was https://hcservices.ecourts.gov.in/hcservices/ done in the private road belonged to the Estate and till date, it was the Estate which was maintaining the Road. But the SDM had placed reliance upon the said document for the purpose