IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 1826 of 2006(M)
1. SUBRAN, AGED 65, S/O. VELAYUDHAN,
... Petitioner
2. GOKULAN, S/O. KAITHAYIL SUBRAN
Vs
1. IRINJALAKUDA DIOCEES EDUCATION TRUST,
... Respondent
2. KERALA STATE REP. BY
3. KODAKARA GRAMA PANCHAYATH, REP. BY
4. STATE OF KERALA, REP. BY THE
For Petitioner :SRI.V.BHASKARA MENON
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :16/11/2007
O R D E R
V. RAMKUMAR, J.
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Crl. R.P. No. 1826 OF 2006 C
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Dated this the 16th day of November, 2007
O R D E R
The revision petitioners, who are father and son, claim
to be the owners in respect of 1.60 acres of land in Kallettumkara
village. The said land is stated to be a paddy field. The 1st
respondent, namely Irinjalakuda Diocese Education Trust
represented by the Bishop of Irinjalakuda, is alleged to have
purchased 40 acres of land in Kallettumkara and Kodakara
villages for the purpose of starting an engineering college. The
grievance of the revision petitioners is that the 1st respondent had
filled up paddy fields and converted the same to building sites
without getting permission from the competent authority under the
Kerala Land Utilisation Order and as a result of such filling and
conversion, a natural water course flowing through the paddy filed
was encroached upon and blocked affecting the paddy cultivation
of the petitioners and others. Accordingly, the 1st revision
petitioner moved the Revenue Divisional Officer, Thrissur. The
revision petitioners claim to have moved the RDO under section
133 Cr.P.C. alleging the obstruction of a public water course.
Crl.R.P.No.1826/06
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While the matter was pending before the RDO, the 1st revision
petitioner filed OP.10458/02 before this court for appropriate
directions to the RDO for disposal of the petition filed by the 1st
revision petitioner. The said O.P. was disposed of by this court on
1.6.04 directing the RDO, Thrissur to look into the grievance
raised by the 1st revision petitioner herein in the petition filed by
him and to take proper decision in accordance with law, after
affording an opportunity of being heard to the 1st revision
petitioner, the 1st respondent Irinjalakuda Diacese Education Trust
and any other person interested. Thereafter, the RDO passed an
order dated 14.12.04 as D1-4430/202 holding that the water
course had been unlawfully obliterated rendering paddy cultivation
impossible due to non-availability of water for irrigation and that
the said water course is to be restored to its original condition and
directing the Secretary of the Kodakara Grama Panchayat to take
urgent steps to restore the water course to its original condition
within one month of the said order and to report the action taken in
that behalf to the RDO. Aggrieved by the said decision, the 1st
respondent education trust filed a revision before the Sessions
Court, Thrissur as Crl.R.P.10/05 against the revision petitioners,
Crl.R.P.No.1826/06
: 3 :
District Collector and the Kodakara Grama Panchayat. The said
revision was filed on 19.1.05. Since the revision was filed beyond
the period of limitation prescribed for the same an application was
filed as Crl.M.P. 119/05 for condoning the delay of 5 days. The
said application appears to have been filed by Advocate
Sri.K.M.Thomas Raj who is none other than the counsel who was
appearing for the 1st respondent/Educational Trust. The
proceedings paper produced as Annexure-A5 shows that on
15.2.05 Crl.M.P.119/05 was allowed and the revision was admitted
and notice was issued by the Principal Sessions Court, Thrissur.
The revision was thereafter made over to the I Additional Sessions
Court. It was on 28.3.05 that the revision petitioners herein who
were respondents 1 and 2 in the above revision entered
appearance through counsel.
2. The learned counsel appearing for the revision
petitioners submitted that the Sessions Court was acting illegally in
entertaining the revision filed out of time by condoning the delay
without issuing notice on the delay petition to the respondents
therein. He also contended that the order impugned in the above
revision was not a final order passed by the RDO in terms of
Crl.R.P.No.1826/06
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Section 138 Cr.P.C. The above grounds have been specifically
raised in this revision. The learned counsel appearing for the 1st
respondent also was not able to support the order passed on
Crl.M.P.119/05 without issuing notice to the respondents therein.
When a proceedings filed before a court is beyond the period of
limitation fixed by law and condonation of the delay is sought, the
principles of natural justice demand that the persons who would be
aggrieved by condoning the delay are heard. This is because a
valuable right has accrued to the opposite party on account of the
lapse of time and such right cannot be interfered with lightly. In a
case where limitation has been prescribed for certain category of
offences under the Cr.P.C. eventhough the court possesses the
right to condone the delay if it is of the view that it is expedient in
the interest of justice to do so, the court cannot condone the delay
without issuing notice to the persons affected thereby. This is
because of the principle of audi alteram partem which is attracted.
It means that no person shall be contemned unheard. [See in this
connection, State of Maharashtra Vs. Sharadchandra Vinayak
Dongre and others [AIR 1995 SC 231]. The Sessions Judge by
condoning the delay and allowing Crl.M.P.119/05 behind the back
Crl.R.P.No.1826/06
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of the revision petitioners was committing a manifest error of
jurisdiction. The matter has, therefore, to go back to the Sessions
Court.
3. The propriety of the counsel appearing for the revision
petitioners before the Sessions Court filing a petition to condone
the delay may also have to be gone into by that court. Yet another
aspect which may have to be considered is the maintainability of
the revision before that court. If the order dated 14.12.04 of the
RDO was not a final order under section 138 Cr.P.C., then it wold
not be revisable under section 397 Cr.P.C. It was without going
into all these preliminary aspects that the learned Sessions Judge
disposed of the revision and set aside the order passed by the
RDO as if the revision itself was competently filed in accordance
with law. The only alternative available to this court is, therefore,
to set aside the revisional order dated 6.1.06 passed by the I
Additional Sessions Court, Thrissur in Crl.R.P.10/05 and direct
that court to consider the aforementioned aspects and pass fresh
orders in accordance with law. It goes without saying that both
sides shall be entitled to address the Sessions Court regarding the
maintainability of the revision, regarding the propriety of the delay
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petition filed by the counsel for the revision petitioner therein and
such other relevant matters which may be raised by the parties.
The order dated 6.1.06 passed by the I Additional Sessions Court,
Thrissur in Crl.R.P.10/05 is accordingly set aside and the matter is
remanded to that court for fresh disposal in accordance with law
and in the light of the observations hereinabove contained. The
parties shall appear before the I Additional Sessions Court,
Thrissur on 10.12.2007 without any further notice. It is needless
to say that that court shall give top priority to this case and make
every endevour to dispose of the same expeditiously and at any
rate, within two months of the date of appearance of the parties.
This revision is disposed of as above.
(V. RAMKUMAR, JUDGE)
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