Kerala High Court
Sajeev Kumar M.R vs The Sub Divisional Magistrate on 14 February, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 15TH DAY OF JANUARY 2018 / 25TH POUSHA, 1939
WP(C).No. 428 of 2017
PETITIONER(S):
1 SAJEEV KUMAR M.R.,
MUNDAKKAL HOUSE, ERAMALLOOR,
CHERTHALA-688 537
2 PURUSHOTHAMAN,
SAVITRI NILAYAM, ERAMALLOOR,
CHERTHALA -688 537
3 V.RAVEENDRAN,
CHERUVALLITHARA, ERAMALLOOR,
CHERTHALA -688 537
BY ADVS.SRI.P.V.JAYACHANDRAN
SRI.E.B.SHIVANANDAN
SRI.NIDHI BALACHANDRAN
SMT.G.N.DEEPA
SRI.MANOJ B.MENON
RESPONDENT(S):
1. THE SUB DIVISIONAL MAGISTRATE,
ALAPPUZHA -688 101
2. THE TAHASILDAR,
TALUK OFFICE, CHERTHALA -688 501
3. OMANAKUTTY AMMA,
THAMARAPPALLIL,
ERAMALLOR, CHERTHALA -688 537
4. JAYASREE,
THAMARAPPALLIL, ERAMALLOOR,CHERTHALA-688 537
5. SURESH,
THAMARAPPALLIL, ERAMALLOR, CHERTHALA-688 537
R1 & R2 BY SR GOVERNMENT PLEADER SRI.M.R.SABU
R3 & R4 BY ADV. SRI.S.B.PREMACHANDRA PRABHU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 15-01-2018,THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
sts
WP(C).No. 428 of 2017 (C)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PETITION DATED 14/02/2005 FILED
BY THE PETITIONER AND OTHERS U/S 133 OF THE CR.P.C
EXHIBIT P2 TRUE COPY OF THE REPORT OF THE TAHASILDAR TO THE REVENUE
DIVISIONAL OFFICER
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 11/1/2006 ISSUED BY
THE SUB DIVISIONAL MAGISTRATE
EXHIBIT P4 TRUE COPY OF THE COMMON JUDGMENT OF THIS
HON'BLE COURT DATED 20-08-2007 IN W.P(C) NO.34330
OF 2005 AND CRL.RP NO.2604 OF 2006
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 20/2/2008 ISSUED BY
THE SUB DIVISIONAL MAGISTRATE,ALAPPUZHA
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 16/7/08 OF THIS
HON'BLE COURT IN CRL RP 1687/08 & CONNECTED CASES
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 1/9/08 ISSUED BY THE
SUB DIVISIONAL MAGISTRATE,ALAPPUZHA
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 10/9/09 ISSUED BY
THE SUB DIVISIONAL MAGISTRATE, ALAPPUZHA
EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 14/12/2009 IN
CRL MC 3713/09 OF THIS HON'BLE COURT
EXHIBIT P10 TRUE COPY OF THE ORDER DATED 9/6/10 ISSUED BY THE
SUB DIVISIONAL MAGISTRATE, ALAPPUZHA
EXHIBIT P11 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
COURT DATED 27/10/10 IN CR RP 2089/10
EXHIBIT P12 TRUE COPY OF THE ORDER DATED 18/2/14 IN SLP (CRL)
NO.10471/10 OF THE HON'BLE SUPREME COURT
EXHIBIT P13 TRUE COPY OF THE PETITION DATED 10/3/14 SUBMITTED
BY THE PETITIONER AND OTHERS BEFORE THE SUB
DIVISIONAL MAGISTRATE, ALAPPUZHA
EXHIBIT P14 TRUE COPY OF THE COMMUNICATION DATED 5/5/14
ISSUED BY THE SUB COLLECTOR, ALAPPUZHA TO THE
PETITIONER
2/-
-2-
WP(C).No. 428 of 2017 )
EXHIBIT P15 TRUE COPY OF THE COMMUNICATION DATED 22-11-2014
ISSUED BY THE 2ND RESPONDENT.
RESPONDENT'S EXHIBITS:
EXHIBIT R3(A) TRUE COPY OF THE MEMO DATED 23/7/2014 ISSUED BY THE 1ST
RESPONDENT
EXHIBIT R3(B) TRUE COPY OF THE MEMO DATED 18/11/2014 FILED BEFORE THE
1ST RESPONDENT.
EXHIBIT R3(C) TRUE COPY OF THE REPORT DATED 22/11/2014 FILED BY THE
2ND RESPONDENT.
/TRUE COPY/
P.S.TO JUDGE
sts
SHAJI P. CHALY, J.
--------------------------------------------------
W.P.(C) No.428 of 2017
-----------------------------------------------
Dated this the 15th day of January, 2018
JUDGMENT
This writ petition is filed by the petitioners seeking direction to the 1st respondent to restore the 12 links public pathway leading from the National Highway and ending at Laksham Veedu Colony, scheduled in Ext.P2 order passed by the 2nd respondent dated 01.03.2005. Material facts for the disposal of the writ petition are as follows:
2. Petitioners are the residents of a common locality, who approached the 1st respondent, Sub Divisional Magistrate, Alappuzha by filing a petition under Sec.133 of the Code of Criminal Procedure, alleging that respondents 3 to 5 and others interfered with the right to public pathway having a width of 12 links, evident from Ext.P1.
3. Pursuant to Ext.P1, 2nd respondent, Tahasildar, conducted an enquiry and concluded that there are encroachments to the public pathway and submitted his report annexing the sketch of the public pathway, to the 1st respondent RDO, evident from Ext.P2. Respondents 3 to 5 W.P.(C) No.428 of 2017 2 contended that, there is no public pathway as alleged. After evaluating the situation, the 1st respondent dismissed the petition, directing the petitioners to approach the competent civil court, evident from Ext.P3 order. Being aggrieved by Ext.P3, petitioners along with others, approached this Court by filing W.P.(C) No.34330 of 2005 and Crl.R.P.No.2604 of 2006, which was disposed of as per Ext.P4 common judgment dated 20.08.2007, directing the 1st respondent to proceed on Ext.P1 complaint, in accordance with law.
4. Subsequently, 1st respondent passed Ext.P5 order dated 20.02.2008, reiterating the earlier stand in Ext.P3 order, evident from Ext.P5. Against the said order, petitioners and others preferred Crl.R.P.No.1687 of 2008, contending that, Ext.P5 order is passed against the directions contained in Ext.P4 common judgment. A contempt case was also preferred as COC (C) No.605 of 2008. However, in view of the unconditional apology tendered by the Sub Divisional Magistrate, the contempt case was closed. However, Ext.P5 order passed by the 1st respondent was set aside, and directed the 1st respondent to pass conditional order within two weeks from the date of receipt of a copy of the judgment, evident W.P.(C) No.428 of 2017 3 from Ext.P6.
5. In pursuance of Ext.P6 order, 1st respondent issued an order dated 01.09.2008, finding that, there is encroachment by some of the adjacent owners/respondents 3 to 5 therein, and therefore, the adjacent owners were directed to demolish the encroachment, evident from Ext.P7 order.
Respondents 3 to 5 appeared before the Sub Divisional Magistrate and produced a civil court order, by which, the petitioners and others were restrained from widening the pathway. They also filed a stay petition with a prayer that the proceedings initiated under Section 133 by the Sub Divisional Magistrate may be deferred till the decision of the civil court in O.S.No.702 of 2007. After hearing the parties concerned, 1st respondent issued Ext.P8 order dated 10.09.2009, and declined the request for staying the proceedings.
6. Aggrieved by Ext.P8 order, respondents 3 to 5 and another approached this Court by filing Crl.M.C.No.3713 of 2009 under Sec.482 of the Cr.P.C, seeking to quash Ext.P8 order, and to direct the Sub Divisional Magistrate to stay the proceedings till the disposal of O.S.No.702 of 2007, and secured Ext.P9 judgment dated 14.12.2009. As per Ext.P9, it W.P.(C) No.428 of 2017 4 was observed that, if the petitioners therein deny the public right, the Sub Divisional Magistrate should conduct an enquiry as provided under Sec.137(1) of the Cr.P.C to find out whether, even without an application filed by the petitioners, the officer is bound to stay the proceedings till such time the matter is decided by a competent court.
7. In the light of the directions contained in Ext.P9 order, the 1st respondent issued Ext.P10 order dated 09.06.2010, holding that the petitioners and others have the right to get the pathway extended to 12 links and the arguments of respondents 3 to 5 who encroached the public pathway are not supported by any reliable evidence. Thus, the preliminary order issued on 01.09.2008 is made absolute as per Sec.138 of the Cr.P.C.
8. Aggrieved by Ext.P10 order, respondents 3 to 5 approached this Court by filing Crl.R.P.No.2089 of 2010 and this Court has passed Ext.P11 order dated 27.10.2010, holding that the existence of the public pathway was taken note of by this Court in its earlier two orders passed, and directed the Magistrate to issue a memo to the encroachers, on securing copy of the order, directing the obstructors to comply with the W.P.(C) No.428 of 2017 5 order within one month from the date of receipt of such memo, and if there is any failure to comply with the order of the Magistrate, it is for the Magistrate to take appropriate steps to implement the order. Thereupon, respondents 3 to 5 approached the Supreme Court against Ext.P11 order, however, the Special Leave Petition was dismissed as per Ext.P12 order dated 18.02.2014.
9. Petitioners thereupon filed a petition dated 10.03.2014 before the 1st respondent, requesting to implement Ext.P10 order after taking into consideration the time limit prescribed by this Court, evident from Ext.P13. As per Ext.P14, 1st respondent informed the petitioners that the certified copy of the judgment/orders are not received through proper channel.
10. Matters being so, 2nd respondent by Ext.P15 communication dated 22.11.2014 informed that respondents 3 to 5 set apart 12 links wide pathway on the southern side of the property, which was not the public pathway scheduled in Exts.P1 and P10. According to the petitioners, the pathway now set apart by the respondents 3 to 5 is not the public pathway sketched and scheduled in Ext.P2, which culminated W.P.(C) No.428 of 2017 6 in Ext.P10 order, and ordered to be restored as per Ext.P11 order. It is thus seeking appropriate directions to restore the original pathway, this writ petition is filed.
11. Respondents 3 to 5 have filed a detailed counter affidavit, disputing the allegations and claims and demands raised by the petitioners. According to the said respondents, in Ext.P4 judgment, it is categorically held that the pathway should have a width of 12 links and the said pathway should be aligned in such a way to minimize the inconvenience, if any, experienced by the respondents in the enjoyment of the adjacent property. Even from Ext.P2 report and sketch, it is clear that the pathway was lying along the southern and eastern boundary of the property of the said respondents. However, the contention of the said respondents was that the pathway is having only width of 6 links, and it is a private pathway. But, it was held that the width of the pathway should be 12 links, and there is no finding or direction that the lie and position of the pathway should be changed.
12. So also, in the final order passed by the 1st respondent, the direction is to get the width of the existing pathway extended to 12 links from 6 links. Therefore, it is W.P.(C) No.428 of 2017 7 clear that the existing pathway was directed to be widened and not a creation of a new pathway. In Ext.P10 order also, there is no other finding or direction and the petitioners were granted one month's time to comply with the direction issued by the 1st respondent.
13. The 1st respondent issued Ext.R3(a) memo dated 23.07.2014, directing the respondents to comply with Ext.P10 order within 30 days. Accordingly, the respondents complied with the order by increasing the width of the pathway to 12 links in the presence of the petitioners and respondents 1 and
2. Thereafter, the Village Officer came to the property for inspection and enquired whether the respondents have complied with the order. Hence, the respondents submitted Ext.R3(b) memo before the 1st respondent conveying that they have complied with the directions and the pathway has been widened along the southern and eastern boundaries of their property. The other contentions raised in the writ petition with respect to non-compliance of Ext.P10 order passed by the RDO, and the directions issued by this Court in its judgments/orders referred to above are all denied by respondents 3 to 5. It is also contended that the intention of W.P.(C) No.428 of 2017 8 the petitioners is only to harass the respondents. Respondents 3 to 5 have also produced Ext.R3(c) along with I.A.No.20925 of 2017 issued by the 2nd respondent dated 22.11.2014, wherein, it is stated that the party respondents have provided a 12 links way for the use of the petitioners and others. It is also recited therein that, the width of the way was increased in the presence of the petitioners and as directed in Ext.P10 order of the 1st respondent dated 09.06.2010.
14. I have heard learned counsel for the petitioners, learned Senior Government Pleader and the learned counsel appearing for respondents 3 to 5. Perused the documents on record and the pleadings put forth by the respective parties.
15. The discussions made above would make it clear that, the question to be considered is, whether any manner of interference is warranted as sought for by the petitioners, on the basis of Ext.P10 order passed by the 1st respondent, and whether there is any violation of the directions issued by this Court in its various judgments/orders discussed above.
16. I have gone through Ext.P2 report of the 2nd respondent dated 01.03.2005, wherein, it is stated that the way having a length of 39 mts. and 6 links width was modified W.P.(C) No.428 of 2017 9 and 12 links width was provided in the presence of the Additional Tahsildar on 16.10.2004. However, barricade was created and the way was reduced to 1.50 mts. width. Furthermore, in Ext.P4 common judgment delivered by this Court dated 20.08.2007, it is held that, it shall be open to the parties to agree for a convenient alignment of the pathway ensuring 12 links width with a view to minimise the inconvenience, if any, experienced by respondents 3 to 5 in the enjoyment of their adjacent property. Therefore, it is clear that, liberty was given to the respondents to provide a convenient way so as to avoid any inconveniences. Ext.P4 judgment has become final and conclusive. Therefore, when Ext.P10 order is passed by the 1st respondent, the 1st respondent has taken into account the aforesaid observations made by this Court and has directed that the petitioners have the right to get the pathway extended to 12 links and therefore, the preliminary order dated 01.09.2008 is made absolute, and directed respondents 3 to 5 to remove the obstructions made in the pathway within 15 days from the date of receipt of the order.
W.P.(C) No.428 of 2017 10
17. It is an undisputed fact that, thereafter, respondents 3 to 5 have extended the width to 12 links and the same is being enjoyed by the petitioners also. However, a contention is raised by the petitioners in this writ petition, that the 12 links pathway provided is not through the way as it originally stood, and therefore, petitioners are entitled to get Ext.P10 order executed through the original alignment. In my considered opinion, when there is a clear observation made by this Court in Ext.P4 judgment, providing flexibility to respondents 3 to 5 to put the 12 links width pathway through a convenient alignment and the way was provided by respondents at a width of 12 links, now the petitioners cannot turn around and contend that they should be provided with a way through the original alignment.
18. Moreover, the said respondents have a clear contention that the pathway originally had a width of 6 links only and consequent to the directions, the width had to be extended to 12 links, that there is no change of alignment and whatever change that has occurred, is due to the change of the width of the pathway. Moreover, from Ext.R3(c), I am convinced that the way was provided at the width of 12 links in W.P.(C) No.428 of 2017 11 the presence of the petitioners. There is no challenge against Ext.R3(c) proceedings dated 22.11.2014, and it has become conclusive.
19. Considering all these aspects, it is clear that the respondents have provided a 12 links pathway in the presence of the petitioners, which they are entitled to provide in accordance with the liberty granted under Ext.P4 common judgment rendered by this Court, and at this distance of time, it can only be presumed that the way provided was agreed upon by the petitioners. Moreover, there is no case or rather established case that the way enjoyed was through any public property, and therefore, it was only bearing in mind such a circumstance, this Court in Ext.P4 judgment made a provision for granting a convenient way at 12 links width, without causing much prejudice to the party respondents. Petitioners have not raised any objection with respect to the way provided and noted by the 2nd respondent in Ext.R3(c) communication issued to the Sub Collector, and therefore, the only possibility is that, petitioners have agreed for laying the pathway by extending its width to 12 links in the present condition. Therefore, in my considered opinion, there is no arbitrariness, W.P.(C) No.428 of 2017 12 illegality or any unfairness on the part of the respondents to comply with Ext.P10 order issued by the Sub Divisional Magistrate, and the directions issued by this Court in Ext.P11 order dated 27.10.2010, and the findings rendered in Ext.P4 judgment.
Therefore, the writ petition fails, accordingly, it is dismissed.
Sd/-
SHAJI P. CHALY JUDGE St/-
18.01.2018