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1954 DIGILAW 114 (KER)

Ouseph v. Varkey

1954-07-19

SANKARAN

body1954
Judgment :- 1. The question raised in this Revision Petition relates to the legality of the procedure followed by the First Class Magistrate at Changanacherry in passing the final order in Miscellaneous Case No. 24/1953 on the file of this Court. The proceedings in that case were conducted under Chap.10 of the Code of Criminal Procedure. Such proceedings were initiated by a complaint petition dated 30.10.1953 presented by the respondent in this revision petition, alleging that three counter-petitioners mentioned in the petition had put up three small sheds in the property covered by Survey Nos. 46/1, 46/10 and 49/10 of Ramankari Pakuthy towards the close of October 1953 and thereby caused obstruction to the use of a public canal or waterway running through this property. It was also alleged that the canal was in existence for a long time and that it was being used for irrigating the paddy lands lying to the south of it and also a waterway by the public in general inhabiting that locality. On these allegations, the petitioner prayed that the necessary steps may be taken for the removal of the obstruction or nuisance caused by the counter-petitioners so that the canal may be available for the lawful use of the public as before. The Magistrate recorded the statement of the petitioner and forwarded the petition to the police for investigation and report. On the basis of the report thus received and also on the statement of the petitioner, the Magistrate passed a preliminary order directing the three counter-petitioners to remove the sheds put up by them in the property and to leave the canal free for the use of the public or to appear before him on 2.12.1953 and to show cause why the said direction should not be complied with. Even though the counter-petitioners appeared on 2.12.1953, nothing further was done in pursuance of the notice issued to them. On 9.12.1953 they filed a written statement denying the allegation that they had caused the obstruction to the use of the canal by the public and maintaining that the canal had become silted up years back and had ceased to be waterway and that the sheds in question were in existence for a period of nearly six years. It was also contended by them that the situation did not warrant any action being taken under S. 133 of the Code of Criminal Procedure. It was also contended by them that the situation did not warrant any action being taken under S. 133 of the Code of Criminal Procedure. The Magistrate straightaway proceeded to inquire into the truth of these conflicting allegations. 5 witnesses were examined and Exts. A to M were marked on the petitioner's side. All the three counter-petitioners and an independent witness were examined and Ext. I marked on the side of the counter-petitioners. On a consideration of the entire evidence thus recorded, the Magistrate recorded his findings that the petitioner's allegations are true and accordingly a final order was passed by him under Clause.3 of S. 137 by which the preliminary order was made absolute. Notice as contemplated by Clause.1 of S.140 was also issued to the counter-petitioners intimating them that they are to remove the obstruction complained of by the petitioner within 14 days from the date of the order and that in case of default they will be liable to the penalty as provided for by S. 188 of the Penal Code. The revision petition is directed against the final order thus passed by the learned First Class Magistrate. 2. The point raised on behalf of the revision petitioner is that the procedure followed by the lower court is illegal and unwarranted and that as such the final order passed by the learned Magistrate is liable to be quashed. I think that this contention is well-founded and has to prevail. The action contemplated by Chap.10 of the Code of Criminal Procedure is regulated by the special procedure prescribed by the several sections of that Chapter. Whenever a District Magistrate, a Sub-divisional Magistrate or a Magistrate of the First Class is satisfied by a police report or other information or evidence that there is a prima facie case for taking action under S.133, it will be competent for him to pass a preliminary order as contemplated by that section for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place. After passing such an order, he has to proceed strictly in accordance with the procedure laid down by S.139A. This section contemplates three distinct stages in that procedure. The first stage is reached when the party against whom the preliminary order is issued appears before the Magistrate in pursuance of the notice issued to him. After passing such an order, he has to proceed strictly in accordance with the procedure laid down by S.139A. This section contemplates three distinct stages in that procedure. The first stage is reached when the party against whom the preliminary order is issued appears before the Magistrate in pursuance of the notice issued to him. When he so appears, the section states that the Magistrate shall question him as to whether he denies the existence of the public right said to be obstructed by him. If he denies the existence of that right, the Magistrate-shall before proceeding under S.137 or under S.138, proceed to inquire into the matter for the purpose of deciding as to whether there is prima facie acceptable evidence in support of such a denial. It is obvious that the evidence at this stage of the inquiry is to be confined to the existence or otherwise of the public right in question. If the conclusion reached by the Magistrate as a result of the inquiry is that there is prima facie evidence in support of the denial of the public right, the Magistrate shall record his findings to that effect and stay the proceedings started by him and leave the question of the existence of the public right to be decided by a competent civil court. 3. The necessity to proceed with the second stage of the inquiry as contemplated by S. 137 or S. 138 of the Code of Criminal Procedure, regarding the other matters in controversy between the parties, will arise only if the conclusion reached by the Magistrate as a result of the earlier inquiry is that there is not even prima facie evidence in support of the denial of the existence of the public right. This position is made clear by Clause.2 of S.139A. The question of making the preliminary order absolute can also arise only at the conclusion of this stage of the inquiry. S. 137 states that if the Magistrate is satisfied that the order is not reasonable and proper, no further proceedings shall be taken in the case, and if he is not so satisfied the order shall be made absolute. The question of making the preliminary order absolute can also arise only at the conclusion of this stage of the inquiry. S. 137 states that if the Magistrate is satisfied that the order is not reasonable and proper, no further proceedings shall be taken in the case, and if he is not so satisfied the order shall be made absolute. In view of the mandatory nature of the statutory directions contained in S.139A, it cannot be said that the failure to comply with these directions will only amount to a mere irregularity which can be cured under S. 537 of the Code. The directions really go to the root of the jurisdiction of the Magistrate to pass final orders in proceedings commenced under Chap.10 of the Code. He will have jurisdiction to proceed with the inquiry contemplated by S. 137 or S. 138 only when it is definitely found as a result of the first stage of the inquiry as directed by S.139A, that the denial by the party against whom action is proposed to be taken of the public right in question, is not supported by any reliable evidence at all. Where the Magistrate dispenses with the first stage of the inquiry and straightaway proceeds to inquire into all the points in dispute between the contending parties and to pass a final order after weighing the evidence adduced by them at one and the same stage of the inquiry, the entire proceedings will be illegal and ultra vires. On this question there is practical unanimity in the view taken by the several High Courts in India. In Kalipada Das v. The King (AIR 1949 Calcutta 583) it was ruled that the inquiry under S.139A must end with a finding in terms with that section and it is only when the denial of the public right is found to be not well-founded that the inquiry under S. 137 should be undertaken and that where the Magistrate neither questioned the party as to whether he denied the existence of the public right of the land in question nor came to a definite finding in support of this denial of such a public right, the Magistrate's order making absolute the preliminary order passed under S. 133 is bad in law. In Chhangu v. Surajpal (AIR 1948 Oudh 19) the following dictum was laid down: "The language of S.139A is perfectly clear and unambiguous and requires evidence at two stages once in the inquiry under S.139A and again in the proceedings under S. 137. If the parties are deprived of their right of producing evidence at either of these stages and the order is made absolute, they are materially prejudiced and it cannot be said that only an irregularity has been committed which may be cured by invoking the aid of S. 537, Criminal Procedure Code". The necessity for a strict adherence to the procedure prescribed by S.139A has been particularly emphasised in Sukh Lal v. Satyadeo Prasad (AIR 1951 Patna 311). There the position has been explained as follows: "The procedure laid down in S.139A requires, first that the party against whom a provisional order has been made, shall appear before the Magistrate and deny the existence of the public right in question; and, secondly, he shall produce some reliable evidence; and, thirdly, that such evidence shall be legal evidence and shall support the denial. If these three conditions are satisfied, then the Magistrate's jurisdiction to continue the proceedings ceases". To the same effect are the decisions in Hamid Ali v. Emperor (AIR 1930 Lahore 1046), in Mt. Chunni v. Emperor (AIR 1938 Allahabad 653), in Mt. Ram Kali v. Kripa Shanker (AIR 1933 Allahabad 615), in Govinda v. Ayi (I.L.R.1939 Madras 1030) and in Sadasheo Chintaman v. Chintaman Khushalrao (AIR 1945 Nagpur 226). 4. In the present case, it is seen that the Magistrate has violated the procedure prescribed in S.139A at all its different stages. When the counter-petitioners appeared before him on 2.12.1953, in pursuance of the notice issued to them in respect of the preliminary order passed under S. 133, the Magistrate did not care to question them whether they deny the existence of the public right to use the water-way in question. Even though the failure to do so was itself a serious irregularity, it cannot be said to have rendered the subsequent proceedings illegal. It is seen that on 9.12.1953 the counter-petitioners filed a written statement in which they denied the existence of the public right in question. Even though the failure to do so was itself a serious irregularity, it cannot be said to have rendered the subsequent proceedings illegal. It is seen that on 9.12.1953 the counter-petitioners filed a written statement in which they denied the existence of the public right in question. Thus the purpose intended to be served by questioning them was achieved, and hence it cannot be said that they were in any way prejudiced by the Magistrate's omission to question them on 2.12.1953. The irregularity has thus been substantially cured by the counter-petitioner's own conduct. In view of their denial of the public right in question, the Magistrate was bound to inquire and to come to a definite conclusion whether there was reliable evidence in support of such a denial. The Magistrate failed to do so. On the other hand, he called upon both the contending parties to adduce their evidence in support of all the points in controversy. In doing so he was assuming that he had jurisdiction to proceed with such an inquiry falling under S. 137 even at the outset. On that assumption he has weighed the evidence and has found the allegations against the counter-petitioners to be true and has accordingly made the preliminary order absolute. There can be no doubt that the procedure followed by the Magistrate was illegal and that the same has caused serious prejudice to the counter-petitioners and has resulted in a failure of justice. 5. In the result this revision petition is accepted and the final order passed by the Magistrate in Miscellaneous Case No. 24 of 1953 is set aside. The case is sent back to the lower court for fresh inquiry and disposal in accordance with law and in the light of the observations made above. Allowed.