OTTASEKHARAMANGALAM GRAMA PANCHAYAT v. RAJENDRAN

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944 WP(C) NO. 20484 OF 2019 ``` ## **`PETITIONER/S:`** ``` OTTASEKHARAMANGALAM GRAMA PANCHAYAT, OTTASEKHARAMANGALAM P.O, THIRUVANANTHAPURAM-695 125, REPRESENTED BY ITS SECRETARY. ``` ``` BY ADVS. R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SMT.R.BINDU SMT.P.ANJANA SRI.JOHNSON JOSE PANJIKKARAN SMT.NEENU PAVITHRAN SRI.R.HARIKRISHNAN (KAMBISSERIL) SRI.NIKHEL K GOPINATH ``` ## **`RESPONDENT/S:`** - **`1 RAJENDRAN, ANITHA BHAVAN, ARUVIKUZHI, VAZHICHAL, OTTASEKHARAMANGALAM, THIRUVANANTHAPURAM-695 125`** - **`2 THE KERALA STATE HUMAN RIGHTS COMMISSION, TURBO PLUS TOWERS, P.M.G. JUNCTION, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM-695 033, REPRESENTED BY ITS REGISTRAR.`** ``` BY ADVS. SRI.ENOCH DAVID SIMON JOEL SRI.RONY JOSE ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W. P. (C) No. 20484 of 2019 -2- ## **J U D G M E N T** S. Manikumar, C. J. Petitioner has filed this writ petition challenging the order of the Kerala State Human Rights Commission in HRMP No. 10557 of 2015 dated 04.07.2016. 2. Short facts leading to the filing of the writ petition are as under:- 2.1. Petitioner is a Grama Panchayat. According to the petitioner, Mr. Rajendran, the 1[st] respondent, has filed a complaint before the Kerala State Human Rights Commission, the 2[nd] respondent, alleging that the registered property belonging to the 1[st] respondent was trespassed upon by members of the petitioner Grama Panchayat, and a road was cut across the property. Notice was served on the petitioner, who, vide their objection dated 09.05.2016, contended that the widening of the road happened seven years back. The existing road was widened on either side by increasing the width by 1 ½ feet by leveling the soil. On enquiry, petitioner came to know that persons residing nearby had widened the same for their easy ingress and egress W. P. (C) No. 20484 of 2019 -3- and the Panchayat had nothing to do with it. 2.2. Petitioner has submitted that the Commission, on the basis of the report submitted by the Additional Tahsildar, Kattakkada, by order dated 04.07.2016, wrongly concluded that it was not possible for the petitioner to wash off its hands, and therefore, was bound to pay compensation, and also restore back the property used for widening of the road, ignoring the fact that the widening of the road was carried out by the general public, so as to give easy access to the tribal settlement. The 1[st] respondent and the neighbouring owners had voluntarily surrendered portions of their property for widening of the road, and the road was laid with the full knowledge and consent of the 1[st] respondent in the year 2008, for approximately 5 meters width for a length of 500 meters. The petitioner was not liable or responsible for the same. The very fact that the complaint has been filed after a long lapse of 7 years after the road has been widened clearly indicates the malafides of the 1[st] respondent, which has been completely ignored by the 2[nd] respondent. 2.3. Petitioner has further submitted that the 1[st] respondent sought for implementation of Ext. P3 and notice dated 18.06.2018 was W. P. (C) No. 20484 of 2019 -4- received by the petitioner from the State Government authorities demanding explanation on the side of the Panchayat. The complaint does not fall within the purview of the 2[nd] respondent and the 2[nd] respondent has absolutely no jurisdiction to entertain a complaint of this nature, which can only be adjudicated by a civil court. Furthermore, the Commission went wrong in passing orders as against the petitioner, without gathering any evidence as to who had actually trespassed and widened the road, and imposition of orders to restore as well as payment of compensation, is illegal and against all principles of natural justice, equity and good conscience. Ext. P3 order is therefore illegal, without jurisdiction, ultra vires and is vitiated by lack of application of mind and void ab initio, hence liable to be set aside. 2.4. Petitioner has also submitted that the present Secretary of the petitioner Panchayat took charge of his office only on 04.01.2018. The petitioner was not aware of Ext. P3 order of the Human Rights Commission in the complaint lodged by the 1[st] respondent. It was only when the representation dated 16.01.2018 was submitted by the 1[st] respondent before the petitioner's Panchayat, the petitioner came to understand that Ext. P3 order was passed by the Human Rights W. P. (C) No. 20484 of 2019 -5- Commission. The file pertaining to the case filed by the 1[st] respondent was misplaced, and in spite of the best efforts on the part of the petitioner to trace out the same, the same could not be located in time. 2.5. That apart, it is submitted that in view of the fact that the 1[st] respondent had approached the Government to implement Ext. P3 order of the 2[nd] respondent, the Panchayat Committee on 17.10.2018 took a decision to challenge the decision of the 2[nd] respondent before this Court and also filed a detailed reply to the Government, informing the reasons as to why the order cannot be implemented. 3. Order of the Kerala State Human Rights Commission in HRMP No. 10557 of 2015 dated 04.07.2016, is reproduced:- “Report of Kaattakkada Additional Thahasildar received which states that property of complainant is measured and demarcated. Sketch is produced. Report says that the road in front of the property of complainant which was having 3.1 Metre width is now increased to 4.2 Meter and it is clear that the property of complainant is encroached upon. A report was given by Ottassekharamangalam Grama Panchayath, which says that Panchayath has no role in increasing the width of the road. But the Panchayath cannot evade from that and the Panchayath should give compensation to the complainant. Otherwise, The W. P. (C) No. 20484 of 2019 -6- Panchayath should give the property which was acquired for widening the road back to the complainant. Otherwise, complainant can take back the land himself and if necessary, Police should give protection. Complainant's property can be acquired only through Land Acquisition. Under Article 300(A) of The Constitution, private property is a constitutional Right. For the road widening or any other public purpose, land can be acquired only after giving compensation. It is a Criminal offence otherwise. It is the duty of the Police to stop unlawful activities and the police should not hesitate to do their duty. If the complainant wants to remove the electric post for convenience, he can give a complaint to The Electricity Office. With the above directions, this complaint is closed.” 4. Being aggrieved, instant writ petition is filed by the Ottasekharamangalam Grama Panchayat on the grounds inter alia that Ext. P1 complaint filed by the 1[st] respondent does not disclose any involvement of any public servant, and it relates to civil dispute, as the subject matter of the complaint relates to right regarding immovable property for which the appropriate forum is a civil court. There is also absolutely no allegation regarding any violation of human rights. 5. Petitioner has contended that Regulation 17 of the Kerala State Human Rights Commission (Procedure) Regulation, 2001, W. P. (C) No. 20484 of 2019 -7- clearly ousts complaints relating to civil disputes, service matters, labour or industrial disputes, and also those complaints which do not raise any violation of human rights, and those which do not disclose the involvement of any public servant. 6. Petitioner has further contended that the complaint does not fall within the purview of the Human Rights Commission and the Human Rights Commission has absolutely no jurisdiction to entertain a complaint of this nature, which can only be adjudicated by a civil court. Furthermore, the Commission went wrong in passing orders as against the petitioner without gathering any evidence as to who had actually trespassed and widened the road and imposition of orders to restore as well as payment of compensation is illegal and against all principles of natural justice, equity and good conscience. 7. Petitioner has also contended that ordinarily, the complaints relating to the events which happened more than one year before the making of complaints are not maintainable. The very fact that the complaint has been filed after long lapse of 7 years after the road has been widened clearly indicates the malafides of the 1[st] respondent and the Commission ought to have rejected the same in limine. W. P. (C) No. 20484 of 2019 -8- 8. Today, when the matter came up for hearing, though Mr. Enoch David Simon Joel, learned counsel for the 1[st] respondent, made submissions relying on a decision of this Court in **Kallara Grama Panchayat v. Kerala Human Rights Commission [ILR 2021 (3) Kerala 910]** that compensation can be awarded in respect of land taken over by the Panchayats as right to property is declared as a human right, this Court is not inclined to agree with the contention for the reason that in **Kallara Grama Panchayat** ’s case, on going through the material on record therein, this Court has categorically found that there is no denial on the part of the petitioner Panchayat in taking over the land surrendered by the 3[rd] respondent therein, and laying of the road was also admitted. In such circumstances, having regard to the provisions of the Protection of Human Rights Act, 1993, we directed payment of compensation. Facts in **Kallara Grama Panchayat** ’s case is in opposite to the instant case. Facts of the instant case are not the same. 9. Per contra, Mr. R. S. Kalkura, learned counsel for the petitioner, has invited our attention to the decision in **Manikyamma G. and Others v. Roudri Cooperative Housing Society Ltd. and** W. P. (C) No. 20484 of 2019 -9- **others [2015 KHC 1598]** , wherein the Hon’ble Apex Court has held that the Human Rights Commission does not have any jurisdiction to deal with the disputed questions of title and possession of the property. 10. Learned counsel for the petitioner has also invited our attention to the decision in **Leelamma Rajan @ Sosamma v. State of Kerala and Others [2021 KHC 634]** , wherein this Court has held that when evidence is required to be produced to adjudicate rights of the rival contentions, moreso, in the nature of a civil dispute, the same cannot be entertained by the Commission, like any other complaint, not dealing with a civil dispute. 11. Giving due consideration to the material on record, we find that the Ottasekharamangalam Grama Panchayat has totally denied the taking over of the land and widening of the road by the said Panchayat. When facts relating to title, taking over and possession are disputed, the Human Rights Commission, ought to have relegated the complainant to prefer a regular suit, wherein evidence can be adduced. Instead, merely acting on the report of the Kaattakkada Additional Tahsildar and a sketch, Human Rights Commission, without adverting to the case of the Panchayat, has directed restoration of the property, W. P. (C) No. 20484 of 2019 -10- besides directing compensation to the complainant. In the light of the above discussion and the decisions considered supra, we are of the view that the impugned order of the Kerala State Human Rights Commission requires to be interfered with, and accordingly, the impugned order is set aside. Writ petition is allowed. **Sd/S. MANIKUMAR CHIEF JUSTICE** **Sd/MURALI PURUSHOTHAMAN JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE W. P. (C) No. 20484 of 2019 -11- ## **`APPENDIX OF WP(C) 20484/2019`** ``` PETITIONER EXHIBITS EXHIBIT P1 ``` - **`TRUE COPY OF THE COMPLAINT BEARING NO. 10557 OF 2015 TRIVANDRUM DATED 19.10.2015 FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT.`** - **`EXHIBIT P1(A) EXHIBIT P2`** - **`TRUE ENGLISH TRANSLATION OF EXHIBIT P1.`** - **`TRUE COPY OF THE REPORT DATED 9.5.2016 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.`** - **`EXHIBIT P2(A) EXHIBIT P3`** - **`TRUE ENGLISH TRANSLATION OF EXHIBIT P2`** - **`TRUE COPY OF THE ORDER DATED 4.7.2016 IN COMPLAINT NO. HRMP NO. 10557/2015`** - **`EXHIBIT P3(A) EXHIBIT P4`** - **`TRUE ENGLISH TRANSLATION OF EXHIBIT P3.`** - **`TRUE COPY OF THE LETTER BEARING NO. G190103764 DATED 14.1.2019.`** - **`EXHIBIT P4(A) EXHIBIT P5`** - **`TRUE ENGLISH TRANSLATION OF EXHIBIT P4.`** - **`TRUE COPY OF THE COMMUNICATION FROM OFFICE OF THE DEPUTY DIRECTOR, PANCHAYATH, THIRUVANANTHAPURAM TO PETITIONER DATED 13.2.2019.`** - **`EXHIBIT P5(A) EXHIBIT P6`** - **`TRUE ENGLISH TRANSLATION OF EXHIBIT P5. TRUE COPY OF THE NOTICE BEARING NO. G180600534 DATED 1.6.2018.`** - **`EXHIBIT P6(A) EXHIBIT P7`** - **`TRUE ENGLISH TRANSLATION OF EXHIBIT P6.`** ``` TRUE COPY OF THE REPRESENTATION DATED 16.1.2018 SUBMITTED BY THE FIRST RESPONDENT BEFORE THE PETITIONER. TRUE ENGLISH TRANSLATION OF EXHIBIT P7. TRUE COPY OF THE REPORT SUBMITTED BY ASSISTANT ENGINEER DATED 07.01.2017. ``` - **`EXHIBIT P7(A) EXHIBIT P8`** ``` EXHIBIT P8(A) EXHIBIT P9 ``` ``` TRUE ENGLISH TRANSLATION OF EXHIBIT P8. TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT OF KERALA, DATED 27.4.2019. ``` ``` EXHIBIT P9(A) ``` ``` TRUE ENGLISH TRANSLATION OF EXHIBIT P9. ```