Yashodha vs The State Of Kerala
2021 Latest Caselaw 16889 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
                  WP(C) NO. 4761 OF 2021
PETITIONERS:

    1     YASHODHA,
          D/O. KUNJUKUNJU, GIREESH VILASAM,
          PULIYOORKONAM P.O., VARKALA,
          THIRUVANANTHAPURAM 695 604.
    2     JALAJA,
          D/O YASHODHA, GIREESH VILASAM,
          PULIYOORKONAM P.O., VARKALA,
          THIRUVANANTHAPURAM 695 604.
          BY ADVS.
          V.B.PREMACHANDRAN
          SRI.K.P.SREEKUMAR
          SRI.S.MADHAVAN NAIR


RESPONDENTS:

    1     THE STATE OF KERALA
          REPRESENTED BY ITS SECRETARY, REVENUE
          DEPARTMENT, GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM 695 001.
    2     DISTRICT COLLECTOR,
          THIRUVANANTHAPURAM, COLLECTORATE, 2ND FLOOR
          CIVIL STATION BUILDING, CIVIL STATION ROAD,
          KUDAPPANAKUNNU P.O., THIRUVANANTHAPURAM 695 043.
    3     SUB DIVISIONAL MAGISTRATE (I/C),
          OFFICE OF SUB DIVISIONAL MAGISTRATE,
          CIVIL STATION ROAD, KUDAPPANAKUNNU,
          PEROORKADA P.O., THIRUVANANTHAPURAM 695 005.
 W.P.(C) No.4761 of 2021                   2



        4          TAHSILDAR AND EXECUTIVE MAGISTRATE,
                   TALUK OFFICE, VARKALA, VARKALA P.O.,
                   THIRUVANANTHAPURAM 695 141.
        5          VILLAGE OFFICER,
                   VILLAGE OFFICE, MADAVOOR, MADAVOOR P.O.
                   THIRUVANANTHAPURAM 695 602.
        6          BIJU,
                   BIJU VILASAM, PULIYOORKONAM P.O.,
                   VARKALA, THIRUVANANTHAPURAM 695 604.


                   SRI.SARIN PANICKER - R6
                   SMT.PRINCY XAVIER GP


            THIS      WRIT   PETITION   (CIVIL)   HAVING   COME    UP    FOR
ADMISSION            ON   12.08.2021,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No.4761 of 2021                     3




                            P.B.SURESH KUMAR, J.
               ---------------------------------------------------------
                           W.P.(C) No.4761 of 2021
              ----------------------------------------------------------
                 Dated this the 12th day of August, 2021.


                                 JUDGMENT

The first petitioner is a widow aged 69 years. The

second petitioner is the daughter of the first petitioner. The

first petitioner is residing in a building on a land measuring 7

cents owned by the second petitioner. The sixth respondent is

the owner of the property situated on the south eastern side of

the land of the second petitioner. It is stated by the petitioners

that the sixth respondent has removed soil at a depth of 5 feet

from his land lying adjoining to the land of the second petitioner

for the purpose of constructing a building. Though the soil has

been removed by the sixth respondent with the permission of

the petitioners, it is stated by the petitioners that the

permission aforesaid was based on an assurance given by the

sixth respondent that he will construct a retaining wall to

protect the land of the second petitioner. It is alleged by the

petitioners that the sixth respondent has not constructed the

retaining wall as assured by him and consequently, the land of

the second petitioner was subjected to land sliding during rainy

season. It is also alleged by the petitioners that the land sliding

in the said land in course of time has posed threat to the

existence of the building of the second petitioner where the first

petitioner is residing. The first petitioner, in the circumstances,

initiated proceeding before the third respondent under Section

133 of the Code of Criminal Procedure (the Code) and obtained

Ext.P2 conditional order directing the sixth respondent to

construct a retaining wall on the boundary of his land to avert

the danger to the land and building of the second petitioner.

Ext.P2 order has been affirmed by the fourth respondent in

terms of Ext.P3 order under Section 138(2) of the Code after

hearing the sixth respondent. It is alleged by the petitioners

that the direction contained in Exts.P2 and P3 orders however,

have not been complied with by the sixth respondent. The first

petitioner, therefore, preferred Ext.P4 representation to the

third respondent seeking appropriate steps for implementation

of Exts.P2 and P3 orders. Ext.P4 representation has been filed

on 24.11.2020. The writ petition is instituted alleging that

Ext.P4 representation is not being acted upon by the

respondents. The petitioners, therefore, seek appropriate

directions to respondents 2 to 5 to give effect to Ext.P3 order.

2. Heard the learned counsel for the petitioners as

also the learned Government Pleader.

3. As noted, Ext.P3 is an order passed by the

competent authority confirming a conditional order passed

under Section 133(1) of the Code, invoking the power under

Section 138(2) of the Code. Sub Section (1) of Section 141 of

the Code provides that when an order has been made under

Section 138 of the Code, the Magistrate shall give notice of the

same to the person against whom the order was made, and

shall further require him to perform the act directed by the

order within a time to be fixed in the notice, and inform him

that, in case of disobedience, he will be liable to the penalty

provided by Section 188 of the Indian Penal Code. Sub Section

(2) of Section 141 provided that if the act directed in terms of

the notice under Sub Section (1) of Section 141 is not

performed within the time stipulated, the Magistrate may cause

the act to be performed and may recover the costs of

performing it from the person concerned. In the light of the

aforesaid provisions, it is clear that if a conditional order issued

under Section 133(1) of the Code, and affirmed under 138(2) of

the Code is not complied with, it is the duty of the competent

authority under the Code to cause the direction to be

performed. Needless to say, the inaction on the part of the

respondents in acting upon Ext.P4 representation preferred by

the first petitioner is unjustified.

In the result, the writ petition is allowed and the

competent among the respondents is directed to implement

Ext.P3 order as provided for under Section 141 of the Code

forthwith.

Sd/-

P.B.SURESH KUMAR, JUDGE.

rkj

APPENDIX OF WP(C) 4761/2021

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PETITION DATED NIL SUBMITTED BY PETITIONERS BEFORE THE 2ND RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE ORDER NO. M.C. 137/19 DATED 9.12.2019 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE ORDER NO. C3-3801/2019 DATED 27.7.2020 ISSUED BY THE 4TH RESPONDENT TAHSILDAR, AND EXECUTIVE MAGISTRATE.

EXHIBIT P4        TRUE COPY OF THE PETITION DATED
                  24.11.2020 SUBMITTED BY PETITIONERS
                  BEFORE THE 3RD RESPONDENT.