Judgment P.V. Narayanan Nambiar, J. 1. Alleging obstruction by the Sporting Star Club to the public pathway which runs between the property situated in Sy. No. 501/7 and Sy. Nos. 501/8 and 501/8-1 which belongs to the Sporting Star Club, the 5th respondent and the petitioner respectively, petitions have been filed by the petitioner and the 5th respondent before the Tahsildar, Chirayinkeezhu Taluk who initiated proceedings under S.133 Cr. P.C. in his capacity as the Executive Magistrate and passed a conditional order on 25.11.1997 by which the second respondent was restrained from constructing a compound wall causing obstruction to the pathway leading to Venkulam-Janardhanapuram Road to appear before him on 1.12.1997 and to show cause why the order should not be made absolute. Pursuant to the order, the parties appeared before the Executive Magistrate who conducted a local inspection, heard the parties and passed a final order on 24.1.1998 by which they second respondent was permitted to construct a compound wall after leaving S links for the 5th respondent to have access to her property. The conditional order dated 25.11.1997 by which the second respondent was prevented from proceeding with the construction was withdrawn. The petitioner challenges the said order. 2. It is the case of the petitioner and the 5th respondent that the public pathway which leads to Venkulam-Janardanapuram road is in existence which runs east-west on the north of the property. It is their case that they constructed a compound wall on the north of the property after surrendering sufficient space, more than a metre, to the Panchayat for widening the pathway. It is their further case that the Panchayat is maintaining the pathway. Annexure I produced along with Crl.M.P. No. 2330 of 1998 shows that the Panchayat had spent about Rs. 28,800/-during the year 1995-96 for maintaining the pathway. The Panchayat has even described the pathway as a road Resolution was also passed by the Panchayat by which the District Collector Trivandrum was requested to take appropriate action for prevention of obstruction tc the alleged road. But, it is the case of the Panchayat who is represented by respondent; 3 and 4 that the property of the petitioner and 5th respondent was not surrendered ii accordance with law. But, it is not their case that a public pathway is not in existence at the relevant place and they are not maintaining the same as a pathway. 3. But, it is not their case that a public pathway is not in existence at the relevant place and they are not maintaining the same as a pathway. 3. It is also brought to my notice that the 5th respondent filed a suit, O.S. No. 31: of 1997 on the file of the Munsiffs Court, Varkala for declaration and injunction respect of the property where the pathway is situated and the suit is pending. 4. I heard the parties elaborately and perused the file maintained by the Court below. I am satisfied that the impugned order is liable to be set aside as the same was passed in utter disregard to the provisions contained in Ss.133 to 1138 Cr. PC. 5. As per the conditional order, the alleged obstructer was directed to comply with the order or to appear before the Executive Magistrate and show cause why the order should not be made absolute. The Executive Magistrate gets jurisdiction under S.133 of the Code of Criminal Procedure to remove public nuisance including obstruction to public pathway or when a pathway is unlawfully used by the public. S.137 of the Code provides that on appearance of the obstructer before him against whom the order was made, the Magistrate shall question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, as the case may be and if he does so, the Magistrate shall before proceeding under S.138 Cr.P.C., inquire into the matter. S.137(2) provides that if in such inquiry, the Magistrate finds that there is reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent court and if he finds that there is no such evidence, he shall proceed as laid down in S.138. As per S.137(3) Cr.P.C. if a person on questioning by the Magistrate fails to deny the existence of a public right or who having made such denial fails to adduce reliable evidence in support thereof shall not in the subsequent proceedings be permitted to make any such denial. S.138(1) of the Code provides that if a person against whom an order under S.133 is made appears and show cause against the order, the Magistrate shall take evidence in the mater as in a summons case. S.138(1) of the Code provides that if a person against whom an order under S.133 is made appears and show cause against the order, the Magistrate shall take evidence in the mater as in a summons case. Sub-ss.(2) and (3) of S.138 Cr.P.C. authorises the Magistrate to either make the order absolute with or without modification or drop further proceedings depending on the satisfaction of the Magistrate. 6. On a perusal of the files maintained by the Court below, the procedure mentioned above is not seen complied with. The file does not disclose that the Magistrate questioned the second respondent on his appearance before him as to whether he denies the existence of any public right in respect of the pathway. Pro visions contained in S.137 Cr.P.C. is mandatory. Violation of the procedure vitiates the entire proceedings. It is also seen that no statement by way of objection to the conditional order is filed by the second respondent. No evidence also is adduced by either parties in the matter as in a summons case. Final order was passed on the basis of the impression gathered by the Magistrate by the local inspection and also on hearing parties. The facts collected by the Magistrate at the time of local inspection could be made use of only for the purpose of appreciating the evidence adduced by parties. The Executive Magistrate did not take into account the civil suit pending between parties. 7. Having found that the procedure adopted by the Executive Magistrate is not in accordance with Ss.137 and 138 Cr.P.C., the entire proceedings is liable to be quashed and I do so. The impugned order is set aside. The case is remanded and the Executive Magistrate is directed to take back the case on file and proceed with the same in accordance with the provisions contained in Ss.137 and 138 Cr.P.C. and in the light of the observations made above. Final order should be passed within two months from the date of receipt of a copy of this order. 8. The impugned order was challenged before this court by filing the revision on 3.4.1998. Along with the revision Crl. M.P. No. 1448 of 1998 was filed with a prayer to restrain the second respondent from constructing a compound wall in Sy. No. 501/7 of Edava Village causing obstruction to the pathway. 8. The impugned order was challenged before this court by filing the revision on 3.4.1998. Along with the revision Crl. M.P. No. 1448 of 1998 was filed with a prayer to restrain the second respondent from constructing a compound wall in Sy. No. 501/7 of Edava Village causing obstruction to the pathway. The direction sought for was granted and the second respondent was restrained by an order not to construct the compound wall till 19.5.1998. The petitioner also filed Crl. M.P. No. 1449 of 1998 in which he prayed for stay of operation of the impugned order which was also granted by this Court as per order dated 15.4.1998. It is the complaint of the petitioner that the order has been violated and compound wall has been constructed by the second respondent on 16.4.1998 even though he was informed of the order of the Court. In the counter affidavit filed by the second respondent, he has stated that construction of the compound wall was over in February, 1998. The petitioner filed Cr.M.P. No. 1716 of 1998 in which he sought permission of the court to demolish the newly constructed compound wall in Sy. No. 501/7 of Edava village which is causing obstruction to the pathway in question. 9. Ongoing through the affidavits filed by either parties and also hearing counsel on both sides, I come to the conclusion that the compound wall was constructed after an order of stay and injunction passed by this Court. The order was also made known to the second respondent. That apart, when the impugned order is set aside, parties should be relegated to the original position and status quo of the date of the conditional order should be maintained. Hence, there will be a direction to the second respondent to demolish that part of the compound wall which is situated on the eastern side of their property to the extent it projects towards south at the south-eastern corner of their property confining the compound wall to the eastern side of Sy. No. 501/7 of Edava Village within two weeks from today. The Executive Magistrate and the Sub Inspector of Police, Varkala will see that this direction is complied with. After final order is passed in the proceedings initiated by the Executive Magistrate within the time prescribed by this Court, the parties will be governed by the final order. The Crl.R.P. is allowed as above. The Executive Magistrate and the Sub Inspector of Police, Varkala will see that this direction is complied with. After final order is passed in the proceedings initiated by the Executive Magistrate within the time prescribed by this Court, the parties will be governed by the final order. The Crl.R.P. is allowed as above. Transmit the records immediately.