Kerala High Court
Ouseph Joseph vs The State Of Kerala on 21 December, 2009
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27262 of 2008(U)
1. OUSEPH JOSEPH, S/O. OUSEPH, AGED 68,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE DISTRICT COLLECTOR, KOTTAYA,
3. THE REVENUE DIVISIONAL OFFICER,
4. THE SECRETARY, MEENACHIL PANCHAYAT,
5. THE TAHSILDAR, MEENACHIL TALUK,
6. JANIFER SAJI, S/O. CHITHRAKKUNNEL SAJI,
7. RAMACHANDRAN, S/O. KIZHAKKEMURIYIL
8. K.G.RAJAN, KIZHAKKEMURIYIL, POVARANI P.O
9. KURIAN KOCHU, KIZHAKKETHOTTATHIL,
10. BABU, CHAKKUNGAL, MALLIKASSERI P.O.,
For Petitioner :SRI.K.JAYAKUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :21/12/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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W.P.(C)No. 27262 OF 2008
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Dated this the 21st day of December,2009
JUDGMENT
Petitioner is a person in possession of paddy field in survey No.308/2 of Vilakkumadam Kara, Poovarani Village, Meenachil Taluk. The panchayat thodu is flowing through the paddy fields. The thodu vests with the fourth respondent Panchayat. Petitioner filed Ext.P6 petition before third respondent to initiate action under section 133 of Code of Criminal Procedure in his capacity as the Sub Divisional Magistrate alleging that the width of the pathway has been reduced by filling up a portion of the thodu and converting the reclaimed portion as part of the road alleging that by such action obstruction has been caused to the free flow of water along the thodu used by the public including the petitioner. This W.P.(C) 27262/2008 2 petition is filed under Article 226 of Constitution of India for a writ of mandamus or direction to the third respondent to proceed against respondents 6 to 10, who allegedly reduced the width of the puramboke thodu invoking the powers under sections 133 and 137 of Code of Criminal Procedure and also for a direction to the fourth respondent Panchayat to initiate action on Ext.P3 representation filed, raising the same contentions.
2. Third respondent filed a statement on behalf of respondents 1 and 2 also, as directed by this court, stating that on receipt of Ext.P6 complaint an inquiry was conducted through Village Officer and it was found that there was a pathway along the side of the puramboke thodu and the pathway was encroached upon by the adjacent paddy field owners and as the width of the pathway was thus reduced, a portion of the puramboke thodu was filled up after encroaching it and consequently the free flow of water through the canal was partially W.P.(C) 27262/2008 3 obstructed and to find out the actual encroachment steps are taken to survey the entire area and demarcate the thodu puramboke and the paddy fields. It is stated that as and when the entire area is surveyed and demarcated, steps will be initiated to restore the thodu to its original position. It is also contended that Village Officer has forwarded a report to Additional Tahsildar, Meenachil to take necessary action under the Kerala Land Conservancy Act and as provided under section 245 of Kerala Panchayat Raj Act and 218(1) of Kerala Panchayat Raj Act action will be initiated.
3. Learned counsel appearing for petitioner and learned Public Prosecutor were heard.
4. The statement filed by third respondent itself establish that the thodu, which was partially obstructed, is a puramboke thodu vested in the Panchayat. It is being used by the public. The statement also shows that width of the W.P.(C) 27262/2008 4 thodu, was reduced by reclaiming a portion and converting it into a public road and it was done as paddy field owners encroached upon the original pathway and reduced it as part of their paddy fields. Learned counsel appearing for the petitioner submitted that entire survey was subsequently completed, evidenced by Ext.P9 series of plans and therefore necessary directions is to be issued to proceed for restoring the thodu, which caused obstruction of the public thodu.
5. Evidently proceedings were not initiated under section 133 of Code of Criminal Procedure on Ext.P6 complaint, for the reason that to ascertain the width of the pathway and to find out the obstruction caused to the thodu, a survey of the entire area is necessary. The statement filed by third respondent establishes that the public puramboke thodu was obstructed by filling up a portion of the thodu and converting it into part of the road and by such encroachment obstruction to W.P.(C) 27262/2008 5 the free flow of water is caused. In such circumstances, when the survey is over and the actual lie of the original thodu is fixed the third respondent is bound to take action in Ext.P6 complaint without further delay. When the thodu which vested in the Panchayat, was encroached upon and the actual encroachment is now ascertained by survey and preparation of a plan, fourth respondent Panchayat should initiate action to restore the thodu to its original position.
Writ Petition is therefore disposed directing third respondent to initiate action on Ext.P6 complaint without further delay and fourth respondent Panchayat is directed to take steps to restore the thodu which vested in the Panchayat, to its original position in accordance with law.
M.SASIDHARAN NAMBIAR JUDGE tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT SEPTEMBER,2006