IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 OP.No. 13308 of 2001(H) ---------------------------------- PETITIONERS: --------------------- 1. RAJAN, SON OF PAUL, SANKURIKKAL, ALATHOOR VILLAGE, MELADOOR, ANNAMANADA, MUKUNDAPURAM TALUK. 2. SHEEBA, WIFE OF RAJAN, SANKURIKKAL, ALATHOOR VILLAGE, MELADOOR, ANNAMANADA, MUKUNDAPURAM TALUK. BY ADVS. MR.T.K.VENUGOPALAN, MR.V.DEVAN. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT OF KERALA, INDUSTRIES (L) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, THRISSUR. 3. THE REVENUE DIVISIONAL OFFICER, THRISSUR. 4. PADMAVATHY AMMA, DAUGHTER OF JANAKI AMMA, CHUNGATH VEETTIL, ALATHOOR VILLAGE, MELADOOR, MUKUNDAPURAM TALUK. 5. MALATHY AMMA, DAUGHTER OF DEVAKI AMMA, CHUNGATH VEETTIL, ALATHOOR VILLAGE, KEEZHADOOR, MUKUNDAPURAM TALUK. R1 TO R3 BY GOVERNMENT PLEADER SMT. M.R. SREELATHA, R4 & R5 BY ADVS. MR.P.RADHAKRISHNAN, MR.MADHU RADHAKRISHNAN, MR.K.P.PADMAKUMAR. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 13308/2001-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER DTD. 10/06/1997, PASSED BY THE R.3. EXT.P.2: COPY OF THE ORDER DTD. 26/03/2000 PASSED BY THE R.2. EXT.P.3: COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONERS BEFORE THE R.1, DTD. 24/04/2000. EXT.P.4: COPY OF THE ORDER DTD. 03/03/2001 PASSED BY THE R.1. RESPONDENTS' EXHIBITS: EXT.R4.(1) SERIES: COPY OF THE COMPLAINTS FILED BY THE RESPONDENTS. EXT.R4.(2): COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT DTD. MAY 20, 1998. EXT.R4.(3): COPY OF THE PETITION FILED BEFORE THE SUB DIVISIONAL MAGISTRATE. EXT.R4.(A.A) & R4.(A.B): COPY OF THE SALE DEEDS ERECTED BY THE PETITION. //TRUE COPY// P.A. TO JUDGE. Prv. S.SIRI JAGAN, J. ------------------------- O.P No.13308 of 2001 -------------------------- Dated this the 5th January, 2010 J U D G M E N T Petitioners purchased an item of property in Sy. No.1172/3 of Alathoor village which property is adjacent to the properties belonging to respondents 4 and 5. The property was originally at a higher level from the road by about 30 feet. According to the petitioner, the entire land is barren and uncultivable. Petitioners are stated to have purchased the property for removing the soil and to make it suitable as a building site. Accordingly after purchasing the property, the petitioners removed the hard soil from the property. Petitioners would contend that the soil was taken from the petitioners' property leaving about 5 feet from the boundaries of the property of respondents 4 and 5, so that there would not be any likelihood of erosion of soil from the properties of respondents 4 and 5 or loss of lateral support to their properties. The fourth respondent filed O.S No.899/96 on 14.9.1996 against the petitioners and another for a mandatory injunction compelling the petitioners to construct a wall across the boundary of their properties to protect their lateral support to the O.P No.13308 of 2001 2 properties of respondents 4 and 5 and also claiming Rs.35,000/- by way of damages. This original petition was filed at a time when that suit was still pending. Respondents 4 and 5 filed complaints before the 3rd respondent alleging that due to removal of earth from the petitioners property, there is a danger of loss of lateral support to the property of respondents 4 and 5. On that complaint, the 3rd respondent passed Ext.P1 order purportedly under the Kerala Minor Mineral Concession Rules directing the petitioners to construct a protection wall and further directing the Tahasildar to initiate appropriate proceedings under the Kerala Minor Mineral Concession Rules. Petitioners challenged the same before the District Collector, who by Ext.P2 order repelled the challenge. Petitioner filed a further appeal to the Government which was rejected by Ext.P4 order. Petitioner is challenging Exts. P1, P2 and P4 orders in this original petition. 2. The primary contention of the petitioner is that Ext.P1 order has been passed without jurisdiction in so far as the same is purported to be passed under the Kerala O.P No.13308 of 2001 3 Minor Mineral Concession Rules, which Rules do not contemplate any powers on the Revenue Divisional Officer to pass an order like Ext.P1. 3. A counter affidavit has been filed on behalf of respondents 4 and 5 taking the contention that they have approached the Revenue Divisional Officer in view of the imminent danger that may be caused to their properties on account of the removal of the earth by the petitioners for which the Revenue Divisional Officer has ample powers under law. 4. A counter affidavit has been filed by the 1st respondent which apparently would tacitly admit that the Revenue Divisional Officer has no powers to pass orders like Ext.P1 under the Kerala Minor Mineral Concession Rules. 5. I have considered the rival contentions in detail. 6. Even the counsel for respondents 4 and 5 does not support Ext.P1 under the Kerala Minor Mineral Concession Rules. Their contention is that respondents 4 and 5 are not responsible for the Revenue Divisional Officer considering the complaint filed by respondents 4 O.P No.13308 of 2001 4 and 5 as a complaint under the Kerala Minor Mineral Concession Rules. Respondents 4 and 5 never invoked the powers of the Revenue Divisional Officer under the said Rules. But they approached the Revenue Divisional Officer only because of the imminent danger caused to their properties. Therefore, Ext.P1 should be construed as an order passed under Section 133 of the Criminal Procedure Code for which the R.D.O has ample power is the contention raised by the counsel. It is pointed out by the counsel for respondents 4 and 5 that Ext.P1 refers to a prohibitory order issued against the petitioners herein in respect of the unauthorised removal of earth which would go to show that the proceedings were not under the Kerala Minor Mineral Concession Rules but under the Criminal Procedure Code. But the 1st respondent does not support the same also. Even otherwise the proceedings under Section 133 of the Criminal Procedure Code has to be complied with while taking proceedings under that Section, which procedure contemplate a provisional order and later a final order. Prohibitory order mentioned in Ext.P1 cannot be a provisional order as such. In any event, since O.P No.13308 of 2001 5 a civil suit is pending in respect of the same subject matter, I do not think that Ext.P1 can be construed as an order under Section 133 of the Criminal Procedure Code as well. 7. Therefore, I am satisfied that Ext.P1 is clearly without jurisdiction. Accordingly, the same is quashed. Since Exts.P2 and P4 are dependent orders, they are also quashed. 8. In the original petition in paragraph 1, petitioners have stated thus: "The soil was taken from the petitioners' land only after leaving about 5 feet in width from the boundaries of the properties of respondents 4 and 5. So that there may not be any likelihood of erosion of soil from their property or loss of support to their property." This submission of the petitioners are recorded. Petitioners and their successors-in-interest shall be bound by the said submission of the petitioners and they shall see that status quo is maintained at all times. The original petition is allowed as above. S.SIRI JAGAN, JUDGE ma O.P No.13308 of 2001 6 O.P No.13308 of 2001 7