Augusthy v. Varkey & Others

1. This is a fourth round litigation, arising under Chapter X of the Code, centering, around right to a pathway. Three petitions that preceded, are Crl. M.C Nos. 954/84. 252/85 & 341/85, filed by petitioner in Crl. R.P 492/88. He challenges, an order of the Sub Divisional Magistrate, Devikolam in M.C 8/84 made under section 135 of the Code of Criminal Procedure declaring a 4 feet pathway in his property, as a public pathway. Petitioners in Crl. R.P 857/88 (1st & 2nd respondents in Crl. R.P 492/88) challenge the same order, seeking to widen it by a declaration that the aforesaid pathway is 8 feet wide. Since the issues raised are common, the two petitions are disposed of by a common order and parties are referred to, by their description and rank in Crl. R.P 492/88. Petitioner is the owner of about 38 acres of land in Sy. No. 1/1 (Sub Division 3060 and 3189) of Konnathady village. 1st respondent brother of petitioner is the owner of adjoining property. Admittedly, there was a pathway through the property of petitioner, but it was only 2 feet wide, according to him. According to respondents, it was 8 feet wide, and is part of a 2 Km. long pathway, along a mountain terrain. Complaining of obstruction by petitioner, 1st & 2nd respondents moved the Sub Divisional Magistrate and the magistrate took cognisance of the matter, on the basis of a report from the Circle Inspector of Police that the pathway was obstructed by petitioner by constructing stone wall and raising cultivation. Aa interim order was passed by the magistrate under section 142 of the Code. This was challenged in Crl. M.C 954/84.

2. By order dated 15-2-85, a learned Judge of this court directed petitioner to keep a 2 feet wide pathway open, observing:

“It is therefore, directed that he has no right to obstruct atleast that part of the pathway …… If there is any obstruction caused to the pathway that will, be removed by petitioner within a week from today, failing which the Village Officer if necessary with the help of police will remove the obstruction……….It is for the magistrate to pass orders on the merits. ………………. If the parties think that it is better that all the questions raised can be settled before the civil court, it will be open for any of. them to take appropriate action……………….Parties shall not commit breach of peace…………”

3. The matter then went back to the magistrate. On 22-3-85, the magistrate passed an order restraining petitioner from ‘blocking or causing any injury to the already existing footpath through his land until final disposal of the case’. This order was passed, presumably to ensure what this court had already directed. Petitioner then moved Crl. M.C 252/85 challenging the aforesaid order dated 22-3-85. That order was not an Annexure to Crl. M.C 252/85. Annexure IV thereto, is a letter from his counsel to petitioner, which describes the order in a manner not very precise. Probably, the impugned order was separately produced.

4. Crl. M.C 341/85 also was filed in the meanwhile by petitioner. The details of the petition are not known, In the present petition, I should have expected petitioner to produce copies of the earlier orders. They are not produced and the pleadings are extremely vague. It is also seen that petitioner had approached the civil court by O.S 122/84 in the meanwhile.

5. By a common order, dated 21-6-85 a learned Judge of this court dismissed Crl. M.C 252 & 341 of 1985, observing:

“He (petitioner) appears to have destroyed the old pathway for which parties were contending and put up a new pathway. Now, he wants 1st respondent and others to use that pathway. ………Sub Divisional Magistrate was acting well within his limits. …………It is represented by counsel by 1st respondent that after getting an ex-parte stay in Crl. M.C 341/85, petitioner has again obstructed the pathway. It is for the Sub Divisional Magistrate to go into this aspect of the matter and pass appropriate orders”.

6. Thereafter, the magistrate examined witnesses including the Village Officer, considered the report of the Circle Inspector and Village Officer, Exts. C1, C2 & C2(a) and came to the conclusion that there was a 4 feet wide public pathway through the petitioner's property and directed him to remove the obstruction. This order is under challenge.

7. Admittedly, there is a mountain pathway and part of it passes through petitioner's property. He would say, the width is only 2 feet. Admission regarding existence of that pathway was noticed by the Sub Divisional Magistrate and also by this court. The clear direction in Crl. M.C 954/84, was that petitioner should not obstruct ‘atleast that part of the pathway’. Presumably, obstruction continued and that led to the order of the Sub Divisional Magistrate dated 22-3-85 challenged in Crl. M.C 252/85. Dismissing Crl. M.C 252/85 and Crl. M.C 341/85, a learned judge of this court found that the Sub Divisional Magistrate was acting within his jurisdiction and within the area conceded to him in Crl. M.C 954/84. As directed by this court the Magistrate considened the matter in detail, found that the denial of public right was not established and found that there was a ‘public pathway’ of 4 feet width. Perusel of the records of proceedings reveals that the finding was based on evidence. The documents relied on by the magistrate justify his conclusion. The findings are not vitiated by any illegality, irregularity or impropriety.

8. Scope of proceedings under Chapter X of the Code must be appreciated in this centext. Provisions of the Chapter relate to maintanance of public order and tranquility. They are basically designed to ensure that breach of peace is not occasioned, owing to disputes. Orders under the Chapter are in the nature of police orders, intended to prevent breach of peace. An elaborate adjudicatory process of rights is not envisioned by the Chapter. That is the function of civil courts. But, till such time as adjudication is made by civil courts, following an elaborate procedure public order must be preserved and tranquility maintained, by preventing breach of peace. For this purpose, a summary procedure is evolved and the Executive magistrate whose responsibility it is, to prevent breach of peace, most bold a summary enquiry before he acts. True, under the guise of exercising that power, magistrate should not adjudicate civil rights or settle private disputes. But, subtle niceties, more assumed, than real cannot be introduced in this area, whittling down the efficacy of provisions, intended to maintain order. When a civil court decides the issue, it displaces orders of the criminal court (see Bhiak v. Charan Singh - AIR 1959 S.C 960).

9. Petitioner contends that there can be no public right over a private property and therefore that the order cannot be sustained The specious argument cannot be supported on principle or precedent. Petitioners's argument carried to its logical conclusions, would mean that sections 132 to 138 of the Code are limited in their operation only to place dedicated to public. Section 133 refers to the power in a magistrate to remove obstruction or nuisance if he considers fit.

“from any public place or from any way river or channel which is or may be lawfully used by the public”.

10. The distinct expressions ‘public place’ & any way clearly illustrate, that the section comprehends not only public places, but “any way” which may be lawfully used by the public. Lawful use by the public of “any way” would bring it within the ambit of the section. As stated in Ramjank Patwa… v. Emperor…Opposite Party. (AIR 1937 Patna 276) a private place may be frequented by public and may become a public place for the time it is used That apart, “public place” for purposes of the section, is not restricted to a place dedicated to public. The expression ‘public’ or ‘public place’ has been understood in a larger sense. In R. v. Wellard ((1884) 14 Q.B.D 65), a place was understood as:

“a place where the public go, no matter whether they have a right to go or not”.

11. The decision in R. v. Wellard has been approved in a long catina of decisions by Indian courts. In State v. Scaria (1966 KLT 780), this court held that public place need not be public property. It would be a public place, if public could resort to that. In Re Muthuswamy Iyer (AIR 1937 Mad. 286), the court held that a place where public are in the habit of going, is a public place. Decisions in Deepa v. Sub-Inspector (1986 KLT 158) and Chacko v. Mariakutty (1987 (1) KLT 52) also take a similar view. In Black's Law Dictionary, a public place is understood as:

Public place. A place to which the general public has a right to resort, not necessarily a place devoted solely to the uses of the public, but a place which is in point of fact public rather than private, a place visited by many, persons and usually accessible to the neighbouring public (e.g a park or public beach). Also, a place in which the public has an interest as affecting the safety, health, morals, and welfare of the community. A place exposed to the public, and where the public gather together or pass to and fro.

12. A public passage is:

Public passage. A right, subsisting in the public, to pass over a body of water, whether the land under it be public or owned by a private person. This term is anonymous with public highway, with this difference, by the latter is understood a right to pass over the land of another, by the former is meant the right of going over the water which is on another's land.

13. If public have access to a place by right, permission or use, it is a public place, even if it is not public property. One test of ascertaining this, will be to see whether there is a right vested in a large number of persons as to make them unascertainable and make them a class - unascertainable not by vastness of numbers, but by character of class. So viewed, the mountain road part of which runs through the petitioner's private property, is a public path to which unascertained number of people make report. The decision in C.V Muthuvelappan v. K.V.N Nair (AIR 1964 Ker. 252) relied on by counsel for petitioner is of no assistance in deciding the question raised in this case. Question for consideration therein related to riparian rights Riparian right is a right enuring to ascertained riparian users, and thus is a right more in the nature of a right in personam. What is part of a larger pathway, and what is found to be resorted to by public in general (part of it admittedly is a pathway, according to petitioner) is a public pathway amenable to Section 133. As noticed before, the finding of fact was arrived at on good material. No grounds are made out for interference. In Narayan Tiwary v. State of W.B AIR 1954 S.C 726), the Supreme Court held, where the trial magistrate had dealt with the matter fully on evidence, High Court would be right in declining to interfere with the finding in revision. The case on hand, is such. Proceedings under Chapter I have been stretched as far as possible, without moving the civil court. Crl. R.P 492/88 is without merit. Not different is the position with Crl. R.P 657/88, where the attempt is to widen the scope of the order, without any basis therefor. The revision petitions fail and are accordingly dismissed. I express appreciation of help, rendered by Sr. N.P Samuel as Amicus Curiae.