M.K.Joseph vs District Magistrate & Collector, ...
2025 Latest Caselaw 3971 Ker

Kerala High Court

M.K.Joseph vs District Magistrate & Collector, ... on 12 February, 2025

Author: Kauser Edappagath

Bench: Kauser Edappagath

OP(CRL.) NOs. 1493 & 1499 OF 2012, WP(C) NOs. 11277& 12668 OF 2012


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                                                    2025:KER:11751



           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

WEDNESDAY, THE 12TH DAY OF FEBRUARY 2025 / 23RD MAGHA, 1946

                   OP(CRL.) NO. 1493 OF 2012

PETITIONER:

           P.RAMACHANDRAN NAIR
           AGED 66 YEARS
           S/O.SHANKARA KURUP, PRESIDENT,
           VALIYAKARI PADASEKHARA KARSHAKA SANGHAM
           (A/261/77), RESIDING AT 'AISHWARYA',
           ERAMALLOOR P.O., EZHUPUNNA, CHERTHALA,
           ALLEPPEY DISTRICT, PIN 688588.


           BY ADVS.
           SRI.ABRAHAM VAKKANAL (SR.)
           SRI.DIJO SEBASTIAN
           SRI.PAUL ABRAHAM VAKKANAL
           SRI.PRASUN.S
           SMT.VINEETHA SUSAN THOMAS




RESPONDENTS:

    1      DISTRICT MAGISTRATE & COLLECTOR,
           ALAPPUZHA
           PIN 688001.

    2      THE TAHSILDAR
           TALUK OFFICE, CHERTHALA,
           ALAPPUZHA DISTRICT, PIN 688524.
 OP(CRL.) NOs. 1493 & 1499 OF 2012, WP(C) NOs. 11277& 12668 OF 2012


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    3      THE AGRICULTURAL OFFICER
           KRISHI BHAVAN, EZHUPUNNA,
           ERAMALLOOR P.O., ALAPPUZHA DISTRICT,
           PIN 688537.

    4      EZHUPUNNA GRAMA PANCHAYAT
           REPRESENTED BY SECRETARY,
           ERAMALLOOR P.O., ALAPPUZHA DISTICT,
           PIN 688537.

    5      STATE OF KERALA REPRESENTED BY THE PUBLIC
           PROSECUTOR
           HIGH COURT OF KERALA, ERNAKULAM DISTRICT,
           PIN 682031.

           SMT.SREEJA V., SR.P.P.


     THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
12.02.2025,   ALONG   WITH   OP(CRL.).1499/2012     AND   CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(CRL.) NOs. 1493 & 1499 OF 2012, WP(C) NOs. 11277& 12668 OF 2012


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                                                    2025:KER:11751




               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT

        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

WEDNESDAY, THE 12TH DAY OF FEBRUARY 2025 / 23RD MAGHA, 1946

                   OP(CRL.) NO. 1499 OF 2012

PETITIONER:

           M.K.JOSEPH
           AGED 60 YEARS
           PROSEDENT, KOMBANATHURUTH PADASEKHARAM
           KARSHAKASANGHAM, (A 84/75), EZHUPUNNA P.O,
           RESIDING AT MOLLAMKUZHY HOUSE,
           EZHUPUNNA NORTH P.O, ALAPPUZHA DISTRICT,
           CHERTHALA 688548


           BY ADVS.
           SRI.ABRAHAM VAKKANAL (SR.)
           SRI.DIJO SEBASTIAN
           SRI.PAUL ABRAHAM VAKKANAL




RESPONDENTS:

    1      DISTRICT MAGISTRATE & COLLECTOR,
           ALAPPUZHA DISTRICT 688001

    2      THE TAHSILDAR
           TALUK OFFICE, CHERTHALA,
           ALAPPUZHA DISTRICT 688524
 OP(CRL.) NOs. 1493 & 1499 OF 2012, WP(C) NOs. 11277& 12668 OF 2012


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    3      THE AGRICULTURAL OFFICER
           KRISHI BHAVAN, EZHUPUNNZ, ERAMALLOOR P.O,
           ALAPPUZHA DISTRICT 688537

    4      EZHUPUNNA GRAMA PANCHAYAT
           REPRESENTED BY SECRETARY, ERAMALLOOR P.O,
           ALAPPUZHA DISTRICT, 688537

    5      STATE OF KERALA
           REPRESENTED BY THE PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA,
           ERNAKULAM DISTRICT 682031



OTHER PRESENT:

           SMT.SREEJA.V-SR.PP


     THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
12.02.2025,   ALONG   WITH   OP(CRL.).1493/2012     AND   CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(CRL.) NOs. 1493 & 1499 OF 2012, WP(C) NOs. 11277& 12668 OF 2012


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                                                    2025:KER:11751



           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT

        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

WEDNESDAY, THE 12TH DAY OF FEBRUARY 2025 / 23RD MAGHA, 1946

                    WP(C) NO. 11277 OF 2012

PETITIONER:

           M/S.M.K.JOHNAPPAN & SONS,
           EZHUPUNNA P.O., REPRESENTED BY ITS MANAGING
           PARTNER, M.K.JOHNAPPAN, S/O.KUNJAPPAN
           AGED 64 YEARS, RESIDING AT REJITHA BHAVAN
           EZHUPUNNA MURI EZHUPUNNA VILLAGE, CHERTHALA.


           BY ADVS.
           SRI.K.S.HARIHARAPUTHRAN
           SRI.DIPU JAMES
           SRI.GEORGE MATHEW
           SRI.M.D.SASIKUMARAN




RESPONDENTS:

    1      STATE OF KERALA
           REP. BY PRINCIPAL SECRETARY
           REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM - 695 001

    2      THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR
           COLLECTORATE, ALAPPUZHA - 688 001.

    3      EZHUPUNNA GRAMA PANCHAYATH
           REPRESENTED BY ITS SECRETARY,
           GRAMA PANCHAYATH OFFICE, EZHUPUNNA,
 OP(CRL.) NOs. 1493 & 1499 OF 2012, WP(C) NOs. 11277& 12668 OF 2012


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           CHERTHALA - 688 548.

    4      THE AGRICULTURAL OFFICER
           KRISHI BHAVAN, EZHUPUNNA
           ERAMALLOOR P.O.,CHERTHALA - 688 537

    5      P.S.MICHAEL
           CONVENOR, JANAKEEYA SAMITHY,
           NEENDAKARA, EZHUPUNNA P.O.,
           CHERTHALA - 688 548.


           BY ADVS.
           SRI.G.ANANTHANARAYANAN
           SRI.V.R.RAJESH
           SMT.SREEJA V. SR.P.P.


     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 12.02.2025, ALONG WITH OP(CRL.).1499/2012 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(CRL.) NOs. 1493 & 1499 OF 2012, WP(C) NOs. 11277& 12668 OF 2012


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                                                    2025:KER:11751


           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

WEDNESDAY, THE 12TH DAY OF FEBRUARY 2025 / 23RD MAGHA, 1946

                    WP(C) NO. 12668 OF 2012

PETITIONER:

           THE PUCHITRA GARDENS LTD.
           HAVING ITS REGISTERED OFFICE AT RIVER HOUSE,
           YACHTCLUB ENCLAVE KONTHURUTHY, KOCHI - 682 013,
           REPRESENTED BY ITS MANAGING DIRECTOR,
           RAMESH J.THARAKAN, S/O.JOHN THARAKAN,
           AGED 63 YEARS.


           BY ADVS.
           SRI.M.GOPIKRISHNAN NAMBIAR
           SRI.P.BENNY THOMAS
           SRI.JOSON MANAVALAN



RESPONDENTS:

    1      STATE OF KERALA
           REPRESENTED BY ITS PRINCIPAL SECRETARY,
           REVENUEDEPARTMENT,
           GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM - 695 001.

    2      THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR
           COLLECTORATE, ALAPPUZHA - 688 101.

    3      EZHUPUNNA GRAMA PANCHAYATH
           REPRESENTED BY ITS SECRETARY,
           GRAMA PANCHAYATH OFFICE, EZHUPUNNA,
 OP(CRL.) NOs. 1493 & 1499 OF 2012, WP(C) NOs. 11277& 12668 OF 2012


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           CHERTHALA - 688 548.

    4      THE AGRICULTURAL OFFICER
           KRISHI BHAVAN, EZHUPUNNA, ERAMALLOOR
           P.O.,CHERTHALA - 688 537.

    5      MR.MICHAEL P.S.
           S/O.SOURI, AGED ABOUT 35 YEARS,
           RESIDING AT PANHITHARA VEEDU, NEENDAKARA,
           EZHUPUNNA, PRESIDENT, JANAKEEYA SAMITHI,
           NEENDAKARA, EZHUPUNNA P.O.
           CHERTHALA - 688 548.

           SRI.M.P.PRASANTH, P.P.


     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 12.02.2025, ALONG WITH OP(CRL.).1499/2012 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(CRL.) NOs. 1493 & 1499 OF 2012, WP(C) NOs. 11277& 12668 OF 2012


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                         JUDGMENT

OP(Crl.) Nos. 1493 & 1499 of 2012 &

WP(C) Nos. 11277 & 12668 of 2012

The order passed by the District Magistrate & District

Collector, Alappuzha, the 1st respondent in OP(Crl.) Nos. 1493 &

1499 of 2012 and 2nd respondent in WP(C) Nos. 11277 & 12668 of

2012 in C.10-20395/2011 dated 03.05.2012 purportedly under

Section 133 of Cr.P.C., is under challenge in all these petitions.

2. The petitioners have been conducting fish farming on

their respective land owned by them for the last so many years.

According to them, their lands are not fit for paddy cultivation. It

is their case that fish farming is being conducted in compliance

with all the statutory formalities.

3. One Mr.P.S.Michael, the Convener of Janakeeya

Samithy, Neendakara, filed a complaint before the 1st respondent

alleging that fish cultivation is being done in the property of the

petitioners in a most unscientific manner, and hence steps OP(CRL.) NOs. 1493 & 1499 OF 2012, WP(C) NOs. 11277& 12668 OF 2012

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should be taken to stop the same. It appears that a similar

decision was taken by the Ezhupunna Grama Panchayat in its

meeting held on 02.05.2012. On the basis of the complaint given

by Mr.P.S.Michael and the decision taken by the Ezhupunna

Grama Panchayat, the proceedings were initiated by the District

Magistrate & District Collector, Alappuzha, under Section 133 of

Cr.P.C. The learned District Magistrate called for a report from

the Agricultural Officer. Thereafter, the impugned order was

passed, restraining the petitioners from conducting fish farming

on their respective lands. Challenging the said order, these

petitions have been filed.

4. I have heard Sri.Abraham Vakkanal,

Sri.K.S.Hariharaputhran and Sri.M.Gopikrishnan Nambiar, the

learned counsel for the petitioners and Smt.Sreeja V., and

Sri.M.P.Prasanth, the learned Public Prosecutors.

5. As stated already, the impugned order appears to have

been passed under Section 133 of Cr.P.C. On perusal of the said

order, it seems to be a final order. However, under Section 133 of OP(CRL.) NOs. 1493 & 1499 OF 2012, WP(C) NOs. 11277& 12668 OF 2012

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Cr.P.C the District Magistrate has no authority to pass a final

order. He can only pass a conditional order for the removal of

nuisance. An opportunity has to be given to the aggrieved person

to show cause as to why the conditional order should not be

made absolute. Thereafter only, final order can be passed under

Section 138 of Cr.P.C that too, after following the statutory

formalities. That apart, it is evident from the impugned order

that the 1st respondent has passed the order without conducting

any enquiry or even without giving an opportunity to the

petitioners to file objections or to put forward their case. The

impugned order is not a speaking order also. The learned District

Magistrate simply relied on the report of the Agricultural Officer

as well as the resolution passed by the Ezhupunna Grama

Panchayat and passed the impugned order. Apparently, the

report of the Agricultural Officer was sought behind the back of

the petitioners and a copy of the resolution of the Panchayat was

also not served to the petitioners.

6. For these reasons, I have no hesitation to hold that the OP(CRL.) NOs. 1493 & 1499 OF 2012, WP(C) NOs. 11277& 12668 OF 2012

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impugned order is vitiated by non compliance of the statutory

formalities. It violates the principles of natural justice as well.

Hence, the impugned order is not sustainable and accordingly it

is set aside. However, the District Magistrate is free to initiate

fresh action against the petitioners under Section 133 of Cr.P.C, if

he so desires, but strictly complying with all the statutory

formalities.

These petitions are disposed of as above.

Sd/-

DR.KAUSER EDAPPAGATH, JUDGE AS OP(CRL.) NOs. 1493 & 1499 OF 2012, WP(C) NOs. 11277& 12668 OF 2012

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APPENDIX OF OP(CRL.) 1493/2012

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE ORDER OF THE DISTRICT MAGISTRATE

EXHIBIT P2 TRUE COPY OF HEARING NOTE BY THE PETITIONER BEFORE 1ST RESPONDENT

EXHIBIT P3 TRUE COPY OF THE MINUTES OF THE MEETING CONVENED BY 1ST RESPONDENT

EXHIBIT P4 TRUE COPY OF THE AGREEMENT

EXHIBIT P5 TRUE COPY OF THE ORDER NO.LR(A)1-8846/05 OP(CRL.) NOs. 1493 & 1499 OF 2012, WP(C) NOs. 11277& 12668 OF 2012

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APPENDIX OF OP(CRL.) 1499/2012

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE APPEAL MEMORANDUM FILED BEFORE THE COMMISSIONER OF LAND REVENUE

EXHIBIT P2 TRUE COPY OF THE ORDER NO. LR(A)-8846/05

EXHIBIT P3 TRUE COPY OF THE MINUTES OF THE MEETING

EXHIBIT P4 TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT

EXHIBIT P5 TRUE COPY OF THE REPLY TO THE 1ST RESPONDENT

EXHIBIT P6 TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER

EXHIBIT P7 TRUE COPY OF THE AGREEMENT

EXHIBIT P8 TRUE COPY OF THE ORDER NO. C.10-

OP(CRL.) NOs. 1493 & 1499 OF 2012, WP(C) NOs. 11277& 12668 OF 2012

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APPENDIX OF WP(C) NO. 11277/2012

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF PARTNERSHIP DEED DATED 31.03.1997.

EXHIBIT P2 TRUE COPY OF THE AGREEMENT DATED 19.07.2011.

EXHIBIT P3 TRUE COPY OF THE ORDER DATED 10.03.2006 PASSED BY THE COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM.

EXHIBIT P4 TRUE COPY OF THE ORDER DATED 03.05.2012 PASSED BY THE 2ND RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE REPLY TO THE 1ST RESPONDENT

RESPONDENTS' EXHIBITS:

EXHIBIT R5(A) TRUE COPY OF THE JUDGMENT DATED 09.04.2010 IN W.P (C) 12929/2010

EXHIBIT R5(B) TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 22.07.2010 EXHIBIT R5(C) TRUE COPY OF THE MINUTES OF THE PROCEEDINGS DATED 04.08.2011 EXHIBIT R5(D) TRUE COPY OF THE APPEAL DATED 09.05.2012 PREFERRED BY THE PETITIONER TO THE REVENUE SECRETARY EXHIBIT R5(E) TRUE COPY OF APPLICATION PREFERRED BY THE SECRETARY OF PILLERKATTU NARIYANDI RESIDENCE ASSOCIATION, NEENDAKARA TO THE PUBLIC INFORMATION OFFICER, FISHERIES DEPARTMENT, ALAPPUZHA ON 07.09.2012 EXHIBIT R5(F) TRUE COPY OF REPLY OF PUBLIC INFORMATION OP(CRL.) NOs. 1493 & 1499 OF 2012, WP(C) NOs. 11277& 12668 OF 2012

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OFFICER, ALAPPUZHA REPLIED TO THE SECRETARY OF PILLERKATTU NARIYANDI RESIDENCE ASSOCIATION ON 09.05.2012 EXHIBIT R5(G) TRUE COPY OF THE NEWS REPORTED IN MATHRUBHUMI DAILY DATED 15.06.2012 OP(CRL.) NOs. 1493 & 1499 OF 2012, WP(C) NOs. 11277& 12668 OF 2012

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APPENDIX OF W.P.(C) NO.12668/2012

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE ORDER DATED 10.03.2006 ISSUED BY LAND REVENUE COMMISSIONER

EXHIBIT P2 TRUE COPY OF ORDER DATED 03.05.2012 IN PROCEEDINGS NO.C10-20395/11 PASSED BY THE 2ND RESPONDENT.