Ayyaru vs The District Magistrate

A. Packiaraj, J.—This revision has been filed against the orders passed by the District Magistrate, Ariyalur in Na.Ka. No. D.1/3522/ 2001

dated 07.04.2001 u/s 138 Cr.P.C, directing the petitioner to remove the obstacles that cause nuisance in S. No. 80/2, 0.14.0 acres

,Azhagiyamanavalam Village, which is meant for public use.

The circumstances under which the impugned order came to be passed was that earlier by order dated 20.03.2001, the respondent had issued

a show cause notice, calling for an explanation from the petitioner as to why the obstacles erected by him in the path meant for public use be

removed at his cost. However, it appears the petitioner had not replied for the same and hence, the present impugned order has been passed.

The learned counsel for the petitioner would submit that the petitioner has not replied the show cause notice dated 20.03.2001, since the details

of the obstacles which caused nuisance to the movement of the public were not mentioned in it. It is also further submitted that the petitioner is in

possession of the land for a considerable length of time and there were no such allegations on earlier occasions that they obstructed or proved to

be obstacles to the public movement. But all of a sudden, in the year 2001, the impugned order was passed, which, according to the learned

counsel, was the result of some motive by parties with vested interest.

The learned counsel for the petitioner apologises for not having replied the show cause notice and prays that an opportunity may be given to

him, giving the details of the nuisance caused by him to the public movement.

I see considerable force in the argument of the learned counsel. It is certainly a mistake on the petitioner''s part in not having replied the show

cause notice. Even if it be bereft of materials, he ought to have obtained a clarification from the officer concerned. But the petitioner not asking for

such details would not absolve the responsibility of the officer concerned.

A reading of Section 133 Cr.P.C makes it clear that the officer concerned would be acting on the report of the police officer or other

information received by him, in which case he ought to have necessarily put forth the details of the information he received, so as to enable the

petitioner to explain in detail as to why such information or complaint has been given against him. Consequently, the order also should necessarily

pin point as to how or in what way the enjoyment of the petitioner acts as an obstacle to the public. In other words, a show cause notice should

contain all the details, mentioning about the obstructions or the obstacles and as to how they stand as an obstacle. Hence in the absence of any

such material mentioned either in the order passed u/s 133 Cr.P.C or in the final order passed u/s 138 Cr.P.C, which is the subject matter of this

revision, I am inclined to set aside the same and if the officer concerned finds that the obstacles are still there, he shall, in detail, issue notice to the

petitioner afresh, giving him an opportunity to explain. If the Magistrate is not satisfied with the explanation, he shall proceed with the enquiry, by

taking evidence and thereafter pass final orders. With this observations, the revision is allowed. Consequently, Crl.M.P. No. 3271 of 2001 is

closed.