ELSIAMMA JACOB Vs. STATE OF KERALA

JUDGEMENT

(1.) The writ petition is preferred challenging Exts.P9 and P18 orders passed by the 3rd respondent, Revenue Divisional Officer, Chengannur, under the provisions of Ss. 133 and 138(2) of the Code of Criminal Procedure, 1973 ( for short 'Cr.P.C.'). The question to be decided is whether a writ petition under Article 226 is maintainable against an order passed under Ss. 133 and 138(2) Cr.P.C. The brief facts of the case are as follows.

(2.) Pursuant to a partition between the petitioner, the 9th respondent, and the husband of the 10th respondent, each received 9 cents of properties in re-survey No.388 and 388/3 of Chengannur Village, facing the Mavelikkara-Kozhencherry PWD road on the Northern side as a result of the partition suit as OS No.122/9 of Munsiff Court, Chengannur. It is contended that a natural water stream or channel has been in existence from time immemorial, commencing from the adjacent side of Metropolitan Nagar beneath the Puthenkavu-Perilassery road, and passing through various properties and finally reaching the southern side in Survey No.388/3 of Block No.8, where the properties of the 9th respondent, the petitioner and the 10th respondent exist. It is alleged that the said stream then turns along the western side of the 10th respondent's property, crosses a culvert on the Mavelikkara-Kozhencherry PWD road at Puthenkavu junction and ultimately reaches the Pamba River.

(3.) Being very influential, the 10th respondent, with the connivance of the 9th respondent, who is a ward member of Chenagnnur Municipality, had allegedly encroached the natural water stream. Then filled it with ordinary earth along with 9 cents of land on the eastern side of the water channel and the western side of the water stream/channel of the other property and constructed a wall. The above-mentioned act of the 10th respondent obstructed water flow from the higher area of the nearby locality towards the Pamba River. Against which the petitioner engaged in multiple levels of litigation and also preferred a representation before the 2nd respondent. Thereafter, on the basis of the report submitted by the Village Officer as per Ext.P6, the 2nd respondent directed the 3rd respondent to take appropriate action as per Ext.P7. Despite Ext.P6 report and the specific directions in Ext.P7, the 3rd respondent, allegedly in connivance with the 10th and 11th respondents, passed Ext.P9 whereby a direction was given to construct a new route for the water stream from the point at which it was blocked, to proceed along the western side of the property of the petitioner and eastern side of the property of the 10th respondent.