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2008 Supreme(Mad) 1393
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. CHANDRU
The Manager Kodanad Estate Kothagiri Taluk The Nilgiris District Rep. by R. Ravichandran
Versus
The Sub-Divisional Magistrate and the Assistant Collector Coonoor, Nilgiris District
Criminal Revision Case Nos. 1486 of 2007 and 1504 of 2007 and M.P. No. 1 to 3 of 2007 in respective Crl. R.Cs.
Decided on : 28-04-2008
For the Petitioner:B. Sriramulu, SC for A. Navaneethakrishnan, Advocate.
For the Respondent: G. Masilamani, AG for Babu Muthu Meeran, Addl.PP. For the Interveners: P. Wilson, ASGI.
The power under Section 133 Cr.P.C. can only be invoked in cases of imminent danger to public tranquillity or peace. When a valuable right of a property owner is at stake, the Magistrate should refer the matter for a Civil Court's decision under Section 137(2) Cr.P.C. and stay his own proceedings. The right to use a private road is a matter of contract between the owner of the road and the person using the road.
Headnote:
CRIMINAL REVISION - SECTION 133 CR.P.C. - PUBLIC NUISANCE - PRIVATE ROAD - RIGHT OF PASSAGE - EMERGENCY POWER - SCOPE AND SWEEP OF SECTION 133 CR.P.C. - PUBLIC PURPOSE - CONSTITUTIONAL ISSUES - FUNDAMENTAL RIGHTS - MONTESQUIEU DOCTRINE - SEPARATION OF POWERS - PRIVATE PROPERTY - PUBLIC FUNCTION - REASONABLE RESTRICTION - IMMINENT DANGER - JURISDICTION OF CIVIL COURT - STAY OF PROCEEDINGS - DISCRETION OF MAGISTRATE - ABUSE OF PROCESS - MALA FIDES - PERMISSIVE USAGE - LICENCE - TOLL COLLECTION - LAND ACQUISITION - PUBLIC DEMAND - EQUITY AND JUSTICE - FUNDAMENTAL RIGHT TO USE PRIVATE ROAD - QUASHING OF ORDERS.
Fact of the Case:
The petitioners, Kodanad Estate, represented by its Manager, filed Criminal Revision Petitions challenging the order passed by the Sub-Divisional Magistrate [SDM], Coonoor, under Section 141(1) Cr.P.C. and the final order passed by the SDM in a petition filed by the residents of two hamlets seeking a permanent solution to the issue of denial of vehicle transport to their village through the Estate road. The petitioners claimed that the service road situated inside the Kodanad limits was a patta land belonging to the estate and that restrictions were imposed on the vehicles plying through the road, which could only be done after getting written permission of the Estate Management and after paying a small fee as toll charges. The residents of the two hamlets petitioned the Kodanad Panchayat for finding a permanent solution to the problem, leading to the passing of a resolution by the Grama Sabha requesting the Government to acquire the road and entrust the same to the Panchayat. The SDM, acting on the representations received from the public and the Grama Sabha resolution, invoked his power under Section 133 Cr.P.C. and issued an order directing the petitioners to remove the obstruction in the detailed road within 15 days. The petitioners challenged the SDM's order, contending that the road was a private property and that the invocation of Section 133 Cr.P.C. was vexatious and an abuse of process of law. The SDM, however, confirmed the earlier order and issued a consequential order under Section 141 Cr.P.C. to remove the obstruction within 24 hours.
Finding of the Court:
The High Court held that the SDM's order under Section 133 Cr.P.C. was unsustainable and liable to be quashed. The Court found that there was no imminent danger to public tranquillity or peace and that the complaint made by the local people was only a petition to the State to acquire the property. The Court held that the SDM should have referred the matter for a Civil Court's decision under Section 137(2) Cr.P.C. and stayed his own proceedings, considering that the valuable right of a property owner was at stake. The Court also rejected the Intervenors' prayer that the gates should be kept open by the orders of the Court, holding that such a right was not available as against a private establishment.
Issues: 1. Whether the SDM was justified in invoking his power under Section 133 Cr.P.C. to remove the obstruction in the Estate road, which was a private property? 2. Whether the SDM should have referred the matter for a Civil Court's decision under Section 137(2) Cr.P.C. and stayed his own proceedings? 3. Whether the Intervenors had a fundamental right to use the private road?
Ratio Decidendi: 1. The power under Section 133 Cr.P.C. can only be invoked in cases of imminent danger to public tranquillity or peace. In the present case, there was no such imminent danger and the complaint made by the local people was only a petition to the State to acquire the property. Therefore, the SDM was not justified in invoking his power under Section 133 Cr.P.C. 2. When a valuable right of a property owner is at stake, the Magistrate should refer the matter for a Civil Court's decision under Section 137(2) Cr.P.C. and stay his own proceedings. In the present case, the SDM failed to do so, which was an error of law. 3. The Intervenors did not have a fundamental right to use the private road. The right to use a private road is a matter of contract between the owner of the road and the person using the road.
Final Decision: The High Court allowed both the Criminal Revision Petitions and quashed the orders of the SDM dated 08.08.2007 and 20.09.2007. The Court also dismissed the connected Miscellaneous Petitions.
Common Order: Heard the arguments of Mr. B. Sriramulu, learned Senior Counsel representing Mr. A. Navaneethakrishnan for the petitioner, Mr. G. Masilamani, learned Advocate General leading Mr. Babu Muthu Meeran, Additional Public Prosecutor and Mr. P. Wilson, learned Assistant Solicitor General of India appearing for the Interveners and have perused the records.
2. The petitioner Kodanad Estate, which is having Tea Plantations, represented by its Manager, has filed the present Criminal Revision Petitions challenging the order passed by the Sub-Divisional Magistrate [for short, SDM], Coonoor. While Crl. R.C. No. 1486 of 2007 challenges the notice issued under Section 141 (1) Cr.P.C. dated 20.9.2007 issued pursuant to the order dated 20.9.2007 in Petition No. 1 of 2007 and Crl. R.C. No. 1504 of 2007 challenges the final order dated 20.9.1997 passed by the SDM in Petition No. 1 of 2007.
3. At the time of admission of the Criminal Revision Petitions, an order of status quo was granted starting from 29. 2007 which was thereafter extended from time to time. Subsequently, on 211. 2007, the interim order was extended until further orders.
4. Backdrop:-
1. There are around 179 families living in the hamlets known as Kamaraj Nagar and Anna Nagar situated in one side of the Kodanad Estate. It is claimed that those hamlets are in existence for over four decades and the only passage by which they can have access to the outside world was taking the service road situated inside the Kodanad Estate. Admittedly, the service road is situated within the Kodanad limits and it is a patta land belonging to the estate. Over the years, the residents of the two hamlets were allowed to go through the road running through the Estate for a length of 2.5 Kms. approximately.
2. However, restrictions were imposed on the vehicles plying through the road and that can be done only after getting written permission of the Estate Management and after paying a small fee as toll charges. For various security and other reasons, the gates situated at both ends of the road were closed during the night. It is seen that such collection of toll charges from the vehicles passing through the Estate was taking place for the last one decade. A gate pass marked as Ex. A.9 series before the respondent SDM shows the first gate pass having 29. 1997 as its date of issue.
3. It transpires that the people of the two hamlets were irked over the delay in getting the gate pass for taking the vehicle and also the closure of gates during night time which was creating difficulties in case of travel for medical exigencies. They petitioned to the Kodanad Panchayat for finding permanent solution to the problem. Therefore, lead by a Ward Councilor of the Vth Ward, by name, S. Kavitha, through a letter dated 27. 2007, (marked as Ex. A.3 by the SDM) and also signed by several other people, they petitioned to the President of the Grama Sabha. In the subject column of the petition, it was stated that the petition was regarding the denial of vehicle transport to their village through the Estate road. In the prayer portion of the petition, it was stated that earlier it was free toll and that obtaining permission has become difficult and time consuming and, therefore, the Grama Sabha should find a permanent solution to the issue so as to enable the villagers to travel in their vehicles through the Estate Road.
4. The meeting of the Grama Sabha of the Pedugalmandhu village was convened on 27. 2007 itself and a resolution was also stated to have been passed in the said meeting. The agenda of the meeting was stated to consider the representation received from the residents of the Anna Nagar and Kamaraj Nagar hamlets and also to decide the issue relating to setting up of the gates by the Kodanad Estate Management and preventing the people from travelling in their vehicles and to consider the complaint in public interest and to petition the District Collector. (This agenda was marked as Ex
