IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 WP(C).No. 21788 of 2010(W) ----------------------------------------- PETITIONER(S): ----------------------- K.O.AUGUSTINE,AGED 88 YEARS, KATTAKKAKATHUT,MOOZHIKULAM,KURUMASSERI(P.O), PARAKADAVU VILLAGE. BY ADV. SMT.C.S.SHEEJA RESPONDENT(S): ---------------------------- 1. THE SECRETARY,PARAKKADAVU GRAMA PANCHAYATH,KURUMASSERY.P.O,ERNAKULAM-683 579. 2. THE REVENUE DIVISIONAL OFFICER, FORT COCHIN. 3. JOY,S/O.CHERIYAN,THADIKKARAN HOUSE, KURUMASSERY.P.O,PARAKKADAVU-683 579. R1 BY ADVS. SRI.S.GOPINATHAN, SRI.JOHNSON ABRAHAM R2 BY GOVT. PLEADER SMT.N.SUDHA DEVI R3 BY ADV. SRI.PEEYUS A.KOTTAM SRI.C.R.SANISH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.21788/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. P2:- COPY OF THE ORDER DTD. 4.6.2009 OF THE 2ND RESPONDENT. P3:- COPY OF THE ORDER DTD. 18.6.2009 IN CRL. MC. 1946/2009. P4:- COPY OF THE OBJECTION DTD. 9.10.2009 GIVEN BY THE PETITIONER BEFORE 2ND RESPONDENT. P5:- COPY OF THE NOTICE DTD. 30.6.2010 ISSUED BY THE IST RESPONDENT. P6:- COPY OF THE ORDER DTD. 3.6.2010 ISSUED BY THE 2ND RESPONDENT. P7:- COPY OF THE PROCEEDINGS OF THE IST RESPONDENT DTD. 29.6.2010. P8:- COPY OF THE PROPERTY OF THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS R3:- COPY OF THE CONDITIONAL ORDER DTD. 7.9.2009 ISSUED BY SUB DIVISIONAL MAGISTRATE, FORT COCHIN UNDER SECTION 133 OF CRL. PC. 1973. R3(a):- COPY OF THE MINUTES NO.33 DTD. 28.7.07 PASSED BY IST RESPONDENT PANCHAYATH. R3(b):- COPY OF THE SHOWING THE LEI AND NATURE OF PROPERTIES OF PETITIONER AND THIS RESPONDENT. R3(c):- COPY OF THE SKETCH SHOWING THE SHAPE OF THE PROPERTIES OF PETITIONER AND RESPONDENT. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.21788/2010-W ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 11th day of August, 2010 J U D G M E N T The writ petition concerns an order passed by the second respondent, produced as Ext.P6 addressed to the Secretary of the Panchayat to take certain steps urgently. 2. Heard the learned counsel for the petitioner, learned counsel appearing for respondent Nos.1 and 3 and the learned Government Pleader. The matter was argued elaborately and the learned counsel for the third respondent submitted that in the light of the urgency of the situation, the order Ext.P6 has to be implemented. 3. The learned counsel for the petitioner submitted that the second respondent initiated proceedings under Section 133 of the Code of Criminal Procedure and a conditional order was passed as per Ext.R3 and the petitioner has already shown cause to the conditional order passed as per Ext.P4. It is pointed out that the petitioner had to approach this Court by filing Crl.M.C.No.1946/2009 against Ext.P2 order and this Court quashed Ext.P2 order finding that the same is not passed under any provisions of Code of Criminal Procedure. It is recorded in Ext.P3 that the Ext.P2 order was withdrawn and accordingly the Criminal M.C was disposed of. W.P.(C). No.21788/2010 -:2:- 4. Evidently, Ext.P6 is only a communication issued by the Revenue Divisional Officer to the Secretary of the Panchayat directing certain actions to be taken for the removal of mud etc. from the drainage in question, to provide smooth flow of water. The proceedings under Section 133 Cr.P.C is still pending and no final orders have been passed by the Executive Magistrate in terms of the provisions of the Code of Criminal Procedure. Ext.P6 evidently cannot be termed as an order passed invoking the provisions of the Code of Criminal Procedure, and it is only styled as a letter addressed to the Secretary of the Panchayat. 5. Learned counsel for the third respondent submitted that independent of Ext.P6, the Panchayat has taken a resolution Ext.P7 which is evident from the minutes and therefore, it is contended that the action of the Panchayat can be recognised in that manner. 6. A reading of Ext.P7 shows that no independent decision was taken by the Panchayat and they have only recorded the letter Ext.P6 of the Revenue Divisional Officer and decided to implement the same. Therefore, evidently, Ext.P6 being not one passed in terms of the provisions of the Code of Criminal Procedure, i.e. after proceeding under Section 137 and 138, the same cannot be W.P.(C). No.21788/2010 -:3:- supported. Therefore, Ext.P6 is quashed. Ext.P5 communication issued by the Panchayat relying upon Ext.P6 is also set aside. The second respondent will have to take evidence by examining the parties and witnesses, if any cited by the parties. The parties will be given all opportunity to adduce evidence and examine witnesses. The learned counsel for the third respondent submitted that in view of the urgency of the matter, a direction may be issued to the second respondent to expedite the proceedings and pass orders within a short time. There will be a direction to the second respondent to conclude the proceedings as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this Judgment. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) ms