Mani Mathai and Others vs Uthuppu and Another

S. Padmanabhan, J.—Counter-petitioners 1 to 5 in M.C. 19 of 1981, on the file of the Sub Divisional Magistrate, Muvattupuzha, are the revision petitioners before me. On the application of the first respondent, the Sub Divisional Magistrate initiated proceedings under Sec. 133(1) of the Code of Criminal Procedure, here-in-after referred to as ''the Code''. The subject-matter of the proceedings is a pathway, which was claimed by the respondent to be a public pathway; but contended by the petitioners to be their private property. By the preliminary order, the revision petitioners were directed to remove the obstruction to the public pathway within a specified period or to appear and show cause why the order should not be enforced. Pursuant to that notice, the counter-petitioners (petitioners before this Court) entered appearance and filed written statement denying the existence of a public pathway. They have also filed a schedule of witnesses.

What the Magistrate had to do thereafter was to conduct a preliminary inquiry under Sec. 137 (1) of the Code. That is intended only for the purpose of deciding whether the denial of the public right is bona fide or not. Presumably in such an enquiry the Magistrate examined the first petitioner (1st respondent before the Magistrate) in part. Turn of events started then - In the box, first petitioner said he has no objection in the Magistrate having, a local inspection to settle the dispute. It is also seen that both sides put in writing that they have no objection in the matter being settled by the Magistrate conducting a local inspection. Contention of the petitioners is that such a suggestion did not originate from the parties and they only agreed to the suggestion that came from the Magistrate. That contention seems to be probable in the circumstances. The subsequent conduct of the Magistrate further probabilities that conclusion.

Even without completing the examination of the first petitioner and without allowing the petitioners to let in such further evidence for which they were ready, as is seen from the list of witnesses submitted by them, the Magistrate proceeded to have a local inspection for the purpose of his personal satisfaction whether there is a public pathway and whether it was obstructed as alleged. The circumstances indicate that he was convinced by local inspection that there was a public pathway and it was obstructed. Probably getting aware of his attitude after local inspection the revision petitioners (counter petitioners before the Magistrate) objected to such a course. That means the consent, if any, was withdrawn and they wanted to have the matter decided according to law. The Magistrate did not yield. He went under the impression that the parties have no right to recede from the consent or agreement which gave him jurisdiction to settle the matter. The objection was negatived and he issued the impugned order, the operative portion of which reads:

Since both the parties have given in writing that they will abide by the decision of this Court after making the site inspections, in the public interest, I hereby decide to make the order dated 5-6-1981 absolute. The counter petitioners are required to obey the order within 15 days. Issue notice to the counter petition is in Form No 21.

The correctness, legality or propriety of this order is under challenge, before me. I think the order has to go for various reasons. Under Ss. 133, 137 and 138, the Magistrate is only discharging a public duty cast on him by the statute. The object of the duty is abatement of public nuisance under circumstances specified therein. In order to invest the Magistrate with jurisdiction under those provisions, it is necessary that the conditions provided there in will have to exist. So also the procedure provided by the relevant provisions will have to be followed. Though what is sought to be prevented is public nuisance, the scope of the definition of public nuisance and its ambit according to the Indian Penal Code are not applicable to the provisions of Sec. 133 of the Code For the purpose of Section 133 of the Code, such a restricted scope of public nuisance is permitted by the relevant provisions. In order to invoke the provisions of Sec. 133, it is not necessary that the public at large should be affected. Even then the public duty is cast upon the Magistrate to avert something which the law treats as public nuisance. The provision is not intended to settle private disputes for which parties could seek appropriate forum. This provision cannot be allowed to be misused for wreaking individual vengeance also. It is the relevant provisions and not the consent of parties that give jurisdiction to the Magistrate. He will get jurisdiction to act under Sections 133, 137 and 138 only if various conditions provided therein are proved to exist and the various formalities according to the proceedings are followed. He is not an arbitrator, umpire or a mediated in a private dispute.

It is not the consent of the parties that give jurisdiction to the Magistrate. He gets jurisdiction only on the existence of certain proved circumstances and observance of certain procedural formalities. Since he is discharging a public duty the existence of the conditions and the observance of the formalities are necessary to invest him with power. By consent of parties he cannot assume powers which he is not otherwise having under the relevant provisions. So also there is no question of the parties being bound by what ever consent they have given before the Magistrate in order to estop them at a later stags from insisting that the Magistrate should observe the provisions of law and procedure.

Proceedings under Sec. 133 of the Code have three stages The first is a preliminary ex parte stage. At that stage what is required is the satisfaction of the Magistrate regarding the existence of conditions required for him to act under Sec. 133(1). That satisfaction could be had by several methods including a police report It is not necessary that any particular individual or individuals should set the law in motion. In most cases somebody may move the Magistrate and the may verify the information by a police report or otherwise. Anyhow, he must be satisfied that conditions exist to act under Sec. 133(1) It is on such satisfaction that he will be acting to issue the conditional order. The conditional order will be to obey the same within a specified time limit or to appear and show on a date at a place specified. When the person appears the Magistrate is bound to question him If the public right is not denied the Magistrate can straightaway proceed to have the inquiry under Sec. 238 and in such an inquiry the person against whom the preliminary conditional order and notice was issued and who did not appear and deny the public right will be precluded from doing so.

I have already mentioned that the stage before the conditional order is a preliminary ex parte stage. At this stage the Magistrate and perhaps the persons who set the law in motion alone may in the field. The person against whom the order is issued will be nowhere in the picture. Perhaps he may not be aware of the proceedings itself. The materials collected by the Magistrate at that stage is ex parte without observing the principles of natural justice. The person against whom the order is issued will not be having at that stage any opportunity to challenge the veracity of the materials or information. There is the added chance of the person who set the law in motion manipulating things to influence the satisfaction of the Magistrate. Therefore the materials collected at that stage could be used only for the satisfaction of the Magistrate at that stage. They cannot be used as evidence in the preliminary enquiry under Sec. 137 or the final inquiry under Sec. 138.

When the person against whom the conditional order was issued appears and denies the public right, it is imperative that the Magistrate should hold a preliminary inquiry under Sec. 137(1). That inquiry is summary in nature. The purpose of that inquiry is only to ascertain whether the denial of the public right is bona fide or not. The party who is entitled to let in evidence at that stage as of right is only the person who denied the public right. The evidence at that stage will not be to decide whether the public right is in existence or not. It is only for a satisfaction by the Magistrate whether there is any bona fides in the denial in order to decide whether he has to proceed to the next stage himself or whether the parties will have to be referred to a competent civil court. At that stage normally the Magistrate and the person who denied the public right alone will be in the picture. The person who set the law in motion may not as a matter of right be entitled to participate in the inquiry without the permission of the Magistrate. He may not have any right to lead evidence at that stage, If the Magistrate is satisfied from the evidence let in by the person who denied the public right that the denial is bona fide the jurisdiction of the Magistrate ceases. He will have then to stop the proceedings and refer the parties to a competent civil court That means in the case of a bona fide dispute regarding the existence or otherwise of a public right a competent civil court and not the Magistrate is the authority to settle the same This provision is also intended to avoid vexatious claims of private disputes being given the colour of public rights. Even when the Magistrate is satisfied of some right in favour of the person who set the law in motion, if it is seen to be a private dispute alone, then also the Magistrate''s jurisdiction is ousted because he is empowered only to avoid what is defined as public nuisance, even though in a restricted sense.

When the public right is denied the preliminary inquiry under Sec. 137(1) is a must. The Magistrate who is called upon to discharge a public duty in public interest cannot dispense with the formalities provided by law on the basis of consent of parties. When the law enjoins that something has to be done in a particular way especially when such a procedure is in public interest or to safeguard the interest of individuals the duty could be taken as properly performed only if that thing is done in that particular way. Otherwise the duty could only be taken as not discharged. The conduct of a preliminary inquiry under Sec 137(1) and the satisfaction that the denial of public right is not bona fide are mandatory conditions precedent for investing the Magistrate with jurisdiction to proceed to have the final inquiry under Sec 138 and pass orders under Sec. 138(2) confirming the conditional order as it is or with modifications. Otherwise the person against whom the preliminary conditional order is issued should not have appeared or denied the existence of the public right. After the conditional order and after the denial of the public right Magistrate can neither dispense with the preliminary inquiry under Sec 137(1) nor club the preliminary inquiry under Sec. 137(1) with the final inquiry under Sec. 138. In this case, after denial of the public right the Magistrate has not conducted a preliminary inquiry under Sec. 137(1) in order to satisfy himself whether there is or not reliable evidence in support of the denial of the existence of the public right. Such a procedure is definitely illegal.

In the decision in Ramakrishnan v. Musalikutty (1984 KLT 921). Fathima Beevi, J, observed:

Since the revision petitioner has denied the existence of the public right it was incumbent upon the Magistrate before proceeding u/s. 138 to enquire into the matter of the existence of the public right. Magistrate gets jurisdiction to proceed u/s 138 only on his finding that there is no reliable evidence in support of the denial of the existence of the public right, in a case where no inquiry into the matter of the existence of the public right is made and no finding regarding such existence is arrived at, the further proceedings u/s 138 would be without jurisdiction.

The only basis on which the Magistrate proceeded to decide the matter finally is the alleged authorization or consent from the parties. It is true that there is record to show that both sides agreed for a local inspection and for having the matter disposed of accordingly But consent of parties will not invest the Magistrate with a jurisdiction which he is not otherwise hiving. Even from the impugned order it is seen that after local Inspection, the petitioners before this Court expressed their objection to have the matter disposed of in the way in which the Magistrate proposed to have the decision. But the Magistrate was very much particular to enforce the consent of parties. He has not only dispensed with the inquiry under Sec. 137(1) relying on the alleged consent given by the parties, but even dispensed with an inquiry under Sec. 138 in order to pass a final order under Sec. 138(2). The impression gathered by him on the basis of local inspection was taken as substitute for the inquiry and evidence under Ss. 137(1) and 138. This is evidently illegal. The object of local inspection is not collection of evidence for disposal of proceedings pending before courts. If that be the object, it is enough for the disposal of matters pending before courts that Presiding Officers conduct local inspection every day. The object of local inspection is very much limited. Usually, local inspection is resorted to only sparingly and in extreme cases. Even when the local inspection is conducted the materials collected on the basis of local inspection will not and cannot be used as evidence in the case. They could only be used for the purpose of appreciating the evidence tendered by the parties. But in this particular case, local inspection was conducted for the purpose of deciding the disputed question whether the pathway in question is a public pathway and whether it was obstructed or not. The action of the Magistrate is highly irregular in this respect. In the decision in Ambi v. State of Kerala (1961 KLT 617) it was held:

The conditional order cannot be made absolute without the party (complainant) being called upon to substantiate the allegation which necessitated the passing of the conditional order by producing legal evidence - The court is not expected to bas" the decision solely upon the information gathered from a personal inspection of the locality which can merely aid the court in appreciating the evidence before it.

That position has further been emphasized in the decision in Narayana Shetty and others v. Varkey Antony (1971 KLT S.N. 16) wherein it was found:

The Court is not expected to base the decision solely upon the information gathered from a personal inspection of the locality which can merely aid the court in appreciating the evidence before it. The section can be invoked only where there has been an invasion of public rights.

It follows that the action of the Magistrate is wrong for more than one reason. In the first place, the impugned order was passed as if it is a final order and before passing such an order he has not decided whether there is reliable evidence in support of the denial of the existence of the public right or not. Secondly, he decided the question without allowing the counter petitioners before him to let in evidence establishing the genuineness of the denial of the public right. The information gathered by him during local inspection was wrongly used by him as substitute for legal evidence. Whenever local inspection is conducted, it will have to be with notice to the pant s. The Officer conducting local inspection will have to prepare a memorandum in which the details noted at the local inspection will have to be recorded. The parties are entitled to get copies of that memorandum in order to understand whether the facts were properly understood and collected by the officer. None of these formalities were complied with in this case. Therefore, the order under revision must necessarily go. It is also said that after issuing the final order, the Magistrate has also issued notice to the revision petitioners through, the Sub Inspector of Police, Koothattukulam directing them to comply with the order and warning them of consequences envisaged under the provisions of the Indian Penal Code. Anyhow, when the final order is set aside, the notice pursuant to that order also must go.

In the result, the impugned order is hereby set aside. That means that the parties are relegated to the position of the stage of the conditional order. The revision petitioners (counter petitioners before the Sub Divisional Magistrate) have filed written statement denying the existence of the public right. The Sub Divisional Magistrate will now proceed to conduct an enquiry as envisaged by Sec. 137(1) for the purpose of deciding whether there is reliable evidence in support of the denial of the existence of the public right or not. Further proceedings will depend upon the decision which the will take under Sec. 137(1) of the Code. The Sub Divisional Magistrate will try to dispose of the matter as expeditiously as possible.