Allowed

Suresh Babu v. the Sub Divisional Magistrate, Palakkad

Kerala HC13 Mar 2024WP(C)/9040/2023

Case brief

AI extract

What is this about?

Petitioner challenged a Magistrate's order directing drain construction, claiming it violated his property rights. The Court allowed the writ order without setting aside the Magistrate's order but suspended its implementation until ownership was verified.

What did the court decide?

Writ petition allowed; Ext.P6 order not to be implemented until Sub Divisional Magistrate verifies property ownership and hears parties within two months.

Suresh Babu Vs the Sub Divisional Magistrate, Palakkad — Landlord and Tenant | Kerala HC (2024)

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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 DEVAN RAMACHANDRAN

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WEDNESDAY, THE 13TH DAY OF MARCH 2024 / 23RD PHALGUNA, 1945

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WP(C) NO. 9040 OF 2023

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PETITIONER:

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SURESH BABU, AGED 62 YEARS,
S/O. RAVEENDRAN, KUNNUKAD HOUSE,
THENKURISSI P.O, PALAKKAD DISTRICT, PIN – 678671.

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BY ADVS.
JACOB SEBASTIAN
WINSTON K.V
ANU JACOB
DIVYA R. NAIR

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RESPONDENTS:

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1 THE SUB DIVISIONAL MAGISTRATE, PALAKKAD, OFFICE OF THE REVENUE DIVISIONAL OFFICER, COLLEGE ROAD, PALAKKAD DISTRICT., PIN – 678001.

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2 THENKURISSI GRAMA PANCHAYAT, PANCHAYAT OFFICE, VILAYANNUR P.O, PALAKKAD DISTRICT,

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REPRESENTED BY ITS SECRETARY, PIN – 678671.

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3 ASWATHI, W/O. FEBIN, PROPRIETRIX, KUNNUKAD FUELS, KUNNUKAD HOUSE, THENKURISSI P.O, PALAKKAD DISTRICT, PIN – 678671.

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4 PREMALATHA, W/O. MUTHUMANI, KUNNUKAD, THENKURISSI P.O, PALAKKAD DISTRICT., PIN – 678671.

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5 BHARATH PETROLEUM CORPORATION LTD, REPRESENTED BY ITS TERRITORY MANAGER, FIRST FLOOR, KOCHI REFINERY BUILDING, AMBALAMUGAL, ERNAKULAM DISTRICT., PIN – 682303.

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BY ADVS.
DEEPU LAL MOHAN
SAJAN VARGHEESE K.
GOPIKRISHNAN NAMBIAR M
AISWARYA(K/001734/2022)
K.JOHN MATHAI(K/413/1984)
JOSON MANAVALAN(J-526)

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WP(C) NO. 9040 OF 2023

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-2-

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KURYAN THOMAS(K/131/2003)
PAULOSE C. ABRAHAM(MAH/58/2006)
RAJA KANNAN(K/356/2008)
LIJU. M.P(K/3405/1999)
JOPHY POTHEN KANDANKARY(K/319/2009)
SRI.RAJIV JYOTHISH GEORGE, GP
SAJAN VARGHESE K.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 13.03.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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WP(C) NO. 9040 OF 2023

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-3-

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JUDGMENT

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The petitioner impugns Ext.P6 proceedings of
the 1st respondent – Sub Divisional Magistrate,
Palakkad, asserting that the directions therein,
namely to construct a drain on the eastern side
of the property comprised of in Re.Sy.No.38/6,
would effectively allow such to be done only
through his property. He, therefore, prays that
Ext.P6 be set aside; and that the Sub Divisional
Magistrate be directed to reconsider the matter,
especially, taking note of the fact that his
property is being inundated in the monsoon due
to the illegal actions of respondents 3 and 4,
in having filled up a drain, which was in their
property earlier.

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2.Sri.Jacob Sebastian – learned counsel

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for the petitioner, vehemently argued that the
Sub Divisional Magistrate has erred in having
issued Ext.P6, directing the construction of a

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WP(C) NO. 9040 OF 2023

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-4-

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drain on the eastern side of the property
comprised of a Re.Sy.No.38/6, without assessing
his client’s contention that such property
belongs to him, as per the Resurvey Sketch and
Records. He argued that, therefore, Ext.P6
suffers from the vice of improper application of
mind; and is, therefore, liable to be set aside
by this Court.

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3.Sri.Sajan Varghese K. – learned counsel
for respondents 3 and 4, however, submitted that
what the Sub Divisional Magistrate has done
through Ext.P6 is the best available to all the
parties because, he has called for the
construction of a drain through his clients’
property alone, which lies on the eastern side
of the Petrol Pump, in an unused condition. He
submitted that his clients have absolutely no
objection to Ext.P6 being implemented in its
letter and spirit and to the drain being

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WP(C) NO. 9040 OF 2023

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constructed through their properties.

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4. Sri.Rajiv Jyothish George – learned

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Government Pleader, supported Ext.P6 order,
saying that the assertion of the petitioner,
that the property mentioned therein belongs to
him, is factually incorrect. He submitted that,
when the property on the eastern side of the
aforementioned resurvey belongs to respondents 3
and 4 exclusively, there is no reason for the
petitioner to have approached this Court through
this writ petition.

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5.There is hardly any doubt that if, as
stated by the learned Government Pleader, the
orders of the Sub Divisional Magistrate are to

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be executed, by constructing a drain only
through the properties of respondents 3 and 4,
there would be no controversy left, since it
would be in the interest of the petitioner also.

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6.However, the question is whether this is

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WP(C) NO. 9040 OF 2023

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-6-

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so and if the property mentioned in Ext.P6 -

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namely that which is on the eastern side of
Re.Sy.No.38/6 - belongs to respondents 3 and 4,
or the petitioner. In effect, the dispute now
subsisting qua Ext.P6, is whether the property
mentioned there belongs to the petitioner or to
respondents 3 and 4. This, being an issue in the
realm of facts, it can only be resolved by the
Sub Divisional Magistrate in his capacity as the
competent Authority under the provisions of
Section 133 of the Cr.P.C., at least at the

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first instance.

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In the afore circumstances, I allow this
writ petition, without setting aside Ext.P6;
however, clarifying that it cannot be
implemented until such time as the Sub
Divisional Magistrate hears both sides on the
afore issue and affirms that the property,
through which the drain is to be constructed, is

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WP(C) NO. 9040 OF 2023

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exclusively owned by respondents 3 and 4 alone
and that it does not in any manner intrude into
any extent which is claimed by the petitioner.
For this purpose, the said Authority will also
hear the parties and verify the Resurvey Records
appositely; thus culminating in an appropriate
order as to the manner in which Ext.P6 has to be
implemented, as expeditiously as is possible,
but not later than two months from the date of
receipt of a copy of this judgment.

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Sd/-

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DEVAN RAMACHANDRAN

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JUDGE

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akv

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WP(C) NO. 9040 OF 2023

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-8-

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APPENDIX OF WP(C) 9040/2023

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PETITIONER EXHIBITS

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`EXHIBIT-P1`	`THE TRUE` `PETITIONER'S H`	`PHOT` `OUSE`	`OGRAP` `AND`	`HS OF` `PLOT.`	`THE`
`EXHIBIT-P2`	`A TRUE COPY` `28.09.2021 IS` `ENGINEER, PWD`	`OF` `SUED` `(NH)`	`THE` `BY` `MALA`	`LETTER` `THE EX` `PPURAM.`	`DATED` `ECUTIVE`
`EXHIBIT-P3`	`A TRUE COPY` `08.11.2021`	`OF` `SUBM`	`THE` `ITTED`	`PETITION` `BY`	`DATED` `THE`
	`PETITIONER` `RESPONDENT.`	`BEFO`	`RE`	`THE`	`FIRST`
`EXHIBIT-P4`	`A TRUE COPY` `15.11.2021 IN` `OF THIS HONOUR`	`OF` `W.` `ABLE`	`THE` `P.(C)` `COUR`	`JUDGMENT` `NO.252` `T.`	`DATED` `04/2021`
`EXHIBIT-P5`	`A TRUE COPY` `04.03.2023` `RESPONDENT.`	`OF` `ISS`	`THE` `UED`	`ORDER` `BY`	`DATED` `FIRST`
`EXHIBIT-P6`	`A TRUE COPY` `07.03.2023` `RESPONDENT.`	`OF` `ISS`	`THE` `UED`	`ORDER` `BY`	`DATED` `FIRST`
`EXHIBIT-P7`	`A TRUE COPY` `PRODUCED IN` `COURT OF THE M`	`OF` `O.S` `UNSI`	`THE` `NO.30` `FF OF`	`SURVEY` `3/2022` `ALATHUR`	`SKETCH` `OF THE` `.`

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RESPONDENT EXHIBITS

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EXHIBIT R4(A)

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TRUE COPY OF THE DEED NO.1244/2020 OF
SRO, KUZHALMANNAM DATED 24-09-2020.

Suresh Babu v. the Sub Divisional Magistrate, Palakkad

Case brief

What is this about?

What did the court decide?

Suresh Babu v. the Sub Divisional Magistrate, Palakkad

Case brief

What is this about?

What did the court decide?

What the court decided

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