Lizy Samuel vs Sub Divisional Magistrate
2022 Latest Caselaw 1702 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
               THE HONOURABLE MRS. JUSTICE MARY JOSEPH
   WEDNESDAY, THE 16TH DAY OF FEBRUARY 2022 / 27TH MAGHA, 1943
                       OP(CRL.) NO. 32 OF 2022
(PROCEEDINGS NO.B1-2400/2019 BEFORE THE SUB DIVISIONAL MAGISTRATE
                            & RDO, ADOOR)
PETITIONER:

          LIZY SAMUEL,
          AGED 67 YEARS,
          W/O C.M.SAMUEL,
          CHAKALETHU HOUSE,
          MULLENIKADU, VAZHAMUTTOM P.O.,
          OMALLOR VILLAGE,
          PATHANAMTHITTA DISTRICT,
          PIN - 689 647

          BY ADVS.SRI.JACOB P.ALEX
                  SRI.JOSEPH P.ALEX
                  SRI.MANU SANKAR P.
                  SRI.AMAL AMIR ALI



RESPONDENTS:

    1     SUB DIVISIONAL MAGISTRATE & RDO
          REVENUE DIVISIONAL OFFICE, ADOOR
          PIN - 691 523

    2     K.K NAVAS,
          KUNNEL HOUSE,
          MUNDUKOTTAIKKAL P.O.,
          VETTIPURAM, PATHANAMTHITTA
          PIN - 689 649

          R1 BY GOVERNMENT PLEADER SRI.ARAVIND V MATHEW
          R2 BY ADV.SRI.K.SHAJ

THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 16.02.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P (Crl) No.32 of 2022           2



                           JUDGMENT

Dated this the 16th day of February, 2022

This petition is filed under Article 227 of the Constitution of

India by the complainant in Proceedings No.2400/2019/B1 before

the Sub Divisional Magistrate and RDO, Adoor, initiated under

Section 133 of the Code of Criminal Procedure (for short 'the

Cr.P.C.'). The 2nd respondent is the sole respondent in the above

proceedings. The reliefs sought in this petition are as follows:-

"I. Direct the 1st respondent to issue further orders as provided in Section 141 of the Cr.P.C, to implement the direction issued in Exhibit P3 and P6 orders;

II. Direct the 1st respondent to issue an order as provided in Section 141(2) of Cr.P.C. and to cause the act as directed in Exhibit P3 and P6 to be performed at the cost of the 2 nd respondent, in the event of the failure of 2nd respondent to comply with the directions in Exhibit P3 and P6.

III. Issue such other appropriate writ, order or direction as this Hon'ble Court may deem just and fit in the circumstances of the case."

2. The 1st respondent/ RDO has passed a Proceedings on

18.09.2019 as No.2400/2019/B1 directing the 2 nd respondent to

construct a retainer wall at the boundary wherefrom soil was

removed, within a period of three months from 18.09.2019,

copy of which is appended to the petition on hand as Ext.P3.

3. The 2nd respondent had informed the RDO that the

retainer wall would be constructed within three months and the

petitioner has agreed for that. The petitioner has laid a

complaint in the Adalath held at the Taluk Level, Kozhenchery

and was heard on 31.01.2020. The 2 nd respondent appeared in

person and submitted that the loan applied from the Bank was

not sanctioned and in view of his financial constraints, the

retainer wall would be constructed, subject to sanctioning of

loan after the month of March, 2020. The 2 nd respondent was

also heard by the RDO in a complaint preferred by the petitioner

alleging non implementation of Ext.P3 order and was directed by

proceedings issued on 22.01.2021 to construct the retainer wall

before 20.02.2021.

4. Despite directions issued to the 2 nd respondent, the

compliance was prolonged and therefore, the Original Petition

on hand is filed under Article 227 of the Constitution of India.

5. Sri.K.Shaj the learned counsel appeared on behalf of

the 2nd respondent contended that Ext.P3 could not be

implemented as it was passed by the RDO without jurisdiction.

According to him the power under Section 133 Cr.P.C could not

be invoked to remove nuisance from a private place. According

to him the power under Section 133 Cr.P.C. could be exercised by

the RDO only to remove nuisance from public place and the

retainer wall directed to be constructed by Ext.P3 being in the

boundary of the property belonging to the petitioner, it is only a

direction issued without jurisdiction and is not liable to be

implemented. According to him revision is already filed

challenging Ext.P3 and that is pending consideration.

6. Construction of the retainer wall was sought as a

measure to protect the property of the petitioner and Ext.P3 was

passed as early as on 18.09.2019 based on the undertaking of

the 2nd respondent before the authority concerned to construct it.

Evenafter lapse of more than 2 years, Ext.P3 still remains as a

paper right for the petitioner. Therefore, the direction sought to

the RDO for expeditious implementation of Ext.P3 is expedient

to be issued in the interest of justice and therefore, this Court is

inclined to issue it.

In the result, O.P (Crl.) is allowed and the 1 st respondent is

directed to implement Ext.P3 and report compliance within a

period of one month from this day in accordance with the

procedure under Section 141 Cr.P.C.

Sd/-

MARY JOSEPH JUDGE

MJL

APPENDIX OF OP(CRL.) 32/2022

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE NOTICE DATED 19/03 ISSUED BY THE IST RESPONDENT DIRECTING APPEARANCE OF PARTIES ON 04.04.2019 EXHIBIT P2 TRUE COPY OF THE STATEMENT DATED 18.09.2019 SUBMITTED BY THE 2ND RESPONDENT BEFORE 1ST RESPONDENT EXHIBIT P2(a) TRUE COPY OF THE REPLY STATEMENT DATED 12.10.2018 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE VILLAGE OFFICER, OMALLUR EXHIBIT P3 TRUE COPY OF THE ORDER DATED 18.09.2019 ISSUED BY THE 1ST RESPONDENT EXHIBIT P4 TRUE COPY OF THE REPORT DATED 22.02.2020 ISSUED BY THE TAHASILDAR, KOZHENCHERRY BEFORE THE DISTRICT COLLECTOR, PATHANAMTHITTA EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 04.01.2021 ISSUED BY THE 1ST RESPONDENT EXHIBIT P6 TRUE COPY OF THE ORDER DATED 22.01.2021 ISSUED BY THE 1ST RESPONDENT EXHIBIT P7 TRUE COPY OF THE ORDER DATED 01.12.2021 ISSUED BY THE DISTRICT COLLECTOR, PATHANAMTHITTA

RESPONDENTS' EXHIBITS: NIL

TRUE COPY

PA TO JUDGE