M.C. Prabhakaran vs The Revenue Divisional Officer Office of the Revenue Divisional Officer Kottayam 686001, The Village Officer Erumely South Village and Asharaf Rawther

Justice T.R. Ramachandran Nair

This writ petition is filed by the petitioner seeking a direction to the Revenue Divisional Officer to complete the proceedings pending, in the light of the plea raised by the petitioner in Ext. P5 complaint. According to the petitioner, there is a stream passing through the property of the petitioner and the 3rd respondent and the 3rd respondent started to fill his land by depositing red earth and also started to close down the natural stream, which is passing through his property. It is also stated that he has installed certain pipes at the place of the stream and covered all the other places with red earth. It is therefore point out that this is a fit case to direct the Revenue Divisional Officer to initiate action on Ext. P5 complaint in terms of section 133 of the Code of Criminal Procedure. In fact in paragraph 6 of the writ petition itself, the petitioner stated that a civil suit is pending between the parties as O.S. No. 363 of 2011 before the Munsiff''s Court, Kanjirappally wherein the petitioner herein is the defendant and the 3rd respondent is the plaintiff.

The learned counsel for the 3rd respondent submits that in the civil suit the 3rd respondent has obtained an interim injunction and in the light of the pendency of the civil suit, the direction sought by the petitioner in the writ petition cannot be granted.

Learned Government Pleader submits that even though proceedings have been initiated by the Revenue Divisional Officer, it has been kept in abeyance to await orders in the civil suit. Vehement plea raised by the learned counsel for the petitioner is that since the complaint before the Revenue Divisional Officer is one concerning public right, there is no legal embargo in proceeding with the same whereas the learned counsel for the 3rd respondent submits that any determination of the same dispute at the time when the civil suit is pending by the Revenue Divisional Officer cannot be justified.

The subject matter of the dispute pending in civil suit as well as in the complaint before the Revenue Divisional Officer is the same. Therefore, it cannot be disputed that non-continuance of the proceedings by the Revenue Divisional Officer is due to the pendency of the suit. The same is not illegal also. Parties will have to fight out the matter before the civil court. Hence, a direction as sought for is declined. It is made clear that, depending upon the judgment of the civil court, it will be open to the petitioner to approach the Revenue Divisional Officer, if required.