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1997 DIGILAW 767 (MAD)

VELUCHAMY v. S. ALAGAPPAN

1997-07-30

S.THANGARAJ

body1997
Judgment : S. THANGARAJ, J. ( 1 ) THE counter petitionersbefore the Executive Sub Divisional Magistrate and Asstt. Collector, Paramakudi, in R. O. C. A2/12121/ 94 have filed this revision petition. ( 2 ) THE Executive Sub Divisional Magistrate, Paramakudi, on the petition filed by the revision petitioners, has passed an order under Section 133 Code of Criminal Procedure on 3-10-1994. The revision petitioners herein, who were counter petitioners appeared before the Executive Sub Divisional Magistrate, had filed their objections on 19-10-1994. The Executive Sub Divisional Magistrate and Asstt. Collector got the report of the Tahsildar, Paramakudi and thereafter without making any enquiry into the matter passed the final order under Sections 138 and 141 Cr. P. C. on 15-11-1994. Against the said order the revision petitioners have preferred this revision. Section 133 Cr. P. C. empowers the Executive Sub Divisional Magistrate to pass a conditional order for removal of nuisance. Accordingly, the Executive Sub Divisional Magistrate passed the order under Section 133 Cr. P. C. on 310-1994. On the service of the summons the counter petitioners the revision petitioners herein, appeared before the Sub Divisional Magistrate, Paramakudi and filed their objections. Thereafter the learned Magistrate shall take evidence in the matter as in a summons case. as per Section 138 Cr. P. C. However, the learned Magistrate has not taken any evidence either of the petitioners or of the counter petitioners as contemplated under Section 138 Cr. P. C. The learned Magistrate has called for the report of the Tahsildar, Paramakudi, and the said Tahsildar has filed his report, which forms part of the record. Learned Magistrate is empowered to direct the taar investigation as contemplated under Section 139 Cr. P. C. However as per Section 140 Cr. P. C. the Magistrate may furnish such person with such written instructions, as may seem necessary for his guidance. There is nothing on record to show that the learned Magistrate has given any such written instructions to the Tahsildar. Paramakudi, to submit as report. As per Section 140 (2) Cr. P. C. the report of such person may be read as evidence in the case. However, there is nothing on record to show either the learned Magistrate has shown the report of the Tahsildar to the counter petitioners who are the revision petitioners herein, or that their attention was drawn to that effect. As per Section 140 (2) Cr. P. C. the report of such person may be read as evidence in the case. However, there is nothing on record to show either the learned Magistrate has shown the report of the Tahsildar to the counter petitioners who are the revision petitioners herein, or that their attention was drawn to that effect. Therefore, it is a clear case wherein the learned Magistrate has not followed the relevant provisions of Code of Criminal Procedure before passing the final order under Section 141 Cr. P. C. ( 3 ) LEARNED counsel appearing for the revision petitioners has drawn my attention to two of the rulings of our High Court and one ruling of the Kerala High Court. In The Executive Officer, Sri Rajagopalaswami Temple, Pudupalayam, Cuddalorev. A. Satchidanandam at page 18 this court has held that it is necessary for the Magistrate to record evidence as contemplated under Section 133 Cr. P. C. and the learned Magistrate making an inspection of the property without giving notice to the parties and without preparing the notes of inspection held to be an irregularity. ( 4 ) LEARNED Executive Sub Divisional Magistrate and Asstt. Collector Paramakudi, has neither given any notice to the parties concerned nor drawn their attention to the report of the Tahsildar. Paramakudi before passing the final order under Section 141 Cr. P. C. ( 5 ) IN A. Nesamony v. The State of Tamil nadu, rept. by Tahsildar and another at page 108 this Court has held that When a Magistrate proceeds under Sec. 133 of the Cr1. P. C. he has to issue a conditional order under Sec. 133 (1 ). The order has to be served on the party and if in obedience to the notice issued the party appears before the Magistrate the Magistrate has to ascertain from him whether he denies the existence of a public right under Sec. 137 of the Code. In the event of his denial the Magistrate has to enquire into the matter and give a finding But most unfortunately the Tahsildar Executive Magistrate instead of making an enquiry or giving a finding has passed an order making the earlier order absolute and to crown it all. Has demolished the compound wall put up by the petitioner. This is in flagrant violation of the procedure enjoined upon the Magistrate under Sees. Has demolished the compound wall put up by the petitioner. This is in flagrant violation of the procedure enjoined upon the Magistrate under Sees. 133, 137 and 138 of the Cr1. P. C. T This ruling is also applicable to the instant case. ( 6 ) IN Pavithran Madukrani and others v. Konju Kochu and another. the Kerala High Court has held that: TTA Magistrate can make a preliminary order absolute only when the party against whom a preliminary order is passed fails to appear before him on the first occasion after receipt of the preliminary order. When the party appears and denies the public right the Magistrate has to enquire into the denial put forward and pass appropriate orders on such enquiry in accordance with Sec. 137 (2) If the party against whom the preliminary order is passed fails to appear to lead evidence in support of his denial the Magistrate had to enter into the second stage contemplated in Sec. 138 and enquire about the existence of the public right alleged by taking evidence in the matter as in summons case. Consequently where the party had appeared and denied the public right order made absolute without holding enquiry would be liable to be set aside. TI The said decision is also applicable to the instant case. The Magistrate has not followed the procedure laid down in the Code of Criminal Procedure. ( 7 ) HOWEVER from the objections filed by the counter petitioners the revision petitioners herein before the learned Magistrate it is clear that number of civil cases are pending before the Court of the District Munsiff. Paramakudi. in respect of the property. When the matter is pending before the competent court of civil jurisdiction it is for the learned Executive Sub Divisional Magistrate to await the judgment of the Civil Court and thereafter to proceed the matter if necessary. Till then it is for the learned Executive Sub Divisional Magistrate to stay the proceedings. In spite of the various averments made in the objections by the counter petitioners, the learned Executive Sub Divisional Magistrate has passed the final order without looking into the objections at all. Therefore it is a fit case wherein the order of the learned Executive Sub Divisional Magistrate has to be quashed. In spite of the various averments made in the objections by the counter petitioners, the learned Executive Sub Divisional Magistrate has passed the final order without looking into the objections at all. Therefore it is a fit case wherein the order of the learned Executive Sub Divisional Magistrate has to be quashed. ( 8 ) IN the result revision petition is allowed, the order of the learned Executive Sub Divisional Magistrate and Asstt. Collector, Paramakudi, quashed the matter is remanded back to the learned Executive Sub Divisional Magistrate and Asstt. Collector, Paramakudi for disposal according to law. Consequently, Cr1. M. P. No. 74821 1994 is dismissed Revision Petition allowed.