Kerala High Court
Kazhutholan Pushpa vs Illathvalappil Yesodha on 16 July, 2020
Author: T.V.Anilkumar
Bench: T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
THURSDAY, THE 16TH DAY OF JULY 2020 / 25TH ASHADHA, 1942
Crl.MC.No.7920 OF 2017
CRRP 36/2015 OF SESSIONS COURT,THALASSERY
MP 7/2014 OF SUB DIVISIONAL MAGISTRATE,THALASSERY
PETITIONERS/REVISION PETITIONERS & COUNTER PETITIONER:
1 KAZHUTHOLAN PUSHPA
AGED 52 YEARS, W/O. MUKUNDAN, ADUTHILA,
EZHOME AMSOM,ERIPURAM CHENGAL DESOM,
P.O. PAZHAYANGADI,KANNUR TALUK, KANNUR DISTRICT
2 MUKUNDAN POLA
AGED 62 YEARS, S/O. CHIRUKANDAN, ADUTHILA,
EZHOME AMSOM,ERIPURAM CHENGAL DESOM,
P.O PAZHAYANGADI, KANNUR TALUK,KANNUR DISTRICT
BY ADV. SRI.M.V.AMARESAN
RESPONDENTS/RESPONDENTS AND PETITIONER:
1 ILLATHVALAPPIL YESODHA,
W/O. GOVINDAN, SAJ VIHAR,ADUTHILA, EZHOME AMSOM,
ERIPURAM CHENGAL DESOM,P.O PAZHAYANGADI,
KANNUR TALUK,KANNUR DISTRICT PIN 670 303
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, THALASSERY,
KANNUR DISTRICT, PIN 670 101
R1 BY ADV. SRI.I.V.PRAMOD
BY ADV.SRI. UDAYAKUMAR.K.B. (P.P.)
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
16-07-2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No.7920/2017
-:2:-
Dated this the 16th day of July, 2020
O R D E R
Annexure-1 order dated 25.11.2015 passed by the Sub Divisional Magistrate, Thalassery(RDO) and Annexure-3 order dated 03.06.2017 passed by the Sessions Judge in Crl.R.P.No.36/2015 are challenged by the original respondents in M.P. No.7/2014 initiated under Section 133 of the Code of Criminal Procedure,1973 (for short, 'the CrPC'), before this Court invoking inherent powers under Section 482 of the CrPC.
2. The first respondent herein filed the petition before the learned Sub Divisional Magistrate, Thalassery, complaining that northern boundary wall of her property collapsed due to the petitioners excavating soil from the northern land owned by them. The learned Sub Divisional Magistrate after holding enquiry and being satisfied that circumstances warranted his interference issued a conditional order. On petitioners' appearance and consequential enquiry held, the conditional order was confirmed by impugned Annexeure-1 order passed in M.P. Crl.M.C.No.7920/2017 -:3:- No.7/2014. The order passed under Section 138(2) of the CrPC though challenged in Crl.Revision No.36/2015, was not interfered with and it culminated in Annexure-3 revisional order passed by the learned Sessions Judge, Thalassery.
3. The sole point that is raised by the petitioners who are the original respondents in M.P.No.7/2014 purportedly filed under Section 133 of the CrPC is that the learned Sub Divisional Magistrate lacked jurisdiction to entertain the dispute raised before him by the first respondent. It is contended that the nature of dispute being purely private and of civil nature and further no public right being involved, the learned Sub Divisional Magistrate was totally unjustified in entertaining the very proceedings itself and invoking powers under Section 133 of the CrPC.
4. The first respondent is holding a piece of land to the south of the property owned by the petitioners herein. A boundary wall existing on the northern side of first respondent's land is said to have collapsed on account of the petitioners removing soil from their land depriving lateral support to the wall. The Crl.M.C.No.7920/2017 -:4:- contention of the first respondent in M.P. No.7/2014 was that as a result of collapse of the wall, her life and property had been put in imminent danger. This is the nature and scope of dispute to which intervention of the learned Sub Divisional Magistrate was called for.
5. The petitioners seems to have taken up a contention before the learned Sub Divisional Magistrate as well as the revisional court that they were not liable to restore the boundary since having regard to the situation of their land, they could not be held responsible for the collapse of the wall. The contention raised by the petitioners was that property to the immediate north of petitioners' land was possessed and enjoyed by a third party. This contention was found against the petitioners by both lower forums.
6. So far as the contention assailing the jurisdictional power of the learned Sub Divisional Magistrate is concerned, I have to fully agree with the learned counsel for the petitioners. The nature of dispute raised does not fall in any of the categories of disputes or situations enumerated in Section 133(1) of the CrPC. What Crl.M.C.No.7920/2017 -:5:- Section 133 contemplates is adjudication as to public nuisance when it affects the parties. Going by the facts set out in the case, it is obviously clear that the dispute between the parties is solely a private cause found on civil rights and no element of public nuisance is involved. A party cannot convert a private dispute or a private nuisance into a cause affecting public and take shelter under Section 133 of the CrPC.
7. After hearing both parties and perusal of material on records, I am fully satisfied that the order passed by the lower authorities directing the revision petitioners to restore the collapsed boundary wall to its original condition is absolutely wrong and opposed to the basic scheme and principles underlying Sections 133 and 138 of the CrPC. The learned Sub Divisional Magistrate acted without any jurisdiction and instead of correcting the error, the learned Sessions Judge also fell into the same error and committed illegality. Therefore, the impugned Annexures-1 and 3 orders require to be set aside.
In the result, allowing this Crl.M.C., Annexures-1 and 3 orders respectively dated Crl.M.C.No.7920/2017 -:6:- 25.11.2015 and 03.06.2017 are quashed. It is made clear that the remedy of first respondent under law is to approach the concerned civil court for appropriate reliefs available under law.
All pending interlocutory applications will stand closed.
Sd/-
T.V.ANILKUMAR,JUDGE
DST //True copy/
P.A.To Judge
Crl.M.C.No.7920/2017
-:7:-
APPENDIX
PETITIONERS' EXHIBITS:
ANNEXURE-1 TRUE COPY OF ORDER DATED 25-11-2015
PASSED BY SUB DIVISIONAL MAGISTRATE, THALASSERY(RDO) UNDER SECTION 138 OF CR.PC ANNEXURE-2 TRUE COPY OF THE MEMORANDUM OF CRIMINAL REVISION NO.36/2015 FILED BY THE PETITIONER BEFORE THE HON'BLE DISTRICT AND SESSION COURT, THALASSERY DATED 21- 12-2015 ANNEXURE-3 TRUE COPY OF DISMISSAL ORDER DATED 3- 06-2017 IN CRL.R.P NO. 36/2015 OF THE HON'BLE SESSION COURT, THALASSERY ANNEXURE-4 TRUE COPY OF CHIEF AFFIDAVIT IN M.P. 7/2014 DATED OCTOBER,2014 SUBMITTED BY THE 2ND PETITIONER BEFORE THE RDO ANNEXURE-5 TRUE COPY OF SURVEY PLAN SUBMITTED BEFORE THE SUB COLLECTOR, BY VILLAGE OFFICER ANNEXURE-6 TRUE COPY OF O.S.NO.281/2014 FILED BEFORE THE COURT OF THE MUNSIFF OF TALIPARAMBA ANNEXURE-7 TRUE COPY OF AFFIDAVIT IN O.S.NO.281/2014 FILED BY THE RESPONDENTS 1 AND 2 BEFORE THE COURT OF MUNSIFF OF TALIPARAMBA ANNEXURE-8 TRUE COPY OF AFFIDAVIT SUPPORTING IN I.A.NO.888/2014 IN O.S.NO.281/2014 FILED BEFORE THE COURT OF THE MUNSIFF OF TALIPARAMBA ANNEXURE-9 TRUE COPY OF INTERIM INJUNCTION ORDER AGAINST THE RESPONDENTS IN I.A.NO.888/2014 IN O.S.NO.281/2014. RESPONDENTS' EXHIBITS: NIL