Rajappan v. Elamkunnappuzha Grama Panchayat and Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 1ST DAY OF AUGUST 2012/10TH SRAVANA 1934 WP(C).No. 13844 of 2011 (E) --------------------------- PETITIONER(S): - ------------- RAJAPPAN, AGED 52 YEARS, S/O. APPU, VELLAMPURA KUZHI, OCHAMTHURUTHU PUTHUVYPPE VILLAGE, ELAMKUNNAPPUZHA. BY ADV. SRI.GEORGE SEBASTIAN RESPONDENT(S): -------------- 1. THE ELAMKUNNAPPUZHA GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY.PIN-682 503 2. THE SECRETARY, ELAMKUNNAPPUZHA GRAMA PANCHAYAT.IN-682 503 3. MRS. SHEELA BABU, W/O. BABU.P.K., PUTHENVEETTIL, OCHAMTHURUTHU.P.O., KOCHI-682508 4. CLEETUS JOSEPH, S/O. JOSEPH, OLIPPARAMBIL HOUSE, OCHAMTHURUTHU.P.O. ELAMKUNNAPPUZHA, ERNAKULAM DISTRICT-682503 5. FLORY AUGUSTINE, CHAKKALAKKAL HOUSE, OCHAMTHURUTHU, ELAMKUNNAPPUZHA, ERNAKULAM DISTRICT-682503 BY ADV. SRI.S.SHANAVAS KHAN-R1 & 2 SRI.RAJESH VIJAYENDRAN-R3 TO 5 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## W.P.(C).NO.13844/11 ## APPENDIX PETITIONER's EXHIBITS: - P1:A TRUE COPY OF THE NOTICE DATED 9.11.2010 ISSUED TO THE PETITIONER. - P2:A TRUE COPY OF THE OBJECTION DATED 12.11.2010 PREFERRED BY THE PETITIONER. - P3:A TRUE COPY OF THE JUDGMENT DATED 17.9.2010 IN W.P.(C).NO.26419 OF 2010. - P4:A TRUE COPY OF THE NOTICE DATED 30.11.2010 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. - P5:A TRUE COPY OF THE APPEAL DATED 4.12.2010 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. - P6:A TRUE COPY OF THE JUDGMENT DATED 7.12.2010 IN W.P.(C).36439/2010. - P7:A TRUE COPY OF THE COMMUNICATION ISSUED BY THE SECOND RESPONDENT REGARDING REJECTION OF THE APPEAL. - P8:A TRUE COPY OF THE ORDER REJECTING THE APPEAL DATED 30.12.2010 ALONG WITH THE DECISION OF THE COMMITTEE. - P9:A TRUE COPY OF THE REPORT OF THE SUB COMMITTEE DATED 30.12.2010. - P10:A TRUE COPY OF THE MEMORANDUM OF REVISION (REVISION PETITION 4/2011). - P11:A TRUE COPY OF THE ORDER DATED 17.5.2011 IN REVISION PETITION 4/2011 PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. - P12:A TRUE COPY OF THE SKETCH DATED 4.12.2009 ISSUED ALONG WITH EXT.P4. - P13:A TRUE COPY OF THE PETITIONER'S TITLE DEED DATED 7.8.1993. - P14:A TRUE COPY OF THE SKETCH PREPARED BY THE OFFICIALS OF VILLAGE OFFICE, PUTHUVYPPE IN THE YEAR 1993. - P15:A TRUE COPY OF THE ASSIGNMENT IN FAVOUR OF LAKSHMI DATED 21.4.1986. P16:A TRUE COPY OF THE TAX RECEIPT DATED 8.7.1993 IN FAVOUR OF REMANI. RESPONDENTS' EXHIBITS: R3(A):COPY OF THE SKETCH. R3(B):TRUE COPY OF REPORT OF VILLAGE OFFICER, DATED 17.7.2010. R3(C):TRUE COPY OF LETTER DATED 26.7.2010 OF RDO, FORT KOCHIN. R3(D):TRUE COPY OF THE JUDGMENT DATED 17.9.2010 OF HIGH COURT IN W.P.(C). 26419 OF 2010. R3(E):TRUE COPY OF LETTER/UNDERTAKING DATED 17.12.2010. //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.13844 OF 2011 ==========================** Dated this the 1[st] day of August, 2012 ## **JUDGMENT** The petitioner is a resident of Elamkunnappuzha Grama Panchayat. This writ petition has been filed seeking issuance of a writ of certiorari calling for the originals of Ext.P1, P4, P8 and P11 and to quash them and also for a declaration that the first respondent Grama Panchayat alone has power to initiate and take steps under the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for unauthorised occupation Rules, 1996 (for short the 'Rules') and the second respondent has no power to initiate the proceedings under the Rules. 2. As per Ext.P1 notice dated 9.11.2010, the petitioner was directed by the second respondent to surrender the purampokku road in his possession within 15 days from the date of receipt of the said notice. He was also asked to file objections, if any, within the said **WPC.13844/11** 2 period. On its receipt, the petitioner preferred Ext.P2 objection dated 12.11.2010 before the second respondent. Thereafter, he was called for a discussion at the office of the first respondent by the President of the said Grama Panchayat. He was informed from the office of the first respondent that he would be evicted in pursuance of Ext.P1 without any further notice at any time in view of the directions of this Court in Ext.P3 judgment in W.P.(C.).No.26419 of 2010. The said writ petition was filed by the third respondent herein. Obviously, the petitioner was not a party to Ext.P3 judgment. As per the said judgment, this Court directed the first respondent and its officers to remove the encroachments into Old Panchayat Road after following the procedure prescribed under the Rules. Contending that steps were taken to demolish the residential house without resorting to the procedures under the Rules, the petitioner and one Vimala Sundaram approached this Court by filing W.P.(C).No.36439 of 2010. That writ petition was disposed of recording the undertaking of the standing counsel for respondents 1 and 2 that they would scrupulously follow the Rules. Subsequently, Ext.P4 notice was served on the petitioner. **WPC.13844/11** 3 It is contended that the petitioner was not heard prior to the issuance of Ext.P4. It did not say anything as to what is the extent of encroachment though certain sketches were appended therewith, it is contended. According to the petitioner, it did not contain the details with respect to the extent of the alleged encroachment and description of the property possessed by him. It is contended that no measurement with notice to the petitioner was made either before or after the issuance of Ext.P4. The petitioner was, therefore, constrained to prefer Ext.P5 appeal before the first respondent under section 276(1) of the Kerala Panchayat Raj Act (for short the 'Act'). Alleging reluctance on the part of the first respondent to consider Ext.P5 appeal, W.P.(C).No.36439 of 2010 was filed before this Court by the petitioner and the said Vimala Sundaram. That writ petition was disposed of as per Ext.P6 judgment. As per Ext.P6 judgment, till the disposal of Ext.P5 appeal, further coercive steps were stayed. Later, as per Ext.P7, the petitioner was informed that Ext.P5 appeal was rejected and a copy of the order of rejection viz., Ext.P8 was also appended thereto. The pleadings in this writ petition would reveal **WPC.13844/11** 4 that the petitioner himself would admit that prior to the passing of Ext.P7, some settlement talks were held at the initiation of the first respondent. A sub-committee was constituted to look into the matter and to reach a settlement and that in the said settlement talks, the petitioner's wife had actively participated. It is stated in the writ petition thus:- “For the purpose of giving a quietus to the matter, the petitioner's wife had submitted before - the sub committee that she would remove some improvements in her property as suggested by - the sub committee. The said undertaking was given only to reach a consensus as a result of the mediation talks suggested by the sub-committee. (emphasis added) 3. Later, Ext.P9 report was submitted by the sub-committee. The contention of the petitioner is that a bare perusal of Ext.P9 would reveal that he had acted in terms of the settlement whilst the fifth respondent had retreated from the undertaking and it is only on account of that, the matter could not be settled. Later, challenging Ext.P8 order, the petitioner preferred Ext.P10 statutory revision petition before the Tribunal for Local Self Government Institutions **WPC.13844/11** 5 under section 276 (5) of the Act. Initially, on admitting Ext.P10 revision petition, an interim stay of Ext.P8 was granted. Respondents 3 to 5 got impleaded in the revision petition and they sought for dismissal of the revision petition. Subsequently, Ext.P11 order was passed dismissing the revision petition. This revision petition has been filed in the said circumstances. 4. I have heard the learned counsel for the petitioner learned standing counsel for respondents 1 and 2 and also the learned counsel appearing for respondents 3 to 5. 5. The contention of the petitioner is that no measurement with notice to him was made by any competent officer either before or after the issuance of Ext.P1 and that he was not informed about the extent and description of the alleged encroachment. Relying on the provisions under Rule 5 of the Rules, it is contended that in the absence of description of the alleged encroachment, it cannot be construed as a notice in terms of the provisions. In short, the **WPC.13844/11** 6 contention of the petitioner is that the power to remove encroachment rests solely with the panchayat in terms of the provisions under the Rules and the second respondent was not justified in initiating the proceedings against the petitioner. In short, Ext.P1 is ab initio void in the circumstances, according to the petitioner. On account of the failure to give description of the land unauthorisedly occupied by the petitioner, there is failure in complying with the mandatory requirements, it is further contended. According to the petitioner, he has not encroached into purampokku or road. It is with the aforesaid averments that he filed this writ petition seeking the aforesaid reliefs. 6. A statement has been filed in this writ petition by the second respondent. It is stated therein that the petitioner has encroached into the public property and hence in terms of the provisions under section 169 of the Act, the Panchayat is bound to initiate action under the Rules for removing the encroachment. It is stated that in terms of Ext.P3 judgment, respondents 1 and 2 are bound to take steps in accordance with law to remove the illegal **WPC.13844/11** 7 encroachment. The petitioner is very well aware of the extent of encroachment made by him lest his wife would not have given an undertaking to remove the illegal encroachment voluntarily, it is stated therein. All the relevant aspects with reference to the relevant provisions of law have been considered by the Tribunal for Local Self Government Institutions while passing Ext.P11 order dismissing Ext.P10 revision, it is further stated. It is further contended that the petitioner is taking hyper technical grounds solely with the intention to protract eviction proceedings. 7. A counter affidavit has been jointly filed by respondents 3 to 5. They are residents of Ochamthuruth within the limits of the first respondent panchayat. The third respondent is residing near the Vypin Pallipuram Road. The old panchayat road having a width of 4-5 metres runs parallel to the Vypin -Pallipuram road. They categorically state that the petitioner had encroached into the purampokku road. Respondents 3 to 5 virtually supports the steps taken by respondents 1 and 2 and contend that it was absolutely **WPC.13844/11** 8 necessary to remove the encroachment made by the petitioner herein. 8. A reply affidavit has been filed by the petitioner herein and along with it, he has produced certain documents viz., Exts.P13 to P16 to substantiate his contention that he had not encroached into the public road. 9. At the very outset, I am of the view that the contention of the second respondent that the attempt on the part of the petitioner is only to protract eviction proceedings is having substance. Admittedly, the petitioner along with another person had earlier approached this Court by filing W.P.(C).No.36439 of 2010 alleging reluctance on the part of the first respondent in considering Ext.P5 appeal and the stay petition. As already noticed hereinbefore, Ext.P5 appeal was filed against Ext.P4 notice. Taking note of the submissions made on behalf of the petitioners therein that writ petition was disposed of as per Ext.P6 with a direction to consider and pass orders on Ext.P5 appeal. It is to be noted that, in that writ **WPC.13844/11** 9 petition, the main grievance of the petitioner is only with respect to the reluctance on the part of the first respondent in the disposing of Ext.P5 appeal. Evidently, he had not taken up or pursued any grievance as against Ext.P1 notice and also had not raised any question regarding the competency of the Secretary. The petitioner cannot contend that principles of res judicata and constructive res judicata are inapplicable to writ proceedings. Therefore, if at all the petitioner got any grievance as against Ext.P1 or regarding the competency or otherwise of the Secretary, he should have raised such contentions in W.P.(C).No.36439 of 2010 and should have pursued with the same. Having accepted Ext.P6 judgment without any demour, the petitioner cannot now turn around and seek for resurrection of those questions at this stage. That apart, the challenge against the proceedings on the ground of incompetency on the part of the Secretary of the Grama Panchayat cannot be sustained in the light of Exts.P3 and P6 judgments. As per Ext.P3, this Court directed the Elamkunnappuzha Grama Panchayat and its officers to remove the encroachments into old panchayat road within its local limits after **WPC.13844/11** 10 following the procedures under the Rules. True that in the decision in **John Abraham v. Pindimana Grama Panchayat [2007 (3) KLT SN 34],** this Court found that in respect of the property which is claimed to be vested with the panchayat under section 169, it is the panchayat which is the authority. There can be no doubt with respect to the position that such functions and authority vested with the panchayat has to be discharged though competent officers. It is taking note of such position that, as per Exts.P3, this Court directed the panchayat and its officers to remove the encroachment after following the procedures prescribed under the Rules. By virtue of Exts.P3 and P6, it cannot be said that the Secretary is not bound to comply with the directions. In fact, it was the bounden duty of the Secretary to take appropriate action to remove the encroachments into the panchayat road in terms of the provisions under the Act and the Rules as also in the light of Exts.P3 and P6. In the said circumstances, the challenge against the procedures that culminated in Ext.P11 alleging incompetency on the Secretary of the panchayat cannot be sustained. In this context, it is to be noted that in fact, the petitioner was a party **WPC.13844/11** 11 to Ext.P6 judgment.The other ground raised by the petitioner to challenge the proceedings is the non-compliance with the statutory provisions under Rule 5 of the Rules. The main contention is that Ext.P1 did not contain the description of the alleged encroachment and thereby, he is incapacitated to identify the actual encroachment as also its extent. I have no hesitation to say that the petitioner is actually feigning ignorance about the same. The petitioner himself admits in the writ petition that in the settlement talks held by the first respondent, his wife had actively participated and gave undertaking that to give quietus to the matter, she would remove some improvements in the property as suggested by the sub committee. In the circumstances, the petitioner cannot be heard to contend that such an undertaking was given even without understanding the description and extent of the encroachment into the panchayat road. If they were not known, how such an undertaking could have been made. In fact, the petitioner did not have any such contention in the earlier proceedings. Having failed to raise such contentions and having given the undertaking to remove the encroachments into the old **WPC.13844/11** 12 panchayat road, the attempt on the part of the petitioner to protract the proceedings by raising hyper technical objections cannot be sustained. Above all, in this writ petition, this Court need only to look into the correctness or otherwise of the decision in Ext.P11 by the Tribunal for Local Self Government Institutions. Evidently, the petitioner, panchayat and respondents 3 to 5 were afforded with ample opportunity by the Tribunal to raise their respective contentions and all the relevant contentions were considered in the light of the relevant provisions of law. The Tribunal took note of the fact that the survey numbers mentioned in the survey plan and the basic tax register would make it abundantly clear that the purampokku road vested in the Government and it is being maintained by the panchayat. It is not a road declared as district road nor is a highway or a state highway or national highway and therefore, it stood vested in the panchayat in terms of the provisions under section 169 of the Act. The panchayat has a duty under the provisions of the Rules and in terms of the specific directions under Ext.P3 to remove the encroachments upon the said road. The report of the village officer adverted to in detail in **WPC.13844/11** 13 Ext.P11 would clearly indicate that there is encroachment by putting up constructions across the road. Having identified the encroachment and establishing the right of the panchayat thereon, the panchayat cannot be restrained from removing the encroachments. It is in the said circumstances that the writ petition was dismissed by the Tribunal so as to pave way to the panchayat to remove the encroachment, in accordance with the provisions. There is no illegality or irregularity in the proceedings initiated as per Ext.P1 that ultimately culminated in Ext.P11. There is no merit in the writ petition and accordingly, it is dismissed. ## **C.T. RAVIKUMAR (Judge)** ## **spc/** **WPC.13844/11** 14 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **WPC.13844/11** 15