BY AD v. SRI E.S.SANEEJ

BY ADVS. SRI ABRAHAM P.MEACHINKARA SRI S.MURALI SRI.CYRIAC KURIAN, SPL.GP. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.12.2023, THE COURT ON 08.01.2024 DELIVERED THE FOLLOWING: W.P.(C)No.2371 of 2022 3 T.R. RAVI, J. -------------------------------------------- W.P.(C)No.2371 of 2022 -------------------------------------------- Dated this the 8th day of January, 2024 JUDGMENT The writ petition has been filed praying for a direction to respondents 2 and 4 to consider and pass orders on Exts.P7 and P8 representations for removing illegal construction made by the 7th respondent upon a canal and for a further direction to respondents 2, 4 and 5 to ensure free flow of water through the canal without obstruction by the 7th respondent. There have been several writ petitions by the petitioners and the contesting respondents, and the facts leading to this writ petition are stated below:

2. The 7th respondent owns 30 cents of property in Kizhakkambalam Village. The branch canal of the Periyar Valley Irrigation Project (PVIP for short) passes through the northern side of the 7th respondent’s property. According to the 7th respondent, the water was flowing through a small channel in his property and a sluice was put in place to regulate the flow. Alleging that some persons in the locality had destroyed the shutter on 18.03.2020, causing the water to flow into the W.P.(C)No.2371 of 2022 4 property of the 7th respondent, the 7th respondent approached this Court by filing W.P.(C) No.13343 of 2020. The 7th respondent had also approached the 5th respondent, who had issued an Ext.P1 communication dated 10.06.2020 to the Assistant Executive Engineer, PVIP, Perumbavoor (4th respondent), directing him to restore the shutter and avoid the flow of water into the property of the 7th respondent. On

14.01.2021, by Ext.P2 judgment, this Court closed the writ petition W.P(C) No.13343 of 2020, noting that the damaged sluice has been replaced and no further reliefs were required to be granted in the writ petition. The 5th petitioner was the 9th respondent in W.P(C) No.13343 of 2020. This Court had also noted that the statement filed on behalf of the Executive Engineer, PVIP, showed that the grievance of the additional respondents in the said writ petition had already been addressed.

3. The 4th respondent on 10.03.2021 issued Ext.P3 notice to the 7th respondent alleging that the 7th respondent was indulging in construction activities on the Kada Canal and that the same should be removed and the Kada Canal restored to its original position. Ext.P3 notice was challenged by the 7 th respondent in W.P.(C) No.7146 of 2021. This Court, by an W.P.(C)No.2371 of 2022 5 interim order, stayed Ext.P3 notice. The 1st petitioner and certain others filed W.P.(C) No.7361 of 2021 for a direction to the 4th respondent to remove the obstruction caused by the 7th respondent and his father and for a direction to the PVIP authorities to consider a representation that had been filed by the petitioners therein.

4. According to the 7th respondent, on 23.03.2021, about 29 people trespassed into his property and started digging a canal. It is stated that the 7th respondent filed a police complaint. The 7th respondent thereafter approached this Court by filing W.P.(C) No.8358 of 2021, seeking police protection for his life and property and for a direction to the President of the Kizhakkambalam Grama Panchayat not to interfere with the property rights of the 7th respondent. W.P.(C) No.8358 of 2021 was disposed of by this Court by Ext.R7(a) judgment dated 04.05.2021 directing the 7th respondent to submit a proposal before the Grama Panchayat with a sketch of his property, demarcating the line through which pipelines can be drawn by the Panchayat and the extent of the property required for the same and giving his assent to surrender the land for laying the pipeline. The Panchayat was directed to decide on the proposal to be submitted by the 7th respondent W.P.(C)No.2371 of 2022 6 and to implement it within six months. There was a further direction to the Police to ensure that no law and order problem arises till a decision is taken by the Panchayat on the above issue. The petitioners were respondents 7,15,17,19 and 26 in W.P.(C) No.8358 of 2021. On 09.06.2021, the 6th respondent issued Ext.R7(b) letter to the 7th respondent directing him to surrender the land as per the proposal after measuring the property to be surrendered with the help of the Taluk Surveyor. The Taluk Surveyor took steps to measure the property and prepared a sketch, as can be seen from Exts.R7(c) dated

01.07.2021 and R7(d) dated 09.07.2021. Exts.R7(e) and R7(f) are the consent letters given by the 7th respondent’s father, as required. The 7th respondent had approached the Executive Magistrate (Tahsildar, Kunnathunadu) and the Executive Magistrate had issued Ext.R7(g) order dated 04.08.2021 directing the Executive Engineer, PVIP and the 6th respondent to fill up the existing canal as per the survey sketch of the Taluk Surveyor dated 09.07.2021 within seven days and to appear before the court of the Executive Magistrate on

24.08.2021 to show cause why the order should not be enforced. There was also a direction to complete the work of laying pipelines at the cost of the Panchayat in the surrendered W.P.(C)No.2371 of 2022 7 land. On 01.09.2021, the Executive Magistrate issued further orders, making the order Ext.R7(g) absolute. The order Ext.R7(h) was challenged in a revision before the 2nd respondent, and the 2nd respondent, by Ext.R3(f) letter dated

25.09.2021, informed the Executive Engineer, PVIP that a revision is not maintainable against an order under Section 141 of Cr.PC. and that the remedy is to approach the Court of Sessions as provided for in Section 297 of the Cr.PC.

5. The 6th respondent, Panchayat, has filed I.A.Nos. 6 and 7 of 2021 in W.P.(C)No.8358 of 2021 seeking a modification of the judgment. The said applications were dismissed by R7(k) order dated 12.11.2021.

6. Writ petition Nos.7146 of 2021 and 7361 of 2021 thereafter came up for hearing on 18.11.2021. By Ext.P4 judgment, this Court disposed of W.P.(C) No.7146 of 2021 permitting the 7th respondent to file an appeal against Ext.P3 and directed the appellate authority to consider the maintainability of the appeal as well as the stay petition. On the same day by Ext.P5 judgment, W.P.(C) No.7361 of 2021 filed by the 1st petitioner and some others was also disposed of with the observation that if constructions made by the 7th respondent and his father are illegal, the PVIP authorities are W.P.(C)No.2371 of 2022 8 free to take appropriate action, if there are no prohibitory orders from any other statutory authorities. On 22.11.2021 the Executive Magistrate directed implementation of the directions already issued for filling up the canal dug through the property of the 7th respondent as per the sketch prepared by the Taluk Surveyor and it is stated that the order has already been implemented. Exts.P7 and P8 representations have been submitted by the petitioners after the above incidents. The contention of the petitioners is that the local people were not made parties in the proceedings before the Executive Magistrate and hence the entire proceedings are bad. In the counter affidavit filed by the 7th respondent, it has been pointed out that even though the petitioners were parties to the proceedings before this Court in the earlier writ petitions, this writ petition has been filed without disclosing Exts.R7(g), R7(h) and R7(i) and for the said reason itself, the writ petition is liable to be dismissed.

7. A counter affidavit has been filed on behalf of the 3rd and 4th respondents contending that Ext.P3 notice dated

10.03.2021 has not been effectively challenged and that it can be seen from Ext.P4 judgment that the 7th respondent had withdrawn the writ petition filed by him with liberty to pursue W.P.(C)No.2371 of 2022 9 his remedy in appeal. It is also submitted that a revision petition has been filed against the order of the Executive Magistrate with delay of 296 days.

8. The Standing Counsel for the 6th respondent argues that they had earlier agreed to an order wrongly, and the 7th respondent could not have unilaterally decided on the width of the canal. It is submitted that the Kada Canal has existed since 1972 and benefits hundreds of families. It is also contended that the Executive Magistrate’s order is void ab initio and that the Panchayat has also challenged the Magistrate’s order. It is further contended that a pipeline cannot be put up and that the only solution is for an open canal. It is hence submitted that the canal, as it existed earlier, should be restored.

9. The counsel for the 7th respondent submitted that the proceedings have actually culminated in the execution of the order of the Executive Magistrate, and as at present, no grievance can be put forward, and no fresh right can be created by submitting representations. It is submitted that the judgments of this Court have become final, and they have not been challenged in any proceedings. It is also submitted that a judgment based on consent cannot even be appealed against, and as such, the submission on behalf of the Panchayat that W.P.(C)No.2371 of 2022 10 the earlier consent was wrongly given cannot be legally sustained. The counsel also referred to paragraph 10 of the counter affidavit filed by the 3rd respondent, wherein it is stated that the 3rd respondent was not aware of the surrender of land by the 7th respondent for laying the pipeline and if the land had been surrendered to the Tahsildar it was upto the Panchayat to take a decision in that regard.

10. I have considered the pleadings on record and the arguments advanced by the counsel on either side. The facts as they emerge clearly show that this Court had, in Ext.R7 (a) judgment, permitted the 7th respondent to make a proposal to the Grama panchayat for the purpose of drawing a pipeline, and the Panchayat was also directed to take a decision and to implement the same. The Panchayat had, pursuant to the judgment, directed the 7th respondent to surrender the land as required in the sketch prepared through the Taluk Surveyor. The contention now put forward that consent was given due to a mistake cannot hence be countenanced since the Panchayat had taken further steps based on the judgment of this Court and the consent given before this court. It is also evident that the orders of the Executive Magistrate for filling up the canal, which had been dug through the 7th respondent’s property, W.P.(C)No.2371 of 2022 11 have been executed. Exts.P7 and P8 have been preferred before the 2nd respondent and the 4th respondent. Neither of the representations are statutory in nature, and the reliefs prayed for in the representations are likely to interfere with the action taken by the Executive Magistrate as well as Exts.R7(a) judgment of this Court. As such, the directions sought for in the writ petition for disposal of Exts.P7 and P8 representations cannot be granted.

11. In the above circumstances, the writ petition is dismissed. However, since it is contended by the 3rd respondent and the 6th respondent that the orders of the Executive Magistrate have been challenged, it is made clear that this judgment will not in any manner affect the consideration of the said challenges by the concerned authorities, in accordance with the law. Sd/-- T.R. RAVI JUDGE W.P.(C)No.2371 of 2022 12 APPENDIX OF WP(C) 2371/2022 PETITIONERS’ EXHIBITS EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 EXHIBIT P8 TRUE PHOTOCOPY OF THE ORDER OF THE 5TH RESPONDENT DATED 10.06.2020. TRUE PHOTOCOPY OF THE JUDGMENT IN WPC 13343/2020 DATED 14.01.2021. TRUE PHOTOCOPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT TO THE 7TH RESPONDENT DATED 10.03.2021. TRUE PHOTOCOPY OF THE JUDGMENT IN WPC NO.7146/2021 DATED 18.11.2021. TRUE PHOTOCOPY OF THE JUDGMENT IN WPC 7361/2021 DATED 18.11.2021. PHOTOGRAPHS OF THE CANAL FILLED BY THE 7TH RESPONDENT. TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED BEFORE THE 2ND RESPONDENT DATED 14.01.2022. TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED BEFORE THE 4TH RESPONDENT DATED 14.01.2022. RESPONDENTS’ EXHIBITS EXHIBIT R3 (A) JUDGMENT IN WPC 13343/2020 DATED 14.01.2021. EXHIBIT R3 (B) JUDGMENT IN WPC 8358/2021 DATED 4.05.2021. EXHIBIT R3 (C) ORDER NO: B4-7079/21 DATED 4.08.2021. EXHIBIT R3 (D) REPLY DATED 24.08.2021. EXHIBIT R3 (E) ORDER NO. BA-1079/2021 DATED 1.09.02021. W.P.(C)No.2371 of 2022 13 EXHIBIT R3 (F) ORDER NO. DCEKM/7553/2021 DATED 25.09.2021. EXHIBIT R7(A) TRUE PHOTOCOPY OF THE JUDGMENT IN W.P. (C) NO.8358/2021 (T) DATED 4.5.2021. EXHIBIT R7(B) EXHIBIT R7(C) EXHIBIT R7(D) EXHIBIT R7(E) EXHIBIT R7(F) EXHIBIT R7(G) EXHIBIT R7(H) EXHIBIT R7(I) TRUE PHOTOCOPY OF THE LETTER SENT BY 6TH RESPONDENT NO.C4-4142/2021 DATED 9.6.2021 TO 7TH RESPONDENT. TRUE PHOTOCOPY OF NOTICE IN FORM NO.12 NO.C6-5953/21 DATED 1.7.2021 ISSUED BY TALUK SURVEYOR TO SYED MUHAMED, FATHER OF SAIFUDEEN. TRUE PHOTOCOPY OF THE SURVEY SKETCH PREPARED BY TALUK SURVEYOR DATED 9.7.2021. TRUE PHOTOCOPY OF THE CONSENT SIGNED BEFORE TALUK SURVEYOR IN THE PRESENCE OF SUB INSPECTOR, THADIYITTAPARAMBA POLICE STATION DATED 7.7.2021. TRUE PHOTOCOPY OF THE CONSENT TO SURRENDER THE LAND REQUIRED FOR LAYING PIPES IN COMPLIANCE WITH JUDGMENT IN W.P.(C)NO.8358/2021 DATED 4.5.2021. TRUE PHOTOCOPY OF THE ORDER OF THE EXECUTIVE MAGISTRATE, KUNNATHUNADU NO.B4-7079/21 DATED 4.8.2021 UNDER SECTION 133 OF THE CODE OF CRIMINAL PROCEDURE. TRUE PHOTOCOPY OF THE ORDER OF EXECUTIVE MAGISTRATE, KUNNATHUNADU NO.B4-1079/2021 DATED 1.9.2021 UNDER SECTION 141 OF THE CODE OF CRIMINAL PROCEDURE. TRUE PHOTOCOPY OF THE ORDER OF THE EXECUTIVE MAGISTRATE, KUNNATHUNADU UNDER SECTION 141 OF THE CODE OF CRIMINAL PROCEDURE WITH SKETCH PREPARED BY TALUK SURVEYOR ORDER DATED 22.11.2021. W.P.(C)No.2371 of 2022 14 EXHIBIT R7(J) EXHIBIT R7(K) TRUE PHOTOCOPY OF THE AERIAL SCHEMATIC SKETCH OF THE CANAL PORTION INVOLVING PROPERTIES. TRUE PHOTOCOPY OF THE ORDER IN I.A.NO.6/2021 AND I.A.NO.7/2021 IN W.P. (C) NO.8358/2021 DATED 12.11.2021.