Allowed

Yashodha v. the State of Kerala

Kerala HC12 Aug 2021WP(C)/4761/2021

Case brief

AI extract

What is this about?

In this public interest matter, the Court addressed the failure of authority to implement an order directing the construction of a retaining wall. The petitioners filed for the implementation of Ex.P3 order. The Court held that authorities must act under Section 141 CrPC and directed the competent respondent to implement the order forthwith.

What did the court decide?

Directed the competent authority among the respondents to implement Ext.P3 order forthwith in accordance with Section 141 of the Code of Criminal Procedure.

Yashodha Vs the State of Kerala — Writ and Judicial Review | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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THURSDAY, THE 12^TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943

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WP(C) NO. 4761 OF 2021

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PETITIONERS:

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1 YASHODHA, D/O. KUNJUKUNJU, GIREESH VILASAM, PULIYOORKONAM P.O., VARKALA, THIRUVANANTHAPURAM 695 604.

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2 JALAJA, D/O YASHODHA, GIREESH VILASAM, PULIYOORKONAM P.O., VARKALA, THIRUVANANTHAPURAM 695 604. BY ADVS.

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V.B.PREMACHANDRAN SRI.K.P.SREEKUMAR SRI.S.MADHAVAN NAIR

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RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.

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2 DISTRICT COLLECTOR, THIRUVANANTHAPURAM, COLLECTORATE, 2ND FLOOR CIVIL STATION BUILDING, CIVIL STATION ROAD, KUDAPPANAKUNNU P.O., THIRUVANANTHAPURAM 695 043.

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3 SUB DIVISIONAL MAGISTRATE (I/C), OFFICE OF SUB DIVISIONAL MAGISTRATE, CIVIL STATION ROAD, KUDAPPANAKUNNU, PEROORKADA P.O., THIRUVANANTHAPURAM 695 005.

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W.P.(C) No.4761 of 2021

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4 TAHSILDAR AND EXECUTIVE MAGISTRATE, TALUK OFFICE, VARKALA, VARKALA P.O., THIRUVANANTHAPURAM 695 141.

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5 VILLAGE OFFICER, VILLAGE OFFICE, MADAVOOR, MADAVOOR P.O. THIRUVANANTHAPURAM 695 602.

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6 BIJU, BIJU VILASAM, PULIYOORKONAM P.O., VARKALA, THIRUVANANTHAPURAM 695 604.

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SRI.SARIN PANICKER - R6 SMT.PRINCY XAVIER GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.4761 of 2021

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P.B.SURESH KUMAR, J.

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W.P.(C) No.4761 of 2021

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Dated this the 12^th day of August, 2021.

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J U D G M E N T

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The first petitioner is a widow aged 69 years. The second petitioner is the daughter of the first petitioner. The first petitioner is residing in a building on a land measuring 7 cents owned by the second petitioner. The sixth respondent is the owner of the property situated on the south eastern side of the land of the second petitioner. It is stated by the petitioners that the sixth respondent has removed soil at a depth of 5 feet from his land lying adjoining to the land of the second petitioner for the purpose of constructing a building. Though the soil has been removed by the sixth respondent with the permission of

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W.P.(C) No.4761 of 2021

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the petitioners, it is stated by the petitioners that the permission aforesaid was based on an assurance given by the sixth respondent that he will construct a retaining wall to protect the land of the second petitioner. It is alleged by the petitioners that the sixth respondent has not constructed the retaining wall as assured by him and consequently, the land of the second petitioner was subjected to land sliding during rainy season. It is also alleged by the petitioners that the land sliding in the said land in course of time has posed threat to the existence of the building of the second petitioner where the first petitioner is residing. The first petitioner, in the circumstances, initiated proceeding before the third respondent under Section 133 of the Code of Criminal Procedure (the Code) and obtained Ext.P2 conditional order directing the sixth respondent to construct a retaining wall on the boundary of his land to avert the danger to the land and building of the second petitioner. Ext.P2 order has been affirmed by the fourth respondent in

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W.P.(C) No.4761 of 2021

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terms of Ext.P3 order under Section 138(2) of the Code after hearing the sixth respondent. It is alleged by the petitioners that the direction contained in Exts.P2 and P3 orders however, have not been complied with by the sixth respondent. The first petitioner, therefore, preferred Ext.P4 representation to the third respondent seeking appropriate steps for implementation of Exts.P2 and P3 orders. Ext.P4 representation has been filed on 24.11.2020. The writ petition is instituted alleging that Ext.P4 representation is not being acted upon by the respondents. The petitioners, therefore, seek appropriate directions to respondents 2 to 5 to give effect to Ext.P3 order.

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Heard the learned counsel for the petitioners as also the learned Government Pleader.

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As noted, Ext.P3 is an order passed by the competent authority confirming a conditional order passed under Section 133(1) of the Code, invoking the power under Section 138(2) of the Code. Sub Section (1) of Section 141 of

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W.P.(C) No.4761 of 2021

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the Code provides that when an order has been made under Section 138 of the Code, the Magistrate shall give notice of the same to the person against whom the order was made, and shall further require him to perform the act directed by the order within a time to be fixed in the notice, and inform him that, in case of disobedience, he will be liable to the penalty provided by Section 188 of the Indian Penal Code. Sub Section (2) of Section 141 provided that if the act directed in terms of the notice under Sub Section (1) of Section 141 is not performed within the time stipulated, the Magistrate may cause the act to be performed and may recover the costs of performing it from the person concerned. In the light of the aforesaid provisions, it is clear that if a conditional order issued under Section 133(1) of the Code, and affirmed under 138(2) of the Code is not complied with, it is the duty of the competent authority under the Code to cause the direction to be performed. Needless to say, the inaction on the part of the

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W.P.(C) No.4761 of 2021

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respondents in acting upon Ext.P4 representation preferred by the first petitioner is unjustified.

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In the result, the writ petition is allowed and the competent among the respondents is directed to implement Ext.P3 order as provided for under Section 141 of the Code forthwith.

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P.B.SURESH KUMAR, JUDGE.

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rkj

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W.P.(C) No.4761 of 2021

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APPENDIX OF WP(C) 4761/2021

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE PETITION DATED NIL SUBMITTED BY PETITIONERS BEFORE THE 2ND RESPONDENT. EXHIBIT P2 TRUE COPY OF THE ORDER NO. M.C. 137/19 DATED 9.12.2019 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P3 TRUE COPY OF THE ORDER NO. C3-3801/2019 DATED 27.7.2020 ISSUED BY THE 4TH RESPONDENT TAHSILDAR, AND EXECUTIVE MAGISTRATE. EXHIBIT P4 TRUE COPY OF THE PETITION DATED 24.11.2020 SUBMITTED BY PETITIONERS BEFORE THE 3RD RESPONDENT.

Yashodha v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Yashodha v. the State of Kerala

Case brief

What is this about?

What did the court decide?

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