Petitioner sought to quash an order under Section 133 Cr.P.C. and remove a barbed wire fence. The 1st respondent's counter affidavit stated the matter was set on merits, a conditional order was modified, and the fence was already removed, so no action is proposed. The Court dismissed the writ petition.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY, THE 11TH DAY OF DECEMBER 2015/20TH AGRAHAYANA, 1937
WP(C).No. 3078 of 2012 (H)
PETITIONER :
ROSAMMA ABRAHAM, AGED 83 YEARS, W/O.LATE ABRAHAM, THAYYILAYA NEDUMPARAMBIL HOUSE, KUMARAKOM P.O., KOTTAYAM - 686563.
BY ADVS.SRI.T.C.SURESH MENON
SRI.I.DINESH MENON
RESPONDENTS :
R2 BY ADV. SRI.T.A.SHAJI
R1 BY GOVERNMENT PLEADER SRI.RAFEEK.V.K.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-12-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 3078 of 2012 (H)
APPENDIX
PETITIONER'S EXHIBITS :-
RESPONDENTS' EXHIBITS :- NIL.
True copy
P.A to Judge
ANIL K.NARENDRAN, J.
W.P.(C)No.3078 of 2012
Dated this the 11th day of December, 2015
JUDGMENT
The petitioner, who is the owner of a small extent of land in Kumarakom Village, has approached this Court in this Writ Petition seeking a writ of certiorari to quash Ext.P3 order passed by the 1st respondent in exercise of his powers under Section 133 of Cr.P.C. and seeking a writ of mandamus commanding the 1st respondent to reconsider the matter on merit after affording the petitioner a reasonable opportunity
of being heard. The petitioner has also sought for a writ of mandamus commanding the 1st respondent to remove barbed wire fence put up by the 4th respondent cutting off the entire access to her property.
“4. It is hereby submitted that on receipt of the reports submitted by the 3rd respondent in respect of the complaints filed by the petitioner as well as the 4th respondent, notices were issued to the petitioner and the 4th respondent. Both the parties appeared before the 1st respondent and after hearing a Conditional Order was issued, directing the petitioner and her son to dismantle the bund constructed across the water way and also directing the 4th respondent to remove the barbed wire
W.P.(C).No.3078 of 2012
2
fencing. The petitioner herein filed an objection by stating that she is not possessing any property at the disputed site. On further enquiry it was found that the petitioner is not possessing any property in the disputed area and the Conditional Order was modified and directed Mr.Jose A Thayyil to remove the bund. The 4th respondent removed the barbed wire fencing in obedience to the conditional order issued by the 1st respondent and if the above mentioned Jose A Thayyil failed to obey the Conditional order or failed to furnish proper explanation in respect of the non-implementation of the conditional order, necessary steps will be initiated for the issuance of a final order as provided under Section 138 of the Code of Criminal Procedure. Now the 1st respondent is not proposing any action against the petitioner Mrs.Rosamma Abraham. The barbed wire fencing put up by the 4th respondent was already removed.”
In view of the stand taken by the 1st respondent in paragraph 4 of the counter affidavit referred to above, nothing survives in this Writ Petition. Therefore the Writ Petition is dismissed.
Sd/- ANIL K.NARENDRAN, JUDGE
skj
True copy P.A to Judge
2 issues framed by the court
Whether the Writ Petition seeking quashing of the impugned order under Section 133 Cr.P.C. and mandamus for removal of barbed wire fences survives in view of the 1st respondent's counter affidavit.
Whether the petitioner has a right to proceed against the 4th respondent after the conditional order was modified and the barbed wire was removed.
2 provisions across 1 enactments
ROSAMMA ABRAHAM
THE SUB DIVISIONAL MAGISTRATE, MINI CIVIL STATION, KARAPUZHA
THE KUMARAKAM GRAMA PANCHAYATH
THE VILLAGE OFFICER, KUMARAKOM
SRI.P.N.SUGUNAN
ANIL K.NARENDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
