The revision petitioner is aggrieved by an order passed by the Revenue Divisional Officer, Muvattupuzha on 5.11.2012 in the proceedings No.A14/8521/12. Finding that the impugned order does not contain any details indicating the provisions of law under which the Revenue Divisional Officer issued the said order, this Court directed the Revenue Divisional Officer to appear and submit written explanation as to how, or under what authority the impugned order was passed. Today, the Revenue Divisional Officer now in office appeared in Court and filed a statement indicating that the impugned order was passed as a provisional order under Section 133 Cr.P.C. Of course if it is an order passed under Section 133 Cr.P.C, as a provisional order, it cannot be challenged in revision. The aggrieved person will have to make appearance before the Revenue Divisional Officer as Executive Magistrate, make contest there, the Executive Magistrate will have to conduct a proper enquiry and record evidence as is done in a summons trial, and a final order will have to be passed by the Executive Magistrate. If the final order goes against him, the revision petitioner can come in revision before this Court or before the Court of Session. A provisional order as such is not revisable.
2. In fact a reading of the impugned order shows that the dispute relates to a private property. The first paragraph of the order indicates that the property in dispute is in the possession of an individual. The second paragraph of the order will also show that the property in question is in the actual possession of a husband and wife. If so, the Revenue Divisional Officer will have to consider whether he can act under Section 133 Cr.P.C. For an Executive Magistrate to act on a complaint under Section 133 Cr.P.C, the dispute must involve some public right relating to any public way, public water course, public nuisance etc. An Executive Magistrate cannot in any circumstance interfere in a private dispute or in a civil dispute, except as provided under the Code of Criminal Procedure, like cases covered by Section 145 Cr.P.C. Anyway, let the matter be properly enquired into by the Executive Magistrate, and let him examine whether he has power or authority to act under Section 133 Cr.P.C on the complaint before him in the above proceedings.
3. The learned counsel for the first respondent submits that the dispute in fact does not come under Section 133 Cr.P.C. If so he can very well make a proper application under the proper law, for the proper relief. If the Revenue Divisional Officer has powers to act on such a complaint, it will definitely be looked into by the Revenue Divisional Officer. The learned counsel also submits that the impugned order cannot be said to be an order passed under Section 133 Cr.P.C. But the present Revenue Divisional Officer says in his written explanation that it is an order passed under Section 133 Cr.P.C. Of course, the Revenue Divisional Officer will have to pass a proper final order. If the Executive Magistrate finds that the dispute raised in the complaint referred to above in fact comes under some other law dealing with removal or excavation of soil, the Revenue Divisional Officer can act, provided he is the right authority under that special law. In view of the above discussion this revision petition is dismissed without prejudice to the right of the parties to make appropriate applications for appropriate relief, as indicated above.
Sd/- P.UBAID JUDGE //True Copy// ab P.A to Judge