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2021 Supreme(Online)(KER) 1807
HIGH COURT OF KERALA
Devan Ramachandran, J
RAMASWAMY PILLAI – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/5943/2020
V.T.RAGHUNATH, SMT.MANJU RAJAN, ALEXANDER GEORGE, ARCHANA JOHN, BRITTO RAJU, S.AJIRAJ, G.R.
Procedural fairness is essential in administrative actions taken under provisions of the CrPC concerning public pathways.
Headnote:
Construction - Public Pathway - CrPC Sections [133(1)(a), 137(1)] - The court addressed the legality of obstructive construction on a public pathway, interpreting Sections 133 and 137 of the CrPC to require due process and proper hearing before enforcement actions.
Fact of the Case:
The case involved two writ petitions regarding the legality of a construction obstructing a public pathway. One petitioner alleged obstruction for emergency access, while the other maintained that the pathway was private and the orders issued were improper.
Issues: Whether the RDO acted within jurisdiction and adhered to necessary legal procedures when issuing orders under Sections 133(1)(a) and 137(1) of the CrPC.
Ratio Decidendi: The court held that actions under Section 137(1) must follow a valid order under Section 133(1)(a) and require a hearing to ensure fairness and legal compliance.
Final Decision: The order of the RDO dated 26.06.2019 is set aside; the RDO must conduct a proper hearing and issue a new decision.
JUDGMENT
These two writ petitions have been heard together since they involve opposing but analogous factual circumstances and the reliefs sought for being entwined.
2. W.P(C)No.5943 of 2020 has been filed by Shri.Ramaswamy Pillai, alleging that the 3rd respondent - Shri.Gopinatha Pillai, has made a construction in the public pathway, thus obstructing the ingress and egress to his residential property. He says that the illegal construction is now impeding him from taking any vehicle through the pathway, thus causing irreparable prejudice, especially because he is suffering from various diseases and was unable to be taken to the hospital when such an emergency arose in the past. The petitioner says that he had, therefore, approached the jurisdictional Revenue Divisional Officer (RDO) with a complaint and that Ext.P6 order was issued by the said Authority under the provisions of Section
133(1)(a) of the Code of Criminal Procedure (CrPC).
3. Shri.Ramaswamy Pillai alleges that when, in spite of Ext.P6, no action was taken, he was constrained to make a complaint before the RDO, who thereafter, issued Ext.P8 order on 26.06.2019, under the provisions of Section 137 (1) of the CrPC, directing Shri.Gopinatha Pillai to remove the obstruction from the pathway forthwith. He accuses that even after Ext.P8 having been issued, no action has been taken by the competent Authority, though they have reported before this Court incorrectly that the obstructions have been removed.
4. While so, W.P(C)No.23998 of 2021 has been filed by Shri.Gopinathan Pillai, impugning the afore mentioned order dated 26.06.2019 issued by the RDO under Section 137 (1) of the CrPC and producing the same as Ext.P3 in this writ petition.
5. According to Shri.Gopinatha Pillai, the construction and the steps, as are revealed from Ext.P1 photograph, remain within his property and that Shri.Ramaswamy Pillai is attempting to widen a small pathway next to it, which is not a public one, but has been used him only by way of a prescription and nothing more. He submitted that since the alleged pathway next to his boundary is not a public one, the provisions of the CrPC cannot apply; and thus prayed that the impugned order be set aside.
6. I have heard Shri.Alexander George, learned counsel for the petitioner in W.P(C)N.23998 of 2021; Smt.Manju Rajan, learned counsel appearing for the petitioner in W.P(C)No.5943 of 2020 and Smt.K.Amminikutty, learned Senior Government Pleader appearing for the official respondents in both the cases.
7. Smt.Manju Rajan, learned counsel for Shri.Ramaswamy Pillai, reiteratingly said that the pathway in question is a public one and therefore, that the jurisdictional RDO was completely justified in having invoked the provisions of the CrPC. She relied up on Ext.P5 report of the Village Officer in substantiation and argued that since Shri.Gopinatha Pillai has not challenged the same until now, it has to be assumed that it contains accurate facts and figures, which would establish beyond doubt that the pathway in question is a public one and that its width has been attenuated by Shri.Gopinatha Pillai illegally.
8. In response, Shri.Alexander George, learned counsel appearing for Shri.Gopinatha Pillai, submitted that, as is evident from the first order issued by the RDO under Section 133 (1)(a) of the CrPC - which has been produced as Ext.P2 in W.P(C)No.23998 of 2021 and as Ext.P6 in W.P(C)No.5943 of 2020 – the RDO has only directed both parties to maintain status quo with respect to the pathway. He submitted that, therefore, a subsequent order under Section 137 (1) of the CrPC - which is produced as Ext.P3 in W.P(C)No.23998 of 2021 (Ext.P8 in W.P(C)No.5943 of 2020) - could not have been issued, because the powers under the said provision could have been invoked only where the first order under Section 133 (1)(a) of the CrPC had been violated. He reiteratingly argued that the initial order issued by the RDO was only directing his client to maintain status qu
