IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 WP(C).No. 2832 of 2011(D) ------------------------- PETITIONER: --------------- PANTHALANCHERRY KUNHAMMED, S/O.LATE AYAMU HAJI, PANTHALANCHERRY, CHAKKALAKUNNU, KUZHIMANNA P.O., MALAPPURAM. BY ADV. SRI.SAJU.S.A RESPONDENTS: --------------- 1. THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, PERINTHALMANNA, MALAPPURAM, PIN - 673 643. 2. MOIDEEN MOHAMMED, KOLOTH MOOTHEDATH, KUZHIMANNA P.O., MALAPPURAM, PIN - 673 641. 3. CHANDRAN, S/O.VELAYUDHAN MOOTHEDATH, KUZHIMANNA P.O., MALAPPURAM, PIN - 673 641. 4. THE VILLAGE OFFICER, VILLAGE OFFICE, KUZHIMANNA, MALAPPURAM, PIN - 673 641. BY SR. GOVERNMENT PLEADER ADV. MR. P. NARAYANAN. R3 BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN SRI.JOSEPH GEORGE(MULLAKKARIYIL) SRI.K.RATHISH KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2832 of 2011(D) APPENDIX PETITIONER'S EXHIBITS: EXT.,P1 : TRUE COPY OF THE NOTICE NO. G.5547/2010 ISSUED BY THE FIRST R ESPONDNET TO THE PETITIONER EXT.P2 : TRUE COPY OF THE ORDER DATED 15.12.2010 PASSED BY THE FIRST RESPONDENT. EXT.P3 : TRUE COPY OF THE REPORT FILED BY THE 4TH RESPONDENT dated 19.09.2 009 BEFORE THE 1ST RESPONDENT. RESPONDENTS' EXHIBITS: EXT.R3(b) : TRUE COPY OF THE REPORT DAT3ED 10.03.2011 ALONG WITH A SKEKTCH SUBMITTED BY THE ADVOCATE COMMISSIONER. /TRUE COPY/ P.S. TO JUDGE. P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C)No. 2832 OF 2011 ......................................................................... Dated this the 7th June , 2011 J U D G M E N T The petitioner is challenging Ext. P2 order passed by the first respondent whereby some interference has been made with regard to the alleged use of the pathway and the petitioner has been directed not to intercept with the use of the same by the third respondent herein, who was the complainant before the first respondent. 2. The sequence of events as narrated in the writ petition shows that the petitioner is the owner of the property in question and the third respondent allegedly sought to establish a right of way through the middle of the property of the petitioner for which, he approached the Chief Minister by filing a complaint projecting the grievance, which in turn was forwarded to the first respondent, who considered the same and passed Ext. P2 order. The petitioner challenged Ext. P2 on many a ground, legal as well W.P.(C)No. 2832 OF 2011 2 as factual . 3. Pursuant to the notice served to the third respondent, a counter affidavit has been filed before this Court stating that the concerned pathway is the only access for the third respondent and others concerned, which was sought to be closed by the writ petitioner, which necessitated filing of the proceedings before the Chief Minister, leading to Ext. P2 order passed by the first respondent. It is also stated that the first respondent is having ample powers under section 133 Cr.P.C. to have passed orders like Ext. P2. 4. Some additional documents were sought to be produced by the petitioner by way of Ext. P3 along with I.A. No. 6349 of 2011 and so also by the third respondent, as Ext. R3(b) report dated 10.03.2011 submitted along with the sketch by the Advocate Commissioner appointed by the Civil Court in O.S.No.76 of 2011,. which is stated as pending. 5. After hearing both the sides, this Court finds that the issue with regard to right of way is pending consideration before the Sub Court, Manjeri in O.S.No. 76 of 2011 preferred by the W.P.(C)No. 2832 OF 2011 3 third respondent against the writ petitioner and some others concerned. It is also stated that eventhough the third respondent, one among the plaintiff therein, had moved the civil court for interim relief for removing obstruction caused at the instance of the writ petitioner, no interim relief has been granted in view of pendency of the above writ petition. 6. Going by the materials on record, it is not discernible as to the authority of the first respondent for having passed Ext. P2 order. If the same is under Section 133 Cr.P.C., obviously it is not a provisional order and hence not sustainable. 7. In any view of the matter, this Court does not propose to go into the merits of the case, particularly with regard to rival pleadings . As the issue is pending before the competent civil court (Sub Court, Manjeri) by filing O.S.No. 76 of 2011 and also an interlocutory application for interim relief, this Court does not find it necessary to pass any order in either way, but for declining interference in the writ petition and observing that the rights and liberties of the parties concerned could be sought to be agitated in the civil suit, which is pending consideration before the said W.P.(C)No. 2832 OF 2011 4 court. The writ petition is dismissed. P.R. RAMACHANDRA MENON, JUDGE. lk