Unnikrishnan and others vs. Secretary, Mudakuzha Grama Panchayath and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY, THE 13[TH] DAY OF OCTOBER 2023 / 21ST ASWINA, 1945 ``` ## **`WP(C) NO. 22558 OF 2022`** ## **`PETITIONERS:`** ``` 1UNNIKRISHNAN, AGED 45 YEARS S/O. BHASKARAN NAIR, GOPURATHINKAL HOUSE, AKANAD, VENGOOR WEST VILLAGE, CHUNDAKKUZHI P.O, ERNAKULAM DISTRICT, PIN 683 546. 2ARSHAL PETER, AGED 33 YEARS S/O. PATHROSE, PALLUPPETTA HOUSE, VENGOOR WEST VILLAGE, ILAMBAKAPALLY P.O, ERNAKULAM DISTRICT, PIN 683 544. 3M.V. JOHNY, AGED 57 YEARS S/O. VAREETH, MALEKKUDI HOUSE, VENGOOR WEST VILLAGE, CHUNDAKKUZHI P.O, ERNAKULAM DISTRICT, PIN 683 546. 4K.K. VIJAYAN, AGED 62 YEARS S/O. KESAVAN NAIR, KORUMBOOR HOUSE, CHUNDAKKUZHI P.O, ERNAKULAM DISTRICT, PIN 683 546. 5PATHROSE, AGED 55 YEARS S/O. PAILY, MALEKUDI HOUSE, THOTTUVAKKARA, KOOVAPPADY (P.O), ERNAKULAM DISTRICT, PIN 683 544. BY ADVS. R.BINDU (SASTHAMANGALAM) G.RAJAGOPAL (KUMMANAM) ``` ## `C.THEJUS PURUSHOTHAMAN` ## **`RESPONDENTS:`** ``` 1SECRETARY, MUDAKUZHA GRAMA PANCHAYATH, MUDAKKUZHA (P.O), ERNAKULAM DISTRICT, PIN 683 546. 2THE VILLAGE OFFICER, VENGOOR WEST VILLAGE, VENGOOR, ERNAKULAM DISTRICT, PIN 683 546. 3THE TAHSILDAR (LAND RECORDS), OFFICE OF THE TAHSILDAR, PERUMBAVOOR, PERUMBAVOOR P.O, ERNAKULAM DISTRICT, PIN 683 542. 4THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN 686 661. 5THE DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, KAKKANADU, ERNAKULAM, PIN 682 030. 6STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN 695 001. 7ANTONY, PERUVATHAN HOUSE, MUDAKKUZHA P.O, ERNAKULAM DISTRICT, PIN 683 546. 8C.T. RADHAKRISHNAN, AGED 70 YEARS S/O. PADMANABHA PILLAI, CHEMBOTHINAL HOUSE, ALMOOR WEST VILLAGE, MUDAKKUZHA (P.O), ERNAKULAM DISTRICT, PIN 683 546. 9VIJAYAMMA C.P, AGED 67 YEARS W/O. C.T. RADHAKRISHNAN, CHEMBOTHINAL HOUSE, ALMOOR WEST VILLAGE, MUDAKKUZHA P.O, ``` ``` ERNAKULAM DISTRICT, PIN 683 546. ``` ``` BY ADV. BIJU P.P ``` ## **`OTHER PRESENT`** ``` SMT. SHEEBA.G. GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 13.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C).No.22558 of 2022 -:4:- **BECHU KURIAN THOMAS, J. -------------------------------------W.P.(C).No.22558 of 2022 --------------------------------------** _Dated this the 13[th] day of October, 2023_ ## **JUDGMENT** By judgment dated 21.05.2019, in W.P.(C).No.7783/2019, this Court directed the Revenue Divisional Officer to enforce an order issued by him on 14.09.2012. Subsequently, the RDO directed the Tahsildar to conduct a survey and take action against alleged encroachers. On the basis of the said direction, a survey was conducted and petitioners were found to have encroached into a thodu and constructed buildings. When the Panchyat issued notices to the petitioners directing them to vacate the encroached area, as evidenced from Ext.P1 to Ext.P10, they have approached this Court challenging the said proceedings. 2. According to the petitioners, the survey has been conducted without notice to them. Sri.R.Bindu Sasthamangalam, the learned counsel for the petitioners submitted that, all the petitioners have filed separate representations before the Panchayat and the copy of the representation filed by the 3[rd] Petitioner has been produced as Ext.P24. It was submitted that, petitioners would be satisfied with a direction to consider their objection and pass appropriate orders, in W.P.(C).No.22558 of 2022 -:5:- accordance with law. 3. A counter affidavit has been filed by the 3[rd] respondent as well as respondents 8 and 9 pointing out that petitioners have trespassed into a public property, and a survey was conducted in accordance with law. As per Ext.R3(b), sketch prepared by the Taluk Surveyor, an area of 1.38 Ares have been encroached into the thodu puramboke by the petitioners and considering the nature of encroachment, a Form-B notice dated 20.06.2022, was issued to the petitioners under the Land Conservancy Act. The 3[rd] respondent also pointed out that, under no circumstances can any patta be granted in respect of tanks and water bodies as held by the Supreme Court in _**Survepalli Ramaiah (Dead) As per Legal Representatives and others vs. District Collector, Chittoor & others** [2019 (4 )SCC 500]_ _**.**_ 4. According to respondents 8 and 9, due to the illegal encroachment, water logging takes place in their property and therefore, unless and until the encroached area is reclaimed, prejudice would be caused to them as well. 5. The dispute raised as evident from the pleadings is confined to the encroachment by the petitioners on a thodu puramboke. Petitioners have filed representations as Ext.P24 and other representations. Since those representations have already been preferred, I am of the view that, rather than considering this writ W.P.(C).No.22558 of 2022 -:6:- petition on merits, it would suffice that, the said petition/representations be disposed of by the 1[st] respondent in a time bound manner, especially since, the survey and demarcation have already been carried out. 6. In view of the above, there will be a direction to the 1[st] respondent to consider and pass appropriate orders on Ext.P24 and other petitions filed by petitioners 1, 2, 4 and 5 as well, as expeditiously as possible, at any rate within a period of 60 days from the date of receipt of a copy of this judgment, after granting an opportunity of hearing to the petitioners as well as respondents 3,7 and 8. Writ petition is disposed of as above. Sd/- **BECHU KURIAN THOMAS JUDGE** Jka/1310.23. W.P.(C).No.22558 of 2022 -:7:- ## **`APPENDIX OF WP(C) 22558/2022`** |**`PETITIONER’S`**|**`EXHIBITS`**| |---|---| |`Exhibit P1`|`TRUE COPY OF THE NOTICE ISSUED BY THE`| ||`1ST RESPONDENT TO THE 1ST PETITIONER`| ||`DATED NIL.`| |`Exhibit P2`|`TRUE COPY OF THE NOTICE ISSUED BY THE`| ||`3RD RESPONDENT DATED 20.06.2022 TO THE`| ||`1ST PETITIONER.`| |`Exhibit P3`|`TRUE COPY OF THE NOTICE ISSUED BY THE`| ||`1ST RESPONDENT TO THE FATHER OF THE 2ND`| ||`PETITIONER DATED NIL.`| |`Exhibit P4`|`TRUE COPY OF THE NOTICE ISSUED BY THE`| ||`3RD RESPONDENT DATED 20.06.2022 TO THE`| ||`FATHER OF THE 2ND PETITIONER.`| |`Exhibit P5`|`TRUE COPY OF THE NOTICE ISSUED BY THE`| ||`1ST RESPONDENT TO THE 3RD PETITIONER`| ||`DATED NIL.`| |`Exhibit P6`|`TRUE COPY OF THE NOTICE ISSUED BY THE`| ||`3RD RESPONDENT DATED 20.06.2022 TO THE`| ||`3RD PETITIONER.`| |`Exhibit P7`|`TRUE COPY OF THE NOTICE ISSUED BY THE`| ||`1ST RESPONDENT TO THE 4TH PETITIONER`| ||`DATED NIL.`| |`Exhibit P8`|`TRUE COPY OF THE NOTICE ISSUED BY THE`| ||`3RD RESPONDENT DATED 20.06.2022 TO THE`| ||`4TH PETITIONER.`| |`Exhibit P9`|`TRUE COPY OF THE NOTICE ISSUED BY THE`| ||`1ST RESPONDENT TO THE 5TH PETITIONER`| ||`DATED NIL.`| |`Exhibit P10`|`TRUE COPY OF THE NOTICE ISSUED BY THE`| ||`3RD RESPONDENT DATED 20.06.2022 TO THE`| ||`5TH PETITIONER.`| W.P.(C).No.22558 of 2022 ## -:8:- - `Exhibit P11` - `TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 25.06.2019.` - `Exhibit P12 TRUE COPY OF THE RESIDENTIAL CERTIFICATE ISSUED BY THE 1ST RESPONDENT TO THE 1ST PETITIONER DATED 03.08.2011.` - `Exhibit P13 TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE 1ST RESPONDENT TO THE 1ST PETITIONER DATED 24.11.2021.` - `Exhibit P14 TRUE COPY OF THE LAND TAX RECEIPT DATED 02.07.2022.` - `Exhibit P15 TRUE COPIES OF THE RECEIPTS ISSUED BY THE 1ST RESPONDENT DATED 10.02.2022.` - `Exhibit P16 TRUE COPY OF POSSESSION CERTIFICATE DATED 16.08.2017.` - `Exhibit P17 TRUE COPY OF THE LAND TAX RECEIPT DATED 28.05.2022.` - `Exhibit P18 TRUE COPY OF THE PROPERTY TAX RECEIPT ISSUED BY THE 1ST RESPONDENT DATED 23.02.2022.` - `Exhibit P19 TRUE COPY OF THE LOCATION SKETCH OF THE PROPERTY OF THE 3RD PETITIONER ISSUED BY THE 2ND RESPONDENT DATED 24.02.2022.` - `Exhibit P20 TRUE COPY OF THE LAND TAX RECEIPT DATED 29.11.2021.` - `Exhibit P21 TRUE COPY OF THE PROPERTY TAX RECEIPT ISSUED BY THE 1ST RESPONDENT DATED 13.05.2022.` - `Exhibit P22 TRUE COPY OF THE LAND TAX RECEIPT DATED 26.02.2021.` - `Exhibit P23 TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN W.P(C) NO. 7783/2019 DATED 21.05.2019.` W.P.(C).No.22558 of 2022 ## -:9:- ``` Exhibit P24TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 3RD PETITIONER TO THE 1ST RESPONDENT DATED 07.07.2022. Exhibit P25TRUE COPY OF THE REPRESENATION SUBMITTED BY THE 3RD PETITIONER TO THE 3RD RESPONDENT DATED 07.07.2022. ``` ## **`RESPONDENT EXHIBITS`** ``` EXHIBIT R8(a)TRUE COPY OF THE REPORT NO.A4-781/11 DATED 15.11.2011 SENT BY THE 4TH RESPONDENT TO THE DESIGNATED OFFICER, CHIEF MINISTER'S PUBLIC INTERACTION PROGRAMME. ``` ``` EXHIBIT R8(b)TRUE COPY OF THE REPORT NO.146/2011 DATED 24.06.2011 SUBMITTED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT. ``` - `EXHIBIT R8(c) TRUE COPY OF THE CONDITIONAL ORDERS DATED 15.06.2012 ISSUED BY THE 4TH RESPONDENT.` - `EXHIBIT R8(d) TRUE COPY OF THE ORDER NO.A3-4860/11 DATED 14.09.2012 PASSED BY THE 4TH RESPONDENT.` - `EXHIBIT R8(e) TRUE COPY OF THE NOTICE NO.A5-5900/19 DATED 24.11.2020 ISSUED BY THE 4THRESPONDENT.` - `EXHIBIT R3(a) TRUE COPY OF THE BASIC TAX REGISTER PERTAINING TO THE PROPERTY COVERED IN SY. NO. 221/3.` - `EXHIBIT R3(b) TRUE COPY OF THE ENCROACHMENT SKETCH PREPARED BY THE TALUK SURVEYOR, KUNNATHUNADU DATED 07.06.2022.` ``` EXHIBIT R3(c)TRUE COPY OF THE MAHAZAR PREPARED BY THE VILLAGE OFFICER IN RESPECT OF THE ILLEGAL OCCUPATION OF THE THODU PURAMBOKE BY THE PETITIONER 1 TO 5. ``` W.P.(C).No.22558 of 2022 -:10:- ``` EXHIBIT R3(d) ``` ``` TRUE COPIES OF THE FORM A PREPARED BY THE VILLAGE OFFICER. ```