Kumari Udayan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942** ## **WP(C).No.23415 OF 2019(B)** ## **PETITIONER:** **KUMARI UDAYAN, AGED 47 YEARS W/O LATE K.K.UDAYAN, KALAPPURACKAL HOUSE, NO.16/3446, MUNNAR GRAMA PANCHAYATH, MUNNAR, PIN-685 612.** **BY ADV. SHRI.TOM K.THOMAS** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DISTRICT COLLECTOR, IDUKKI DISTRICT, THODUPUZHA-685 584.** - **3 THE SPECIAL TAHSILDAR, SPECIAL REVENUE OFFICE, MUNNAR-685 612.** - **4 MUNNAR GRAMA PANCHAYATH, MUNNAR.P.O.IDUKKI-685 612, REPRESENTED BY ITS SECRETARY.** **R1-3 BY SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENERAL Y JAFARKHAN GP TO AAG ARUN THOMAS SC MUNNAR GRAMAPANCHAYATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.23415 OF 2019** **2** ## **JUDGMENT** **Dated this the 27th day of January 2021** This writ petition is filed by the petitioner challenging Ext.P13 order issued by the Munnar Special Tahasildar, by which the petitioner has been directed to demolish and remove a shop room constructed over a drainage canal in Munnar town. The petitioner is the wife of the late K.K.Udayan. It appears that there was a dispute between one Pappachan K.Elegical and late K.K.Udayan, regarding the conduct of a bunk shop by K.K.Udayan, allegedly in the property of the aforesaid Pappachan K.Elegical. This dispute finally resulted in Ext.P1 order of the Government of Kerala in the Local Self Government Department holding as under: _“It is seen that the dispute regarding the bunk shop is in existence for the last so many years. It seems that the long-pending dispute can be settled without any grievance to both the parties. As it is only a bunk shop which can be removed at any time to another place, the assignment of PWD puramboke land in his favour need not be of much relevance. As the bunk shop is movable, it should be removed form the present dispute place to another convenient place in the PWD puramboke in the locality. The extent convenient place will be decided by the Munnar Grama Panchayath. The place so decided will be in the town, should not be less in importance and may not affect adversely the business conducted in the bunk shop. As it is not like other permanent constructions, the Secretary, Munnar Grama Panachayath is directed to give_ **WP(C).No.23415 OF 2019** **3** _permission to the bunk shop owner by Shir.Udayan, without demolishing it. Thus the Order No.PW/430/96 dated 8-7-99 of the Secretary, Munnar Grama Panchayath is cancelled. The petition submitted by the fourth respondent Shri.K.K.Udayan and Exts.P6 & P8 objections filed by the petitioner in the OP. Shri.Pappachan K.Elegical are thus disposed of and the direction in the judgment dated 18-3-99 of the Hon’ble High Court in O.P.No.21334 of 1999-M is complied with.”_ 2. Thereafter, through Ext.P2 judgment in O.P.No.7311/2000, this Court had directed the Executive Engineer, PWD Roads, Major Sub Division, to implement Ext.P3 order dated 26.04.2000, by which late K.K.Udayan was allowed to be put up a bunk shop above the public drainage, after constructing pillars without causing hindrance to the flow of water or to traffic, and without causing any public nuisance. 3. The learned counsel for the petitioner submits that, following the permission granted in Ext.P3, late K.K.Udayan, put up a bunk shop and was running the same. On 05.01.2011, he was issued with Ext.P5 notice by the Revenue Department requiring him to remove the bunk shop. Late.K.K.Udayan, again approached this Court vide W.P.(C).No.691/2011. Pending that writ petition K.K.Udayan died and his wife and two children were impleaded as additional petitioners 2 to 4. This Court **WP(C).No.23415 OF 2019** **4** found in the judgment dated 21.05.2018 in W.P. (C).No.691/2011 that Ext.P5 had been issued in violation of the _audi alteram partem_ rule and further that considering the earlier permissible occupation of the petitioner, a fresh decision has to be taken by the authorities concerned. Exts.P7 and P8 are the two reports filed by the Secretary of Munnar Grama Panchayath, before the District Collector regarding the nature of the construction and the extent of area of the shop room constructed by Late K.K.Udayan, over the public drainage as above. It is seen from Exts.P7 and P8 that the area in question is reported to be 32 sq.ms. The Special Tahasildar, Munnar, thereafter issued Ext.P10 order directing as under: - " ഈ സസ ാ ഹചരര ്യ തത ്തി ല ്‍ തസ ാ ഴഴ െ പ ്പ റയ ു ന ്ന രര ീ തത ്തി യത ്തി ല ്‍ ബങങ ്ക് പ ു നര ്‍ നത ്തി ര ്‍ മത ്തി ക ്കു ന ്ന തത ്തി നങ ്ക് / മസ ാ ററ വരതനതതനങ ഉതരവസകന. ു ്തു ്ന ്തി ്ക് ാ ു 1. ബങങ ്ക് സസ ാ പത ്തി ച ്ച സലഴത നര ീ ഴരസ ാ ഴ ു കത ്തി നങ ്ക് തടസ ്സ മസ ാ യത ്തി സസ ാ പത ്തി ച ്ച്തി തട ്ടു ള തണകള നരകറ ഴചയണറ. നരരചസലതനങ മകളതലഴട ഴറയതലകള സസപതചങ ൂ ു ്‍ ീ ്യ ീ ്‍ ്ചാ ്തി ്ക് ു ്തി ൂ ്തി ു ്‍ ാ ്തി ്ച്ക് നര ീ ഴരസ ാ ഴ ു കത ്തി നങ ്ക് തടസ ്സ മസ ാ കസ ാ ത വത ്തി ധറ ബങങ ്ക് പ ു നക ്ര മര ീ കരത ്തി കണറ. ഗതസ ാ ഗതതത ്തി നങ ്ക് തടസ ്സ മ ു ണസ ാ ക ്കു ന ്ന വത ്തി ധതത ്തി ല ്‍ ബങത ്തി ന ു മ ു ന ്‍ വശറ വസ ാ ഹനങ ്ങ ള ്‍ പസ ാ ടത ്തി ല. നനസ ാ പസരകതറഗങ നബസരഡങ സസപതകണറ. ാ ്‍ ്തി ്ക് ാ ്‍ ്ക് ാ ്തി 2. ബങത ്തി ഴന ്റെ മ ു ന ്‍ വശറ വസ ാ തത ്തി ല ്‍ നറസ ാ ഡത ്തി നലകങ ്ക് ത ു റന വയസ ാ ഴത നറസ ാ ളത ്തി റഗങ ്ക് നമസഡല ഷടര സസപതകണറ. ാ ്‍ ്ട ്‍ ാ ്തി 3. നത ്തി ലവത ്തി ഴല സത ് **ത** ി ്തി തയത ്തി ല ്‍ നത ്തി നറ തറവത ്തി സര ീ ര ്‍ ണ ്ണ തത ്തി ല ്‍ യസ ാ ഴതസ ാ ര ു മസ ാ റവറ വര ു ത ്തു വസ ാ ന ്‍ പസ ാ ടത ്തി ലസ ാ തതസ ാ ണങ ്ക് . 4. ഈ ഉതരവ കകപ ്പ റത ്തി രണ ്ടു മസ ാ സതത ്തി നകറ ബങങ ്ക് പനകമരകരതകസതപകറ ഉതരവങ സസയനമ റദസകനതറ ബങങ അടതയനതരമസയത ു ്ര ീ ്തി ാ ്ക് ്വ ാ ു ്ന ു ്ക് ്തി ്തി ാ ്തി **WP(C).No.23415 OF 2019** **5** ## ഴപസ ാ ളത ്തി ച ്ചു നര ീ നകണത ു മസ ാ ക ു ന. 5. ബങങ ്ക് പ ു നര ്‍ നത ്തി ര ്‍ മത ്തി ച ്ച നശഷറ പഞസ ാ യതത ്തി ഴന ”്റെ കലസന ്‍ സങ ്ക് എട ു നകണത ു റ യഥസകസലറ കലസനസകള പതനകണതമസകന. ാ ാ ്‍ ു ്‍ ു ു ു ാ ു 4. The petitioner was thereafter again served with a notice by the Special Tahasildar, Munnar (Ext.P11 dated 03.08.2019), mainly on the allegation that the conditions imposed in Ext.P10 have been violated. An objection was filed by the petitioner as Ext.P12. By Ext.P13, the objection has been adjudicated and the petitioner has been directed to demolish the shop in question principally on the ground that the late.K.K.Udayan had originally been given permission to establish a bunk shop alone, but he had established a fairly large shop room over the “Thodu”, and had violated the stipulations in earlier Government orders etc., regarding the conditions upon which late K.K.Udayan, was permitted to put up a shop. 5. It is submitted that even in Ext.P1 proceedings, it was stipulated that permission is being granted only upon the premise that the bunk shop is one which can be easily shifted, if **WP(C).No.23415 OF 2019** **6** necessary at a later stage, and that this was purely a temporary permission, and the petitioner cannot claim any right on the basis of the same. It is also pointed out that the bunk shop is situated over a public drainage and the same should be removed from there, as the flood which ravaged the Munnar town in 2018 has shown that no sort of construction should be permitted over any public drainage. 6. It is also contended on behalf of the respondents that the shop room in question is now being run as a textile shop by a third person and not by the petitioner. 7. The learned counsel for the petitioner however contended that, the petitioner had not violated any condition of the permission granted to the petitioner, either vide Ext.P3 or by Ext.P10. He would submit that the width of the public drainage over which the petitioner was allowed to put up the shop room is about 15 feet and when the shop room was put up without causing hindrance to the flow of water the entire width of the public drainage had to be covered and it is not any permanent construction as is sought to be contended on behalf of the **WP(C).No.23415 OF 2019** **7** respondents. Both sides rely on photographs to establish their contentions. 8. The learned Government pleader places reliance on the judgment of the Hon'ble Supreme Court in _**Sarevepalli Ramaiah (Died) as per LRs and Others v. District Collector, Chittoor**_ _**District and Others [2019 (4) SCC 500]**_ and a judgment of a Division Bench of this Court in _**W.A.No.1571/2020**_ , to contend that persons like the petitioner have no right to claim that they are entitled to occupy Government land/thodu puramboke, and that any permission granted cannot be taken to be a permission forever, and that the Government is within its powers to revoke such permission at any point of time. 9. The petitioner is clearly in occupation of the area only on the basis of the permission granted to her husband late K.K.Udayan, by the authorities concerned earlier (Ext.P3 and Ext.P10). The petitioner cannot as a matter of right contend that, she must be permitted to continue in occupation. As and when the competent authority directs that the occupation should cease the petitioner is bound to follow such direction. **WP(C).No.23415 OF 2019** **8** The petitioner cannot on the basis of Exts.P3 and P10 contend that, she must be given a right to occupy the area in question forever. 9. I notice from Ext.P13 that, the reasons for taking the decision to direct the petitioner to demolish the shop room in question is valid and calls for no interference. The authorities have taken into consideration all relevant aspects while issuing Ext.P13. Therefore, Ext.P13 calls for no interference at the hands of this Court. 10. However, from the facts of the present case, I notice that the late husband of the petitioner was eking out a living by running a bunk shop selling tea powder, at the time when Ext.P1 order was issued by the Government. Even in Ext.P1, it is stated that the late husband of the petitioner was running the bunk shop for quite a large number of years, though it is not specified as to when exactly the bunk shop in question was put up by the late husband of the petitioner. It is at the instance of a private land owner that the petitioner's bunk shop was directed to be shifted to a convenient location. Ext.P3 is the **WP(C).No.23415 OF 2019** **9** letter from the Executive Engineer of the PWD Roads Division, permitting the petitioner to put up a bunk shop over the public drainage. The respondents have no case that the petitioner or her late husband had put up any construction in an area not permitted under Ext.P3. 11. The learned counsel for the petitioner also submits that late K.K.Udayan had committed suicide leaving behind his wife (the petitioner) and two minor daughters, and the shop in question was therefore being run by the petitioner's nephew, and that all the licenses and permissions are still in the name of the petitioner. He also submits that the income from the shop rooms is the only source of livelihood of the petitioner and her two daughters. 12. Taking note of all the above facts and circumstances, I am of the opinion that the District Collector, Idukki must consider:- (i) whether the petitioner can be allowed to continue at the same location subject to any condition that he or she may impose. **WP(C).No.23415 OF 2019** **10** (ii) If such permission cannot be granted to the continue the same location, whether a suitable convenient location can be provided to the petitioner to put up a bunk shop. It is open to the District Collector, Idukki, to specify the size and nature of bunk shop, if permission is being granted to the petitioner to put up the bunk shop in any other area. Till such time a decision is taken by the District Collector as above, _status quo,_ as on today shall be maintained. This writ petition is disposed of as above. VPK **Sd/GOPINATH P. JUDGE** **WP(C).No.23415 OF 2019** **11** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER NO GO(RT) 3341/1999/LSGD DATED 5.11.1999** - **EXHIBIT P1A THE LEGIBLE COPY OF EXT.P1 ORDER NO GO(RT) 3341/1999/LSGD DATED 5.11.1999** - **EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 9.6.2010 IN OP NO 7311 OF 2000** - **EXHIBIT P3 TRUE COPY OF THE REPORT DATED 26.4.2000 OF THE EXECUTIVE ENGINEER, PWD.** - **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS DATED 27.6.2000 OF THE MUNNAR GRAMA PANCHAYATH** - **EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 5.1.2011 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONERS HUSBAND** - **EXHIBIT P6 TRUE COPY OF JUDGMENT IN WPC NO 691 OF 2011 DATED 21.5.2018** - **EXHIBIT P7 TRUE COPY OF THE REPORT DATED 4.12.2017 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 2ND RESPONDENT** - **EXHIBIT P8 TRUE COPY OF THE REPORT DATED 13.12.2017 SUBMITTED BY THE 4TH RESPONDENT** - **EXHIBIT P9 TRUE COPY OF THE REPLY TO THE 3RD RESPONDENT IN EXT P5 NOTICE.** - **EXHIBIT P10 TRUE COPY OF THE ORDER DATED 18.8.2018 OF THE 3RD RESPONDENT** - **EXHIBIT P10A TRUE COPY OF THE D & O LICENCE DATED 7.5.2019 ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT** - **EXHIBIT P11 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 3.8.2019** - **EXHIBIT P12 TRUE COPY OF THE REPLY DATED 9.8.2019 SUBMITTED BY THE PETITIONER** **EXHIBIT P13 TRUE COPY OF THE ORDER NO A2-1/2011 DATED 22.8.2019 OF THE 3RD RESPONDENT** **WP(C).No.23415 OF 2019** **12** **EXHIBIT P14 PHOTOGRAPHS.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R3 A A TRUE COPY OF A PHOTOGRAPH OF THE SAMPLE BUNK SHOP.**