T.G.THANKACHAN Vs. DISTRICT COLLECTOR PATHANAMTHITTA

JUDGEMENT

(1.) Viju Abraham, J, 1. The above writ petition has been filed seeking to quash Ext.P4 and for a further direction to the 1st respondent to comply and enforce Exts. P3 and P6 orders.

(2.) Petitioner is the absolute owner of an extent of 16.40 Ares of property in Sy.No. 189/11 in Omalloor Village in Pathanamthitta District and a 5 feet wide pathway has been provided for entry into the property from the main road. While so, the 3rd respondent, whose property lies on the side of the 5 feet wide pathway, removed earth from the property on the side of the pathway upto a depth of 10 metres and for a length of 65 metres, without providing any lateral support to the pathway. This has resulted in the pathway being left unprotected and unsupported and certain portion of the pathway was already demolished due to the removal of earth from one side. The petitioner submits that the said removal of earth was done without obtaining any permit under the Kerala Minor Minerals Concession Rules. Thereupon the petitioner submitted Ext.P2 representation dtd. 16/7/2012 before the 1st respondent seeking intervention into the matter. The 1st respondent called for a report from the 2nd respondent Village Officer. The 2nd respondent conducted a detailed inspection and submitted Ext.P3 report stating that earth has been removed as stated by the petitioner. The 2nd respondent also reported that petitioner has no other way to enter into the property and that the claim of the petitioner was found to be genuine on inspection. It is the contention of the petitioner that the 1st respondent has issued an order directing the present land owner,the 4th respondent, to construct the retaining wall, which could be seen from the endorsement in Ext. P3 report itself. Thereafter the petitioner was served with Ext.P4 order, which is impugned in this writ petition, wherein it is ordered that the retaining wall is to be constructed by the petitioner himself. When the petitioner made an enquiry regarding the same, he was informed that the earlier District Collector who heard the matter and made endorsement in Ext.P3 report, has been transferred as District Collector, Alappuzha, and Ext.P4 was issued by the successor in office. Suspecting foul play, Ext.P5 complaint was preferred by the petitioner before the erstwhile District Collector. In Ext.P5, an endorsement has been made by the District Collector, Alappuzha intimating the District Collector, Pathanamthitta that a wrong interpretation of his order has resulted in this petition and the land owner who is to construct the retaining wall is the person from whose land, the earth was removed. The petitioner has also approached the Kerala State Human Rights Commission and the Commission as per Ext.P6 order directed the petitioner to approach the District Collector for compliance of Ext.P5. Thereafter a complaint was preferred before the Vigilance seeking action against the officials at the Collectorate for having manipulated with Ext.P3 order. Ext.P7 report has been submitted by the District Collector, Pathanamthitta ' the 1st respondent herein, before the Vigilance and Anti Corruption Bureau intimating that since Ext.P3 order issued by the erstwhile District Collector was impractical, the subsequent District Collector has passed a fresh order. It is in the said circumstances that the petitioner has approached this Court filing the above said writ petition.

(3.) A detailed counter affidavit has been filed by the 4th respondent, wherein a preliminary objection has been raised that the grievance raised by the petitioner is private and is purely of a civil nature and an adjudication regarding the same requires a detailed consideration of the facts and therefore, this Court cannot adjudicate the issues raised in this writ petition. In the counter affidavit it is further urged that the complaint raised in Ext.P2 dtd. 16/7/2012 is that, about 15 years before the date of Ext.P2, earth was removed from the adjacent property, by the prior owner, who is the 3rd respondent herein, causing loss of lateral support for the pathway, claimed to be used by the petitioner. It is further stated that Ext.P1 series of photographs produced by the petitioner are misleading and in the said photographs it can be seen that a house is now under construction in the property shown therein, and the said house is constructed by one Sri. T. S. John, who is not even a party to the present proceedings and in the same time, the petitioner has not produced any photographs regarding the alleged pathway. It is also submitted that the 4th respondent has purchased 30 cents of land in Re.Sy.No.190/9 of Omalloor Village on 27/8/2001 as per Ext.R4(a) sale deed. It is submitted that the removal of earth and leveling of the plot was done during the year 1998-1999, and to the best of the knowledge of this respondent, the same was not objected to by the petitioner during the period when the said work was executed. It is evident from Exts.P2, P6 and P7 that the soil/earth was removed about 15 years ago. The attempt of the petitioner is only to curtail the sale of the property by the 4th respondent and Ext.P2 complaint has been filed with an intention to ward off the prospective buyers and it appears that the petitioner is having an eye over the property and he is trying to arm-twist the 4th respondent to sell the property to him at a throw away price. The endorsement in Ext.P3 was 'to instruct the land owners to construct the retaining wall'. The 4th respondent submits that the said order was issued even without notice to him. The District Collector, Alappuzha, who has since been transferred from Pathanamthitta, has absolutely no authority or competence to issue the so called clarification as is seen in Ext.P5.