IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 Crl.Rev.Pet.No. 1425 of 2008() ------------------------------ MC.14/2007 of Sub Divisional Magistrate Devicolam .................... REVN. PETITIONER: COUNTER REVISION PETITIONER ----------------------------------------------------------- ELDHOSE, S/O.MATHAI, AGED 42 YEARS, ORAVALAKUDI HOUSE, ANAVIRATTY KARA, IDUKKI DISTRICT. BY ADV. SRI.N.M.VARGHESE SRI.ROY THOMAS RESPONDENTS: REVISION PETITIONERS/STATE-FORMAL PARTY ---------------------------------------------------- 1. T.J.JOY, THELLINYANKKAL HOUSE, ANAVIRATTY P.O., IDUKKI DISTRICT. 2. K.J.KURIACHAN, KUNNUMPURATH HOUSE, ANAVIRATTY P.O., IDUKKI DISTRICT. 3. V.J.MOHANAN, VAZHAPARAMBIL HOUSE, ANAVIRATTY P.O., IDUKKI DISTRICT. 4. K.P.JOSE, KAYIKKAKUDI HOUSE, ANAVIRATTY P.O., IDUKKI DISTRICT. 5. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.K.K.JOHN FOR R1,2,4 BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ====================================== CRL.R.P. NO. 1425 OF 2008 ====================================== Dated this the 11th day of June 2008 ORDER Heard both sides. 2. The revision petitioner who was the counter petitioner in M.C.No.14/2007 on the file of the Sub Divisional Magistrate, Devicolam, challenges the final order dated 3.1.2008 passed by the Sub Divisional Magistrate. 3. The revision petitioner - Eldhose @ Kunjumon is the uncle of one Mahesh Varkey, who has an item of property situated at Anaviratty in Vellathooval Village bounded on the west by a Panchayat road and on the south by a big water channel for the drainage of water. Since the said Mahesh Varkey is stated to be abroad, the revision petitioner is looking after the said property on behalf of his nephew. The eastern boundary of the said property is the property of T.J.Joy, the first respondent herein and the said property does not extend CRL.R.P.1425 of 2008 2 southwards upto the big water channel. In between the property of T.J.Joy and the southern water channel is the property of the 4th respondent, K.P.Jose Kayikkakudi. Immediately to the east of the property of the first respondent – T.J.Joy is the property of the second respondent – K.J.Kuriachan. The common northern boundary of the property of Mahesh Varkey, T.J.Joy and K.J.Kuriachan is the Adimaly-Munnar National Highway called N.H.49. There is no dispute that the lie of the land is such that it slopes towards south or south - west. 4. On 15.5.2007, respondents 1, 2 and 4 herein and one V.J.Mohanan moved the Sub Divisional Magistrate, Devikulam alleging that a thodu which proceeds from the National Highway southwards and turns westwards at the southern boundary of the first respondent’s property and passing through the property of Mahesh Varkey was obstructed by the revision petitioner, who is the uncle of Mahesh Varkey causing inundation of water and deposit of mud and silt in the property of the complainants. CRL.R.P.1425 of 2008 3 They also alleged that the said thodu was used for draining water for the last several years and the revision petitioner who is looking after the property of Mahesh Varkey had filled up portions of the thodu passing through the property of Mahesh Varkey by filling up the same with earth. They further alleged that during the monsoon season, excess water and silt came to be deposited in their property resulting in damage to the paddy cultivation. They, therefore, prayed for appropriate directions for redressel of their grievances. 5. The Sub Divisional Magistrate called for a report from the Village Officer Vellathooval. On 2.6.2007, the Village Officer, Vellathooval submitted a report to the following effect:- There is a thodu along the culvert, across the National Highway on the north. The said thodu is passing and passing in between the properties of T.J.Joy and K.J.Kuriachan and having a width of 1 metre is meant for draining rain water to the southern water canal. His CRL.R.P.1425 of 2008 4 enquiry with the neighbors revealed that the said thodu after passing southwards was passing through the property of the revision petitioners to eventually reach the southern water canal, situated about 200 meters away and on account of the blockage created by the revision petitioner, there was likelihood of collection of mud and earth and damage the paddy cultivation. The Field Measurement Book pertaining to re-survey does not show the existence of the thodu starting from the National Highway. But the enquiry conducted by him revealed that the thodu, as alleged by the complainants, was in existence for the past 40 years and the water channel which was obstructed by the revision petitioner has to be restored to its original condition. On discussing the matter with the revision petitioner and the complainants, the revision petitioner had objected to the carriage of water through his property but had agreed to construct a new thodu along his eastern boundary so as to reach the southern water canal. CRL.R.P.1425 of 2008 5 6. On 27.6.2007, the Sub Divisional Magistrate passed a conditional order under Section 133 Cr.P.C. directing the revision petitioner to remove the obstruction caused to the free flow of rain water by blocking the thodu passing through his property and by diverting the course of the water channel and directing the revision petitioner to restore the water channel to its original position or to appear before the Sub Divisional Magistrate on 12.7.2007 and show cause why the conditional order should not be made absolute. Thereafter the Sub Divisional Magistrate, as per the impugned order dated 3.1.2008 made the conditional order absolute, after taking note of the pendency of a suit filed by the revision petitioner as O.S.111 of 2007 before the Munsiff Court, Devikulam and after adverting to the statement of witnesses, by name, Shaji, Regi, Anil Kumar and that of the Village Officer, Vellathooval. It is the said order which is assailed in this revision. 7. After hearing both sides and perusing the lower CRL.R.P.1425 of 2008 6 court records, I am of the view that if the impugned order is upheld, then it will have the effect of virtually cutting the property of the revision petitioner’s nephew into two segments which may render the property useless. As mentioned earlier, the revision petitioner’s property is bounded on the west by a Panchayat road and on the southern side by the main water canal into which the water collected in the National Highway which is at a higher level is said to eventually reach through the disputed thodu. While there is no dispute regarding that portion of the thodu which run southwards in between the properties of T.J.Joy and K.J.Kuriachan and reaching up to the southern boundary of the property of T.J.Joy, the dispute is really pertaining to the further course of the thodu running from east to west almost through the middle of the revision petitioner's property. According to the complainants, from the point where the said thodu touches the eastern boundary of the revision petitioner’s property, it was running westwards to reach CRL.R.P.1425 of 2008 7 the Panchayat road and then southwards to reach the southern water canal. According to the revision petitioner, there was no thodu passing through his property allowing water to be drained into the southern water canal. But the revision petitioner had made an undertaking before the Village Officer at the time of his inspection, that he is willing to construct a thodu from the point where the existing thodu touches his eastern boundary, up to the southern water canal along his eastern boundary. Unfortunately, this aspect of the matter has not been gone into by the Sub Divisional Magistrate, who has also not explored the possibility of draining water to the southern water canal along the eastern boundary of the revision petitioner’s property. In case the course of the existing thodu could be directed to the southern water canal through the eastern boundary of the revision petitioner’s property, that may abate the nuisance alleged by the respondents 1 to 4. That is certainly a possible alignment which can cause CRL.R.P.1425 of 2008 8 least hardship and inconvenience to all the parties. If the problem of inundation of water and collection of earth on account of the blockage at the disputed point could be got over by extending the thodu along with the eastern boundary of the revision petitioner's property, that will certainly solve the problem faced by the respondents 1 to 4 herein. Such an alternative alignment can allay the heartburn caused to the revision petitioner also. I, therefore, set aside the final order dated 3.1.2008 passed by the Sub Divisional Magistrate and remit the matter to the Sub Divisional Magistrate to explore the possibilities of the aforementioned or any other alternate alignment which may cause the least inconvenience to either parties. In case after considering the topography of the land, water could be drained through the aforementioned or any other alternate alignment, that can be the best possible solution to this problem. Both the parties shall adduce evidence to show whether the above alternate course could be adopted so that there is CRL.R.P.1425 of 2008 9 no heartburn for either side. The sub Divisional Magistrate shall call for a report from the Village Officer during the ensuing monsoon and may also conduct a local inspection, if necessary. The Revision Petition is allowed as above. V.RAMKUMAR, JUDGE css/