P.M. Krishnan Namboodiri vs K.P. Narayanan Nambiar

A.M. Shaffique, J.—The petitioner has approached this Court seeking for police protection to enable him to remove the obstruction caused to the free flow of water through the canal which was in existence from time immemorial through the property, which is in the possession of respondent No. 1.

It is inter alia contended that the temple is an ancient temple and considered as an important Siva Temple in Kerala. The temple pond in front of the temple was in existence for the last more than 400 years. During rainy season, over flow of the temple pond used to pass through the canal, which passes through the property of the 1st respondent and the first respondent with the intention to obstruct the free flow of water is trying to fill up the canal. The petitioner had already approached the Revenue Divisional Officer as well as the police, but no action has been taken in the matter.

Counter affidavit has been filed by respondents 1 and 2 inter alia contending that no such canal passes through the first respondent''s property. It is further contended that the petitioner had reduced the dimension of the pond without permission from the local authority and the filled up space was used by him for planting plantain and other trees, which is apparently causing alleged nuisance to the free flow of water.

Heard the learned counsel for the petitioner and the learned counsel appearing for respondents 1 and 2.

It is contended by the learned counsel for the petitioner that already orders have been passed by the District Collector and also a decree passed with reference to the existence of the canal. The canal, which has access to the temple pond, is used for the over flow of natural water during rainy season as accepted by the proceedings of the District Collector. Ultimately the canal ends in a paddy filed further east of the property of the first respondent. Apparently, respondents 1 and 2 are not parties to the said proceedings. Therefore, it cannot be said that they are not bound by any such order.

The averments in the writ petition as well as in the counter affidavit clearly show that there was a dispute between the parties regarding the existence of the canal, which passes through the property of the first respondent. In such circumstances, unless it is established that the canal is in existence in a proceedings in which the party respondents are also parties, it may not be possible for this Court to issue any direction to respondent No. 6 as prayed for.

Learned counsel for the petitioner has also prayed for a direction to the 5th respondent to dispose of Ext. P13 complaint given by the petitioner to the Revenue Divisional Officer alleging that the first respondent is intending to close the canal for obstructing flow of water.

Learned counsel for the respondents submits that the RDO/Additional District Magistrate has no jurisdiction to entertain such a complaint especially on account of the disputed question of fact. He has also submitted that if the RDO is to consider the matter, he may rely upon the order of the higher authority. The cause of action, according to the learned counsel for the petitioner, is with reference to Section 133 of the Code of Criminal Procedure. If at all the RDO can exercise jurisdiction and if there is cause of action with reference to Section 133 of the Code of Criminal Procedure, it is always open for the petitioner to approach the RDO for appropriate reliefs. In the said circumstances, we do not think that, any direction as sought for is required to be issued in the case. However, we observe that, it shall always be open for the petitioner to approach the RDO, in the event of any nuisance, by way of a complaint by invoking Section 133 of the Code of Criminal Procedure. In the event any such petition is filed, the RDO shall consider the same and pass appropriate orders in accordance with law.

With this observation, this Writ Petition is disposed of.