1. Petitioner challenges Ext.P5 order passed by the Revenue Divisional Officer directing him to demolish the granite basements constructed in his property and to provide access to the fourth respondent for the purpose of enabling the fourth respondent to take tractor and tiller through the petitioner's property, which, according to the petitioner, is wholly without jurisdiction and ultra vires the powers conferred on him. According to the petitioner, the issue is not with reference to the violation of any of the provisions of Kerala Conservation of Paddy Land and Wet Land Act, 2008, hereinafter referred to as 'the Act' and therefore RDO has no jurisdiction to pass such an order. The fourth respondent had already filed a suit, O.S.No.109/13 and has even sought for a declaration to have a right of way over plaint B schedule property, which is the subject-matter in issue in Ext.P5 as well. During the pendency of the suit, there was no reason for the RDO to usurp the power of civil court and issue directions in terms of Ext.P5.
2. Counter affidavit has been filed by the fourth respondent, inter alia supporting the stand taken by the RDO. It is contended that since the petitioner's action was illegal, the RDO was justified in invoking the powers under Section 12 of the Act. Learned Government Pleader, on instructions, also supports the stand taken by the RDO.
3. Having heard the learned counsel for the petitioner, learned Government Pleader and the learned counsel for the fourth respondent and having referred to the averments in the writ petition and counter affidavit, I am of the view that, when a suit is pending before a civil court with reference to the very same issue, there is no justification on the art of RDO in passing Ext.P5. That apart, RDO has certain limitations with reference to the powers to be exercised in terms of Section 12 of the Act. A perusal of Ext.P5 does not indicate that he was exercising the powers under Section 12 of the Act, whereas he was considering the question regarding the right of the 4th respondent to take his tractor, tiller etc. to his agricultural field through the petitioner's property.
4. According to the learned counsel for the petitioner, he has only made constructions in his garden land and it has nothing to do with the paddy field of the 4th respondent. Under these circumstances, I am of the view that Ext.P5 is liable to be set aside and accordingly I do so. The parties will have to resolve their disputes by initiating appropriate proceedings before the civil court.
Writ petition is disposed of accordingly.
A.M.Shaffique, Judge.
sl.