Lella E.K. v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` MONDAY, THE 4[TH] DAY OF APRIL 2022 / 14TH CHAITHRA, 1944 ``` ``` WP(C) NO. 3349 OF 2022 ``` ## **`PETITIONER:`** ``` LELLA E.K., AGED 70 YEARS, W/O. V.K. KUTTAPPAN, VARISSERY, VADEPARAMBIL, NEAR SMHS, PALLIPPUAM, CHERAI P.O., ERNAKULAM DISTRICT-683514. ``` ``` BY ADVS. S.GOPAKUMAR T.M.BINITHA(K/000206/2006) ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA, REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.` - `2 THE DISTRICT COLLECTOR, ERNAKULAM DISTRICT, COLLECTORATE, ERNAKULAM-682025.` - `3 THE REVENUE DIVISIONAL OFFICER, SUB COLLECTOR, FORTKOCHI-682002.` - `4 THE SECRETARY, PALLIPPURAM GRAMA PANCHAYATH, CHERAI P.O., PALLIPURAM, ERNAKULAM-683514.` - `5 THE TAHSILDAR, KOCHI TALUK, FORTKOCHI, ERNAKULAM-682001.` - `6 THE VILLAGE OFFICER, PALLIPPURAM VILLAGE OFFICE, CHERAI P.O., ERNAKULAM-683514.` ``` BY ADVS. ATHUL SHAJI ANWIN JOHN ANTONY SMT.K.AMMINIKUTTY.SR.G.P. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WPC 3349/22 2 ## **`JUDGMENT`** The petitioner impugns Ext.P22 order asserting that, through it, the 2nd respondent – District Collector has flagrantly violated the directions of this Court in Ext.P21 judgment. 2. Sri.S.Gopakumar – learned counsel for the petitioner, pointed out that, through Ext.P21 judgment, this Court had directed the District Collector to implement Ext.P10 order dated 01.07.2016, wherein, he had directed that certain extents of property owned by his client - which had been encroached into by the Panchayat for the purpose of constructing a concrete Public Road - be restored to her. He argued that instead of doing so, the District Collector has virtually reviewed Ext.P10 without any authority/competence and has incorrectly held that the extents which have been now encroached into by the Panchayat were, in fact, relinquished in their favour by his client’s husband in the year 2006. He contended that this finding in Ext.P22 is egregiously improper and prayed that it be set aside and Ext.P10 be directed to be implemented in its letter WPC 3349/22 3 and spirit. 3. In response, Sri.Athul Shaji – learned Standing Counsel for the Panchayat, submitted that the road in question has been in existence for the last more than 40 years and that it was only sought to be made into a concrete one about 10 or 15 years ago. He added that, it is at this time that the petitioner made an incorrect assertion that her property had been encroached into, while, the fact remains that it was always part of the said road for the last four or five decades. He argued that, therefore, his client was constrained to bring all these aspects to the notice of the District Collector, including Ext.R2(c) relinquishment letter made by the petitioner’s husband as early as on 13.11.2006 and therefore, that Ext.P22 cannot be found to be in error. He bolstered his arguments saying that since the property now claimed by the petitioner was always part of the Public Road, going by the judgment of this Court in Mariam Beevi v. Secretary, Athirampuzha Grama Panchayat & Others [2015(3) KHC 192], even a relinquishment is not necessary and that the Panchayat was entitled to include it in WPC 3349/22 4 the concrete road newly constructed. He thus prayed that this Writ Petition be dismissed. 4. The learned Senior Government Pleader – Smt.K.Amminikutty, argued that Ext.P22 cannot be found to be in error because the District Collector was only adverting to the relevant facts and in particular, the admitted factual situation that the petitioner had filed O.S.No.572/2013 before the Munsiff’s Court, Parur, against some of her neighbours from using the property in question as a Public Road. She submitted that, therefore, the District Collector was justified in holding that until the said Suit is disposed of, no further action can be taken. She then added that, as has been rightly found by the District Collector in Ext.P22, the property in question has always been part of the Public Road that all which the Panchayat has now done is only to concrete it for the benefit of the neighbourhood. She thus prayed that this Writ Petition be dismissed. 5. Whatever be the facts actually involved, it is indubitable that, earlier the petitioner had approached this WPC 3349/22 5 Court by filing WP(C)No.1309/2017 seeking that Ext.P10 order of the District Collector be implemented. In the said order, the District Collector had found that certain extents of the property of the petitioner had been encroached into by the Panchayat and a direction was given to its Secretary to restore the same to her. It is this order which was directed to be implemented by the District Collector and therefore, as rightly stated by the learned counsel for the petitioner, the said Authority could not have issued Ext.P22 virtually reviewing Ext.P10 and then making a fresh order on the claims of the petitioner. 6. Normally, in such circumstances, if the District Collector had found that there were factual mistakes in Ext.P10, his remedy was to have sought a review of Ext.P21 judgment and then to have sought the permission of this Court to redo Ext.P10, but in the absence of any such action being taken, certainly, Ext.P22 could not have been issued. 7. That being said, the question whether the extents in question were part of a Public Road for the last more than four decades, or whether a relinquishment had been made on the WPC 3349/22 6 same by the petitioner’s husband are not aspects into which this Court can enter into at this time. 8. Needless to say, these issues are left open to be impelled by the Panchayat or by any other interested person in terms of law; but as matters now stand, Ext.P10 order of the District Collector holds the field. If the Panchayat has any grievance against the said order, they can always invoke and pursue their Statutory remedies against it, but without doing so, they cannot assert that the same cannot be implemented. In the afore circumstances, I have no doubt that Ext.P22 cannot find my favour; and I, consequently, order this Writ Petition and set aside the same. Resultantly, the District Collector will now reconsider the entire aspects and if Ext.P10 is not challenged by any of the parties, including the Panchayat, he will take necessary steps for its implementation in terms of law, after affording both sides an opportunity of being heard. As I have already said above, all other issues, including whether the property in question has been part of a Public WPC 3349/22 7 Road, or whether there has been a valid relinquishment by the petitioner’s husband, are left open, without being considered by this Court in any manner. ``` Sd/- ``` ``` RR ``` ``` DEVAN RAMACHANDRAN JUDGE ``` WPC 3349/22 8 ## **`APPENDIX OF WP(C) 3349/2022`** ## `PETITIONER EXHIBITS` ``` Exhibit P1TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO RESPONDENT NO.3 DATED 07/10/2011 SEEKING TO CANCEL THE LAND RELINQUISHMENT FORM. ``` - `Exhibit P2 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO RESPONDENT NO.3 DATED 31/08/2013 SEEKING TO RESTRAIN RESPONDENT NO.4 FROM CONSTRUCTING ROAD THROUGH PETITIONER'S PROPERTY.` - `Exhibit P3 TRUE COPY OF THE INTERIM ORDER PASSED BY THE RESPONDENT NO.3 RESTRAINING RESPONDENT NO.4, CONSTRUCTING ROAD THROUGH PETITIONER'S PROPERTY.` - `Exhibit P4 TUE COPY OF THE ORDER OF RESPONDENT NO.3 DATED 14/05/2014 ALONG WITH THE COVERING LETTER DATED 19/01/2022.` - `Exhibit P5 TRUE COPY OF THE COMMUNICATION ISSUED BY RESPONDENT NO.3 TO RESPONDENT NO.4 DATED 28/10/2014 REQUIRING COMPLIANCE OF EXHIBIT P4.` - `Exhibit P6 TRUE COPY OF APPLICATION SUBMITTED BY THE RESPONDENT NO.4 TO RESPONDENT NO.3 DATED 01/04/2015 SEEKING TO REVIEW EXHIBIT P5.` - `Exhibit P7 TRUE COPY OF THE RESOLUTION NO.3 OF PALLIPPURAM PANCHAYATH DATED 17/11/2014.` - `Exhibit P8 TRUE COPY OF REPORT SUBMITTED BY RESPONDENT NO.3 TO RESPONDENT NO.2 NO.G-8040/11 DATED 08/06/2015.` - `Exhibit P9 TRUE COPY OF THE STATEMENT SUBMITTED BY RESPONDENT NO.4 TO RESPONDENT NO.2 BEARING NO. C-1877/06 DATED 25/04/2016.` - `Exhibit P10 TRUE COPY OF ORDER PASSED BY RESPONDENT NO.2 BEARING NO. L11-26511/2016 DATED 01/07/2016.` - `Exhibit P11 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE RESPONDENT NO.4 DATED 30/08/2016.` - `Exhibit P12 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE RESPONDENT NO.3 DATED 01/09/2016.` - `Exhibit P13 TRUE COPY OF THE ORDER OF THE` WPC 3349/22 9 ``` RESPONDENT NO.3 BEARING NO. G-8040/11/K.DIS DATED 20/09/2016. ``` - `Exhibit P14 TRUE COPY OF THE APPLICATION SUBMITTED BY THE RESPONDENT NO.4 DATED 07/02/2017 (MISTAKENLY SHOWN AS 07/02/2016) SEEKING TO REVIEW EXHIBIT P10.` - `Exhibit P15 TRUE COPY OF THE PANCHAYATH COMMITTEE DECISION NO.9 (IF) DATED 09/09/2016.` - `Exhibit P16 TRUE COPY OF THE NOTICE ISSUED BY RESPONDENT NO.5 TO THE RESPONDENT NO.4 BEARING NO. B1-13853/2011 (2) DATED 21/02/2017.` - `Exhibit P17 TRUE COPY OF THE NOTICE ISSUED BY RESPONDENT NO.5 TO THE RESPONDENT NO.4 BEARING NO. B1-13853/2011 DATED 11/05/2018.` - `Exhibit P18 TRUE COPY OF THE ORDER OF RESPONDENT NO.2 BEARING NO. L11/5100/17 DATED 14/03/2019.` - `Exhibit P19 TRUE COPY OF COMMUNICATION ISSUED BY THE RESPONDENT NO.5 BEARING NO.L113853/2011 DATED 27/01/2021 TO THE RESPONDENT NO.4.` - `Exhibit P20 TRUE COPY OF THE REPORT SUBMITTED BY THE RESPONDENT NO.6 TO THE RESPONDENT NO.5 DATED 26/02/2021.` - `Exhibit P21 TRUE COPY OF THE JUDGMENT IN WPC NO.1309/2017 DATED 11/10/2021.` ``` RESPONDENT EXHIBITS ``` - `Annexure Anexure R2(a) PETITIONER EXHIBITS Exhibit P22 TRUE COPY OF THE ORDER OF THE RESPONDENT NO.2 BEARING NO. DCEKM/1753/2019/LII DATED 08/11/2021.` ## `RESPONDENT EXHIBITS` ``` AnnexureAnnexure R2(b) AnnexureAnnexure R2(c) AnnexureAnnexure R2(d) ```