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THE SENIOR DIVISIONAL ENGINEER, RAILWAY v. THE SUB DIVISIONAL MAGISTRATE - OP No. 27692 of 2002(V)  RD-KL 15963 (17 August 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMOP No. 27692 of 2002(V)
1. THE SENIOR DIVISIONAL ENGINEER, RAILWAY
2. THE ASSISTANT DIVISIONAL ENGINEER,
1. THE SUB DIVISIONAL MAGISTRATE,
2. C.JAYASOORYAN, S/O.ANANDAN, AGED 33
3. NEW MAHE GRAMA PANCHAYATH, P.O.NEW MAHE
4. THE SUB-INSPECTOR OF POLICE,
For Petitioner :SRI.ALEXANDER THOMAS, SC,RAILWAYS
For Respondent :SRI.NAGARAJ NARAYANAN
The Hon'ble MR. Justice KURIAN JOSEPH
O R D E RKURIAN JOSEPH J. O.P. No.27692 of 2002 Dated 17th August, 2007.
J U D G M E N T
This writ petition is at the instance of the Railways. They are aggrieved by the proceedings initiated by the first respondent Sub Divisional Magistrate under Section 133 of the Code of Criminal Procedure, on Ext.P1 complaint filed by the second respondent. The second respondent filed Ext.P1 complaining of unlawful obstruction caused to the pathway allegedly used by the public. There is no dispute that the pathway is in the property of Railways. According to the Railways, they have planted the posts only to prevent encroachment upon the Railway property. The contention of the second respondent as well as the Panchayat is that there was pathway used by the public. It is seen that they have sought lease of the property from the Railways, as can be seen from Ext.P4. That request has been denied by Ext.P5. Thus there cannot be any dispute that the property is that of Railways. The jurisdictional pre-condition for exercise of power under Section 133 of the Code by the District Magistrate/Sub Divisional Magistrate is unlawful obstruction from OP NO. 27692/02 2 using a public place or any way which is to be lawfully used by the public. So long as there is no dispute that the property is that of Railways, in case the second respondent claims the use of the way, it is for them either to approach the Railways or seek the remedy before the civil court. In the absence of jurisdictional pre- condition for exercise of power under Section 133, the first respondent cannot initiate proceedings on Ext.P1 complaint. I quash Ext.P1 and the proceedings initiated by the first respondent on Ext.P1. The writ petition is disposed of as above.
KURIAN JOSEPH, JUDGE.tgs
KURIAN JOSEPH, J.O.P. NO. 27692 OF 2002
J U D G M E N T
Dated 17th August, 2007.
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