Mani Nair vs The Revenue Divisional Officer/Sub Divisional Magistrate Fort Kochi-682001, Babu Chirackal House, Asokapuram, Aluva 683101 and Thankamani

Justice S.S. Satheesachandran

Petitioner is the respondent in a proceeding u/s 133 of the Code of Criminal Procedure, for short, ''the Code''. That proceeding has arisen on complaints made by party respondents and information placed before Sub Divisional Magistrate, over alleged obstruction to a public way situate close to the property of the aforesaid party respondents. Petitioner who was issued with notice to remove the alleged obstruction with direction to show-cause why that order should not be made absolute appeared and filed a written objection, in which among other contentions public right claimed over the alleged pathway was denied. Even the existence of pathway was disputed by the petitioner. Reference was also made to a civil suit and adjudication made touching upon the claim set up over the pathway and of further challenges raised from the decree passed by the Civil Court pending before This Court. While enquiry on the question of denial of public right by the petitioner remained to be concluded it is stated that some steps were taken by the Revenue Divisional Officer to measure out the properties with the assistance of survey authorities. That led to some proceedings before This Court and the steps taken for measurement of the properties were set at not the direction to Sub Divisional Magistrate to complete the proceedings in accordance with law. Even now proceedings are pending before Sub Divisional Magistrate with the question of denial of public right canvassed by the petitioner still to be answered, is the submission of the counsel for petitioners. Petitioner has produced with his objections certain documentary evidence in support of his denial of public right to show that it is bonafide. He is mainly banking upon the decree passed by civil court, is the submission of the Learned Counsel for the petitioner. The writ petition, according to the counsel, has been necessitated since during the course of hearing the Sub Divisional Magistrate has expressed some views over the acceptability and reliability of the decree passed by the Civil Court. The apprehension, if any, arising on the basis of expression made by the Sub Divisional Magistrate cannot by itself be a ground to file a writ petition before This Court to seek for issue of a direction or order as canvassed of. After hearing counsel on both sides and also the Government Pleader, and also taking note of the undisputed facts that at the present stage proceeding call for a decision by Sub Divisional Magistrate only on the question whether denial of public right canvassed by the petitioner is bonafide in as much as whether he has placed reliable evidence in support of such denial, that alone has to be examined by the magistrate how to pass appropriate orders thereof as stated u/s 137(2) of the Code. Subject to orders to be passed thereof, the magistrate has to decide over the continuance or not of the proceedings.

Subject to the above observations, the writ petition is dismissed.