Babu v. Ombudsman for Local Self Government Institutions, Thrikkunnappuzha Grama Panchayath, Reji, Deputy Director of Panchayaths (WP(C) Nos. 18682 of 2009 and 28026 of 2009)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY ,THE 15TH DAY OF JANUARY 2019 / 25TH POUSHA, 1940** ## **WP(C).No. 18682 of 2009** ## **PETITIONER:** ## **BABU** **ROOBAS SADANAM, PALLIPPATTU MURI,, THRIKUNNAPPUZHA, ALAPPUZHA DIST.** **BY ADV. SRI.S.SHANAVAS KHAN** ## **RESPONDENTS:** |**NTS**<br>**:**|| |---|---| |**1**|**THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT**| ||**GOVERNMENT INSTITUTIONS TRIVANDRUM.**| |**2**|**THE THRIKKUNNAPPUZH GRAMA PANCHAYATH**| ||**REP. BY ITS SECRETARY THRIKKUNNAPPUZHA,, KARTHIKAPPALLY,**| ||**ALAPPUZHA DIST.**| |**3**|**REJI, SO. V.K.DASAN**| ||**PADINJAREPARAPPUNCKAL, VRINDAVANAM,, PALLIPPATTU MURI,**| ||**THRIKUNNAPPUZHA,, ALAPPUZHA DIST.**| |***ADDL**|**THE DEPUTY DIRECTOR OF PANCHAYATHS, ALAPPUZHA.**| |**R4**|| ||***(ADDL R4 IS SUO MOTU IMPLEADED AS PER ORDER DATED 15.01.2019**| ||**IN W.P.(C))**| **BY ADVS. SRI.K.S.MANU (PUNUKKONNOOR) SRI.M.P.MADHAVANKUTTY SRI.P.SREEKUMAR** ## **OTHER PRESENT:** **SRI.S.DILIP-GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.01.2019, ALONG WITH WP(C).28026/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).Nos. 18682 & 28026 of 2009** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY ,THE 15TH DAY OF JANUARY 2019 / 25TH POUSHA, 1940** **WP(C).No. 28026 of 2009** ## **PETITIONER/S:** **THRIKUNNAPUZHA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY,, THRIKKUNNAPPUZHA, KARTHIKAPPALLY, ALAPPUZHA.** **BY ADV. SRI.M.P.MADHAVANKUTTY** ## **RESPONDENT/S:** |**1**|**BABU**| |---|---| ||**S/O.PARAMESWARAN, ROOBAS SADANAM,, PALLIPPATTU MURI,**| ||**THRIKKUNNAPPUZHA, ALAPPUZHA.**| |**2**|**REJI, S/O.V.K.DASAN**| ||**PADINJAREPARAPPUNCKAL, VRINDAVANAM,, PALLIPPATTU MURI,**| ||**THRIKKUNNAPPUZHA,, ALAPPUZHA.**| ||**BY ADVS.**| ||**SRI.K.S.MANU (PUNUKKONNOOR)**| ||**SRI.P.SREEKUMAR**| ||**SRI.S.SHANAVAS KHAN**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.01.2019, ALONG WITH WP(C).18682/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).Nos. 18682 & 28026 of 2009** **3** ## **J U D G M E N T** I am considering both these writ petitions jointly since both these writ petitions involved analogous factual circumstances, and the challenge impelled in both are against the same order. 2. I, therefore, deem it appropriate to dispose of these matters through this judgment. W.P.(C)No.28026 of 2009 has been filed by Thrikkunnappuzha Grama Panchayath (hereinafter referred to as 'Panchayath' for short) and the other namely, W.P.(C)No.18682 of 2009 by a resident of the said Panchayath. 3. The primary assertions of the petitioners in these cases is that when the Panchayath attempted to gravel a road by name “Veethully Parambu – Mappilassery road”, which they claim is one that has been in existence from “time Immemorial”, objections were raised by Sri.Reji, who is the 2[nd] respondent in W.P.(C)No.28026 of 2009 and the 3[rd] respondent in W.P.(C)No.18682 of 2009, asserting that a **WP(C).Nos. 18682 & 28026 of 2009** **4** portion of the said road is his private property. The petitioners say that this assertion of Sri.Reji is completely untenable, since his predecessors-in-interest had relinquished the property, which is part of the said road, years ago and that the 3[rd] respondent is only a subsequent purchaser. They therefore, assert that his contention that the property in question is not part of the afore-mentioned road cannot be found to be tenable in any manner. 4. However, it transpires that Sri.Reji approached the learned Ombudsman for Local Self Government Institutions with a complaint, which was numbered as Original Petition No.310 of 2009, which was allowed by the learned Ombudsman for the reasons, which are extracted as under. “In the instant case there has been no land acquisition. No surrender form signed by the petitioner or his predecessors has been produced. Even assuming that his predecessor has signed any such form such land has not vested in the Panchayath as no mutation was effected in revenue registry and for that reasons there is no entry also in the asset register of the Panchayath. The report filed by the DDP who inspected the relevant records and registers makes these clear.” ## 5. The afore order of the learned Ombudsman has **WP(C).Nos. 18682 & 28026 of 2009** **5** been exhibited as Ext.P4 in W.P.(C)No.28026 of 2009 and as Ext.P6 in W.P.(C)No.18682 of 2009. 6. The petitioners say, that the reasons recorded by the learned Ombudsman in the impugned order is without any basis and that going by the judgment of this Court in **Mariam Beevi v. Secretary, Athirampuzha Grama Panchayath, Kottayam and others [** 2015 (3) KHC 199 **]** , these conclusions are no longer relevant, because the property of Sri.Reji has already become part of this road and this road is now being used to connect the residence of several persons, including that of the petitioner in W.P. (C)No.18682 of 2009. 7. In addition to this, the petitioner in W.P. (C)No.18682 of 2009 say that he was also the convenor of the beneficiary Committee of the Panchayath, which had repaired the road in question and therefore, that the order of the learned Ombudsman allowing Sri.Reji to restore a portion of the road to the original condition would cause irreparable prejudice to all residents of that area, since this **WP(C).Nos. 18682 & 28026 of 2009** **6** is the only road that can connect them to the main road. 8. I have heard the learned counsel appearing for the petitioners in these cases and the learned Government Pleader appearing for the official respondents. 9. I notice that the Panchayath has filed a counter affidavit on record in W.P.(C)No.18682 of 2009, which has been adopted in the other case also; wherein, the following averments have been made. **“** The averment contained in paragraph No.1 of the above writ petition that the petitioner herein is one of the beneficiaries of Veethully Parambu - Mappillassery Road is correct. It is true that the Thrikunnapuzha Grama Panchayath decided to put gravel in the above road using the fund allotted under the peoples planning programme during the year 2007. The residents of Ward No.10 of the 2[nd] respondent Grama Panchayath requested the Panchayath to do the works of the Veethully Parambu - Mappillassery Road for the convenience of the General Public. It is submitted that certain land owners whose properties are situated on the side of the above road issued land relinquishment letters to the 2[nd] respondent Panchayath expressing their willingness to surrender their property for the widening of the above road. Some of the above land relinquishment letters are produced by the petitioner as Exhibit P2 to Exhibit P2(G). It is respectfully submitted that the prior owner of the 3[rd] respondent also issued a land relinquishment letter in favour of the 2[nd] respondent Panchayath. The above letter has been produced along with the writ petition as Exhibit P3. It is respectfully submitted that this respondent issued a letter for a meeting of the beneficiaries for the work of Veethully Parambu - Mappillassery Road under the 2[nd] phase of the peoples **WP(C).Nos. 18682 & 28026 of 2009** **7** planning programme 2008 - 2009. The above notice is produced in the above writ petition as Exhibit P4. At this point of time, the 3[rd] respondent preferred a complaint dated 27.01.2009 before the 2[nd] respondent Panchayath. This respondent forwarded the above complaint to the Assistant Engineer, L.S.G.D. He conducted an enquiry and found that the 2[nd] respondent Panchayath obtained surrender letters from the owners of the land. This respondent has stopped all the works relating to the above road after receiving the interim order of the Ombudsman dated 06.03.2009. The Deputy Director of Panchayath, Alappuzha Inspected the site and perused all the records after the interim order passed on 06.03.2009. The decision of the Hon'ble Ombudsman permitting the 3[rd] respondent to restore his land to its original condition and to put up appropriate fence or compound wall is not legally sustainable. The learned Ombudsman failed to consider the power vested on the Panchayath under Section 178 of the Panchayath Raj Act. As per the above section the Panchayath can acquire any immovable property in connection with a public purpose. Even though it is stated in the above Section that the Panchayath have to follow the procedure under the land acquisition Act, 1984, it is clearly stated in the provisio to the above section that nothing contained in the above section shall be deemed to prevent the Panchayath from acquiring immovable property either through private purchase or any free surrender. The learned Ombudsman also failed to consider the provisions contained in the Kerala Panchayath Raj (Acquisition and Disposal of property) Rules 2005. Sub Rule (2) of Rule 3 of the above Rule envisages acquisition of land through private purchase or free surrender. These aspects were not considered by the learned Ombudsman while passing Exhibit P6 order. “ 10. The learned counsel for the petitioners say that Sri.Reji is only a subsequent purchaser of the property from his predecessor-in-interest and that there was a **WP(C).Nos. 18682 & 28026 of 2009** **8** relinquishment by that person much before this property was purchased by Sri.Reji. They reiterate that the ratio in **Mariam Beevi** (supra) is squarely applicable to this case and that the learned Ombudsman was in error in passing the impugned orders; which they say was issued presumably because, this Court had delivered **Mariam Beevi** (Supra) after the impugned orders were issued. 11. On a consideration of the afore submissions made on behalf of the petitioners and the averments in the counter affidavit afore extracted, I am of the view that it will not be possible for this Court, while it acts under Article 226 of the Constitution of India, to delve into or enter into conclusive findings on these issues, since they are essentially disputations of facts. Whether there was a relinquishment of the property in question by the predecessors-in-interest of Sri.Reji; whether such relinquishment had been accepted by the Panchayath; whether the road in question is being used from “time Immemorial”; whether the Panchayath had been maintaining this road for the last several years as alleged **WP(C).Nos. 18682 & 28026 of 2009** **9** and whether the Panchayath had expended amounts for the maintenance of this road even before Sri.Reji had purchased a portion of the same are issues that will have to engage the attention of a competent Authority, who can consider them with access to the relevant and germane factual inputs and documents. Since this Court cannot enter into these disputations of facts, I deem it appropriate to direct the Deputy Director of Panchayath, Alappuzha, to look into these issues exhaustively, after affording sufficient opportunity to the petitioners as also to Sri.Reji, and thereafter take a decision as to whether the property in question is part of the said road, adverting specifically to the judgment of this Court in **Mariam Beevi** (Supra). 12. The exercise afore directed shall be done by the said Authority as expeditiously as is possible but not later than two months from the date of receipt of a copy of this judgment. I am pursuaded to this course also for the reason that I notice that the impugned order of the learned Ombudsman has remained stayed by this Court for the last **WP(C).Nos. 18682 & 28026 of 2009** **10** more than 10 years and I am told that the road in question is still being used by all residents. Resultantly, the interim order granted by this Court will continue until such time as a decision is taken by the Deputy Director of Panchayath, Alappuzha as directed herein. **Sd/-** rp-15.01 **DEVAN RAMACHANDRAN JUDGE** **WP(C).Nos. 18682 & 28026 of 2009** **11** ## **APPENDIX OF WP(C) 18682/2009** **PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE REQUEST DATED 25/1/07 MADE THE BENEFICIARIES TO THE 2ND RESPONDENT. EXHIBIT P2 TO P2(G) TRUE COPIES OF THE LAND RELINQUISHMENT FORMS GIVEN BY VARIOUS LAND OWNERS. EXHIBIT P3 TRUE COPY OF THE RELINQUISHMENT LETTER DATED 24/1/07 ISSUED BY THE PREDECESSOR OF THE THIRD RESPONDENT. EXHIBIT P4 TRUE COPY OF THE NOTICE INVITING BENEFICIARIES OF THE ROAD FOR DISCUSSING RE-0GRAVELLIGN OF THE ROAD. EXHIBIT P5 TRUE COPY OF THE STATEMENT FILED BY THE 2ND RESPONDENT. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 14/5/09 IN OP NO. 310/09 OF THE HON'BLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS UNDER SECTION 238 OF THE KERALA MUNICIPALITIES ACT.** **WP(C).Nos. 18682 & 28026 of 2009** **12** ## **APPENDIX OF WP(C) 28026/2009** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REQUEST DATED 25/1/2007 EXHIBIT P2 TRUE COPY OF THE LAND RELINQUISHMENT LETTER DATED 24/1/2007 EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE OMBUDSMAN. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 14/5/2009 IN OP NO. 310/2009**