IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 WP(C).No. 30397 of 2009(Q) -------------------------- PETITIONERS: ------------------- 1. NARENDRANATH C., AGED 51 YEARS, S/O. CHELLAPPAN PILLA, MEVARATH VEEDU, PERUMKULAM P.O., KOTTARAKARA, KOLLAM. 2. MOHAN KUMAR, AGED 53 YEARS, S/O. CHELLAPPAN PILLA, MEVARATH VEEDU, PERUMKULAM P.O., KOTTARAKARA, KOLLAM. BY ADVS. SRI.P.HARIDAS SRI.C.R.SYAMMOHAN RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, KOLLAM. 2. THE TAHSILDAR, KOTTARAKKARA. 3. THE VILLAGE OFFICER, KALAYAPURAM. 4. SMT.JAMEELA BEEVI, ALHAMRA VEEDU, MUSLIM STREET, KOTTARAKKARA. BY GOVERNMENT PLEADER, SRI.P.R.JAYAKRISHNAN BY ADVS. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30397 of 2009(Q) --------------------------------------- APPENDIX ----------------- PETITIONER'S EXHIBITS ----------------------------------- EXT.P1. COPY OF THE PARTITION DEED NO.2318/1998 DATED 04.08.1998. EXT.P2. COPY OF THE CERTIFICATE DATED 27.06.2006 ISSUED FROM AGRICULTURAL OFFICER, AGRI EXPORT ZONE, PRINCIPAL AGRICULTURAL OFFICE, KOLLAM. EXT.P3. COPY OF THE CERTIFICATE NO.F194/0408 NPOP/EU DATED 26.04.2008. EXT.P4. COPYT OF THE ORDER NO.B7-17054/2009 DATED 26.09.2009 ISSUED FROM TAHSILDAR, EXECUTIVE MAGISYTRATE, KOTTARAKARA. EXT.P5. COPY OF THE OBJECTION FILED BY 1ST PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P6. COPY OF THE OBJECTION DATED 05.10.2009 ISSUED FROM 1ST PETITIONER. EXT.P7. COPY OF THE OBJECTION DATED 22.10.2009 ISSUED FROM 1ST PETITIONER. EXT.P8. COPY OF THE POSTAL RECEIPT DATED 23.10.2009. RESPONDENTS EXHIBITS : NIL -------------------------------------- / TRUE COPY / P.A. TO JUDGE VK P.S.GOPINATHAN, J. ------------------------------ W.P.(C) No.30397 OF 2009 ------------------------------ Dated this, the 14th day of December, 2010 J U D G M E N T ~~~~~~~~~~~ Assailing Ext.P4 order issued by the 2nd respondent, this Writ Petition was filed under Article 226 of the Constitution of India. Ext.P4 appears to have been issued under Section 133(1)(a) of the Code of Criminal Procedure. Though Section 133(1) Cr.P.C. Mandates only a conditional order, Ext.P4 reads as if a final order. Going by Ext.P4, it appears that the said order was issued by the 2nd respondent in pursuance of a petition filed by the 4th respondent and on the basis of a report of the Kalayapuram Village Officer. The main grievance of the petitioner is that before issuing Ext.P4 he was not heard and if at all the 4th respondent had got any right it is only in respect of a private pathway and not on a public pathway and that the dispute is of a civil nature over which the 2nd respondent has no jurisdiction and that even if the writ petitioner had obstructed any public pathway the 2nd respondent should have issued only a conditional order as contemplated under Section 133(1) of the Code of Criminal W.P.(C)No.30397/2009 - 2 - Procedure. 2. Having heard the learned counsel appearing for the petitioner, Sri.P.Haridas, and the learned Government Pleader, I find merit in the submission. Even if it is assumed that the petitioner had blocked any public pathway, the exparte order that should have been issued is a conditional order as contemplated under Section 133(1) of the Code of Criminal Procedure giving an opportunity to the writ petitioner to show cause for not enforcing the order and in the event the petitioner shows any cause for not enforcing it, the matter should have enquired under Section 137 and 138. In this way the order impugned is erroneous. It is submitted that the writ petitioner had already filed detailed objection before the 2nd respondent. In the above circumstance, taking into account of the nature of the dispute, I find that the grievance of the petitioner can be redressed by directing the 2nd respondent to conduct an enquiry u/s 138 Cr.P.C. after treating Ext.P4 order as a conditional order and to dispose the complaint filed by the 4th respondent. W.P.(C)No.30397/2009 - 3 - 3. The result, this Writ Petition is disposed directing the 2nd respondent to conduct an enquiry as contemplated under chapter XB of the Code of Criminal Procedure to dispose the petition filed by the 4th respondent within three months. Ext.P4 shall be treated as a conditional order. In case the writ petitioner had not already filed objections, that shall be filed within two weeks from today. No order as to costs. (P.S.GOPINATHAN, JUDGE) ps