SOSAMMA CHACKO (through Power of Attorney Holder Samuval Thomas) v STATE OF KERALA & ORS (WP(C) Nos. 32201/2018, 32257/2018 & 33391/2018)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 06TH DAY OF JUNE 2019 / 16TH JYAISHTA, 1941** ## **WP(C).No. 32201 of 2018** ## **PETITIONER:** **SOSAMMA CHACKO AGED 71 YEARS, W/O.LATE O.P.CHACKO, OLIKKAL HOUSE, THURUTHIKKAD P.O., THRUTHIKKAD MURI, KALLOOPPARA VILLAGE, MALLAPPALLY TALUK REPRESENTING THROUGH HER POWER OF ATTONEY HOLDER SAMUVAL THOMAS, AGED 49 YEARS, S/O.THOMAS MATHEW, KOLLAMPARAMBIL HOUSE, NARAKATHANI P.O., KEEZHVAIPUR MURI, MALLAPPALLY VILLAGE, MALLAPPALLY TALUK.** **BY ADVS. SRI.CHERIAN GEE VARGHESE SRI.BIJU HARIHARAN SRI.P.C.SHIJIN SRI.P.HARIDAS SRI.R.B.BALACHANDRAN SRI.RENJI GEORGE CHERIAN SRI.RISHIKESH HARIDAS** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS PRINCIPAL SECRETARY,**| ||**DEPARTMENT OF REVENUE, STATE SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695001**| |**2**|**KALLOOPPARA GRAMA PANCHAYATH,**| ||**REPRESENTED ITS SECRETARY, PIN 689583**| |**3**|**B.MANIYAN,**| ||**PALLIKKAKUZHIYIL HOUSE,**| ||**THURUTHIKKAD P.O.**| ||**THURUTHIKKADU MURI,**| ||**KALLOOPPARA VILLAGE,**| ||**MALLAPPALLY TALUK PIN 689583.**| W.P.(C) No.32201/18 & Conn. Cases 2 **4 MANOJ PHILIP, AGED 47 YEARS S/O.LATE O.P.CHACKO,OLIKKAL HOUSE, THURUTHIKKAD P.O., THURUTHIKKAD MURI, KALLOOPPARA VILLAGE, MALLAPPALLY TALUK,PIN 689583 NOW RESIDING AT SENSOR SPARK PROGRAM OFFICER, ALMAJDOUIE HOLDING COMPANY,P.O.BOX 336, DAMMAM,SAUDI ARABIA.** **5 MANJU KUMARI CHACKO, AGED 44 YEARS D/O.LATE O.P.CHACKO,OLIKKAL HOUSE, THURUTHIKKAD P.O.,THURUTHIKKAD MURI, KALLOOPPARA VILLAGE, MALLAPPALLY TALUK,PIN 689583, NOW RESIDING AT STAFF NURSE, 3C MALE MEDICAL KING FAHAD UNIVERSITY HOSPITAL, AKRABIYA,ALKHOBAR,SAUDI ARABIA.** **BY ADVS. SMT.SHIJIMOL M.MATHEW SRI.J.R.PREM NAVAZ SRI.T.P.PRADEEP** ## **SRI PAUL ABRAHAM VAKKANAL- GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.06.2019, ALONG WITH WP(C).32257/2018 AND WP(C).33391/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.32201/18 & Conn. Cases 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 06TH DAY OF JUNE 2019 / 16TH JYAISHTA, 1941 WP(C).No.32257 of 2018** ## **PETITIONER:** **SOSAMMA CHACKO AGED 71 YEARS W/O.LATE O.P.CHACKO, OLIKKAL HOUSE, THURUTHIKKAD P.O, THURUTHIKKAD MURI, KALLOOPPARA VILLAGE, MALLAPPALLY TALUK , REPRESENTING THROUGH HER POWER OF ATTORNEY HOLDER SAMUEL THOMAS, AGED 49 YEARS, S/O.THOMAS MATHEW, KOLLAMPARAMBIL HOUSE, NARAKATHANI P.O., KEEZHVAIPUR MURI, MALLAPPALLY VILLAGE, MALLAPPALLY TALUK.** **BY ADVS. SRI.CHERIAN GEE VARGHESE SRI.BIJU HARIHARAN SRI.P.C.SHIJIN SRI.P.HARIDAS SRI.R.B.BALACHANDRAN SRI.RENJI GEORGE CHERIAN SRI.RISHIKESH HARIDAS** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, STATE SECRETARIAT, THIRUVANANTHAPURAM - 695001** **2 VILLAGE OFFICER VILLAGE OFFICE, KALLOOPPARA, PIN - 689 583.** W.P.(C) No.32201/18 & Conn. Cases 4 **3 B. MANIYAN PALLIKKAKUZHIYIL HOUSE, THURUTHIKKAD P.O., THURUTHIKKAD MURI, KALLOOPPARA VILLAGE, MALLAPPALLY TALUK, PIN - 689 583** **4 MANOJ PHILIP AGED 47 YEARS S/O.LATE O.P.CHACKO, OLIKKAL HOUSE, THURUTHIKKAD P.O, THURUTHIKKAD MURI, KALLOOPPARA VILLAGE, MALLAPPALLY TALUK, PIN-689583, NOW RESIDING AT SENSOR SPARK PROGRAM OFFICER, ALMAJDOUIE HOLDING COMPANY, P.O.BOX 336, DAMMAM, SAUDI ARABIA.** **5 MANJU KUMARI CHACKO AGED 44 YEARS D/O.LATE O.P. CHACKO, OLIKKAL HOUSE, THURUTHIKKAD P.O, THURUTHIKKAD MURI, KALLOOPPARA VILLAGE, MALLAPPALLY TALUK,PIN-689583, NOW RESIDING AT STAFF NURSE, 3C MALE MEDICAL KING FAHAD UNIVERSITY HOSPITAL, AKRABIYA, ALKHOBAR, SAUDI ARABIA.** **BY ADVS. SMT.SHIJIMOL M.MATHEW SRI.T.P.PRADEEP** ## **SRI.PAUL ABRAHAM VAKKANAL, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.06.2019, ALONG WITH WP(C) NOS.33391/2018 AND 32201/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.32201/18 & Conn. Cases 5 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 06TH DAY OF JUNE 2019 / 16TH JYAISHTA, 1941** ## **WP(C).No. 33391 of 2018** ## **PETITIONER:** **MANIYAN.B., S/O.BHASKARAN, PALLIKKAKUZHIYIL HOUSE, THURTHIKAD P.O-689583, MALLAPPALLY, PATHANAMTHITTA DISTRICT.** **BY ADVS. SRI.T.P.PRADEEP SMT.NITHYA VIJAYAN SRI.P.K.SATHEES KUMAR SRI.S.SREEDEV** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR, PATHANAMTHITTA-PIN-689 645.** - **2 THE REVENUE DIVISIONAL OFFICER, THIRUVALLA-689 101.** - **3 KALLOOPPARA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, KALLOOPPARA.P.O., MALLAPPALLY, PATHANAMTHITTA DISTRICT, PIN-689583.** - **4 SOSAMMA CHACKO, OALICKAL HOUSE, THURITHIKAD.P.O., MALLAPPALLY, PATHANAMTHITTA DISTRICT, PIN-689597.** - **5 MANOJ PHILIP, OALICKAL HOUSE, THURITHIKAD.P.O., MALLAPPALLY, PATHANAMTHITTA DISTRICT, PIN-689597.** W.P.(C) No.32201/18 & Conn. Cases 6 **6 MANJUKUMARY CHACKO,** **OALICKAL HOUSE, THURITHIKAD.P.O., MALLAPPALLY, PATHANAMTHITTA DISTRICT, PIN-689597.** **BY ADVS. SRI.CHERIAN GEE VARGHESE SRI.J.R.PREM NAVAZ SRI.BIJU HARIHARAN SRI.P.C.SHIJIN SRI.P.HARIDAS SRI.R.B.BALACHANDRAN SRI.RENJI GEORGE CHERIAN SRI.RISHIKESH HARIDAS** **SRI.PAUL ABRAHAM VAKKANAL, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.06.2019, ALONG WITH WP(C).32257/2018 AND WP(C).32201/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.32201/18 & Conn. Cases 7 ## **JUDGMENT** Since common issue is raised in these Writ Petitions, they are being disposed of by this common judgment. 2. W.P.(C) No.32201 of 2018 :- The petitioner and respondents 4 and 5 are co-owners of 9.40 ares of property comprised in S.No.107/14 of Kallooppara Village. The third respondent is having an extent of 3.24 ares of land in R.S.No.102/6-2 of Kallooppara Village, which he purchased in the year 2016, which is situated on the western side of the properties of respondents 4 and 5. According to the petitioner, the third respondent excavated the property for the purpose of construction of a building. As a result of which, the lateral support of the petitioner’s property and that to the granite retaining boundary wall was lost. The petitioner has filed this Writ Petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P2 communication dated 24.9.2018, which is one issued to the fourth respondent herein, whereby he has been asked to cut and remove certain anjili and rubber trees standing on his property, on the ground that it is causing threat to the residential building of the third respondent. The Secretary of the second respondent Grama Panchayat has issued Ext.P2, in exercise of his powers under Section 238(1)(a) of the Kerala Panchayat Raj Act. W.P.(C) No.32201/18 & Conn. Cases 8 2.1. On 3.10.2018, when this Writ Petition came up for admission, the learned Government Pleader took notice for the first respondent. This Court issued urgent notice by speed post to the rest of the respondents, returnable within two weeks. This Court has also granted an interim order to the effect that coercive action pertaining to Ext.P2 shall be kept in abeyance for a period of one month at the risk and cost of the petitioner. The said interim order, which was extended from time to time, is still in force. 2.2. Along with I.A.No.1 of 2019, the petitioner has produced certain additional documents. A counter affidavit has been filed by the third respondent opposing the reliefs sought for in this Writ Petition, along with an application to vacate the interim order. 3. W.P.(C) No.32257 of 2018 :- This Writ Petition is filed by the petitioner in W.P.(C) No.32201 of 2018, seeking an order to set aside Ext.P2 order dated 26.9.2018 issued by the second respondent, whereby the petitioner has been required to remove one anjili and 3 rubber trees standing on her property on the basis of a complaint preferred by the third respondent. The document marked as Ext.P1 is a copy of the plaint in O.S.No.338 of 2018 filed by the petitioner before the Munsiff's Court, Thiruvalla against the third respondent, claiming compensation and to reconstruct the retaining wall and also to W.P.(C) No.32201/18 & Conn. Cases 9 reconstruct the roof of the third respondent’s building, so that no water from the roof of his building fall into the petitioner’s property. 3.1. On 4.10.2018, when this Writ Petition came up for admission, the learned Government Pleader took notice for respondents 1 and 2. This Court issued notice to respondents 3 to 5 by speed post. This Court has also granted an interim stay of further proceedings pursuant to Ext.P2 for a period of three weeks. The said interim order, which was extended from time to time, is still in force. 4. WP(C) No.33391 of 2018:- The third respondent in W.P.(C) No.32201 of 2018 has filed this Writ Petition, seeking a writ of mandamus commanding respondents 1 and 2 to initiate action under Section 144 of Cr.P.C. to cut and remove the trees standing in the property of respondents 4 to 6 causing threat to the life and property of the petitioner and also to remove the remains of the retaining wall causing nuisance to the house of the petitioner. The petitioner has also sought for a writ mandamus commanding the first respondent to dispose of Ext.P4 forthwith; the second respondent to dispose of Ext.P1 forthwith; and the third respondent to dispose of Ext.P5 forthwith. 4.1. On 12.10.2018, when this Writ Petition came up for admission, the learned Government Pleader took notice for respondents 1 and 2. This Court issued notice by speed to the third respondent, W.P.(C) No.32201/18 & Conn. Cases 10 returnable within two weeks. A statement has been filed by the first respondent. The petitioner has filed I.A.No.2 of 2019, seeking an order to accept certain additional documents. 5. Heard the learned counsel for the petitioner in the respective Writ Petitions, the learned Government Pleader appearing for the official respondents and also the learned counsel for the party respondents. 6. The issue that arises for consideration in W.P.(C) 32201 of 2018 and 32257 of 2018 is as to the legality or otherwise of Ext.P2 order dated 24.9.2018 issued by the Secretary of Kallooppara Grama Panchayat and Ext.P2 order dated 26.9.2018 issued by the Village Officer, Kallooppara. Admittedly those orders are issued without notice to the Writ Petitioner in W.P.(C) No.32201 of 2018 and 32257 of 2018 or other co-owners. Ext.P2 in W.P.(C) No.32201 of 2018 is the one issued by the Secretary of the Grama Panchayat invoking the provisions of Section 238(1)(a) of the Kerala Panchayat Raj Act, 1994. 7. As held by this Court in **Thankamma v. Ezhumattur Grama Panchayat (2001(2) KLT 596)** , the powers under Section 238(1)(a) of the Kerala Panchayat Raj Act has to be exercised by the Panchayat Committee and not by the Secretary of the Grama Panchayat. Paragraphs 5 and 6 of the said decision read thus : W.P.(C) No.32201/18 & Conn. Cases 11 “5. The term Secretary and Panchayat have been separately defined, and one is not synnonym for another. As suggested at the bar, in a Panchayat area ramnification of proceedings in such sensitive matter may be greater than in a city, and perhaps the legislature thought that the responsibility for such decision should rest in the collective body, and is not to be conferred on an individual who may not be conversant with local flavours. 6. On giving through the provisions of the statute, I have to hold that the petitioner's contentions are justified and acceptable. When a threat was spoken to arise in the Panchayat, it was imperative that a decision is to be taken thereon. Appropriate orders should be issued to the Executive authority to set right the situation. The Secretary has no independent discretion, however. In the aforesaid circumstances, I do not think that Ext.P1 was validly issued and the order is hereby set aside. Since the complaint is subsisting and the order is set aside for technical reasons, I am of the view that the second respondent Panchayat will deal with the matter appropriately and expeditiously and after hearing the version of both sides, if necessary with further notice, orders as are warranted in public interest may be passed without undue delay.” 8. In such circumstances, Ext.P2 order dated 24.9.2018 in W.P.(C) No.32201 of 2018 cannot be sustained. Similarly, Ext.P2 order dated 26.9.2018 in W.P.(C) No.32257 of 2018 cannot also be sustained, since it is one issued by the second respondent, without notice to the petitioner or other co-owners of the property. W.P.(C) No.32201/18 & Conn. Cases 12 9. Accordingly, W.P.(C) Nos.32201 of 2018 and, 32257 of 2018 are disposed of setting aside Ext.P2 order dated 24.9.2018 in W.P.(C) No.32201 of 2018 and Ext.P2 order dated 26.9.2018 in W.P.(C) No.32257 of 2018. 10. Ext.P1 application dated 12.7.2018 made by the petitioner in W.P.(C) No.33391 of 2018 is now pending consideration before the second respondent. The learned counsel for respondents 4 to 6 would contend that the application filed by the Writ Petitioner seeking interference under Section 144 of the Criminal Procedure Code, 1971 has to be deferred till the disposal of O.S.No.338 of 2018, which is now pending consideration before the Munsiff’s Court, Thiruvalla. The said suit is one filed by the fourth respondent herein, claiming compensation and other reliefs against the petitioner. 11. Having considered the pleadings and materials on record and perusing the plaint in O.S.No.338 of 2018, which is placed on record as Ext.P1 (in W.P.(C) Nos.32201 and 32257 of 2018), this Court finds that the mere pendency of O.S.No.338 of 2018 before the Munsiff’s Court, Thiruvalla will not be a bar in the second respondent considering Ext.P1 application made by the petitioner, since the specific case of the petitioner in Ext.P1 is that the trees standing on the property of respondents 4 to 6 are causing serious threat to the petitioner’s W.P.(C) No.32201/18 & Conn. Cases 13 residential building. The photographs of those trees, which are placed on record as additional documents, would also indicate that an early decision on Ext.P1 application made by the petitioner before the second respondent Revenue Divisional Officer is highly essential, since monsoon season will commence very soon. In such circumstances, W.P.(C) No.33391 of 2018 is disposed of by directing the second respondent Revenue Divisional Officer to consider Exts.P1 and P4 representations made by the petitioner and take an appropriate decision thereon, strictly in accordance with law, with notice to the petitioner and also to respondents 4 to 6. A decision in this regard shall be taken as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K.NARENDRAN JUDGE** csl W.P.(C) No.32201/18 & Conn. Cases 14 ## **APPENDIX OF WP(C) 32201/2018** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO 338/2018 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT THIRUVALLA DATED 14.9.2018 FILED BY THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 24.9.2018 BY THE 2ND RESPONDENT.** W.P.(C) No.32201/18 & Conn. Cases 15 ## **APPENDIX OF WP(C) 32257/2018** **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE PLAINT IN OS NO.338/2018 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT THIRUVALLA DATED 14.09.2018 FILED BY THE PETITIONER.** **EXHIBIT P2** **TRUE COPY OF THE ORDER NO.101/18 DATED 26.09.2018 BY THE 2ND RESPONDENT.** **EXHIBIT P3** **TRUE COPY OF THE ORDER OF THE SECRETARY OF THE PANCHAYATH NO. C7.3974/18 DATED 24.09.2018.** W.P.(C) No.32201/18 & Conn. Cases 16 ## **APPENDIX OF WP(C) 33391/2018** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE COMPLAINT DATED 12.7.2018 SUBMITTED BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P2 TRUE COPY OF THE PHOTOGRAPHS. EXHIBIT P3 TRUE COPY OF THE COMPLAINT DATED 29.8.2018 SUBMITTED BEFORE THE TAHASILDAR, MALLAPPALLY.** - **EXHIBIT P4 TRUE COPY OF THE COMPLAINT DATED 19.9.2018 SUBMITTED BEFORE THE DISTRICT COLLECTOR, PATHANAMTHITTA.** - **EXHIBIT P5 TRUE COPY OF THE COMPLAINT DATED 29.8.2018 SUBMITTED BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE NEWS ITEM PUBLISHED IN MANGALAM DAILY ON 13.9.2018.** - **EXHIBIT P7 TRUE COPY OF THE NEWS ITEM PUBLISHED IN DESHABHIMANI DAILY ON 12.9.2018.** - **EXHIBIT P8 TRUE COPY OF THE NEWS ITEM PUBLISHED IN MALAYALA MANORAMA DAILY ON 12.9.2018.** - **EXHIBIT P9 TRUE COPY OF THE O.S.NO.338/2018 ON THE FILES OF MUNSIFF COURT, THIRUVALLA.** - **ADDITIONAL DOCUMENTS : EXHIBIT P10 TRUE COPY OF THE PHOTOGRAPHS** ## **csl**