Full Judgment
& connected cases -1-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY, THE 8TH DAY OF AUGUST 2022 / 17TH SRAVANA, 1944 WP(C) NO. 23482 OF 2015 PETITIONER/S:
1 RAJESH DEVASIA AGED 42 YEARS S/O.C.D.DEVASIA, CONGOLA HOUSE, DIVINE NAGAR, S.CHITTOOR, KOCHI 682 027.[ADDED] [THE WORDS "REPRESENTED BY MRS.MERIN RAJESH, W/O RAJESH DEVASIA, AGED 36 YEARS, CONGOLA HOUSE, DIVINE NAGAR, S.CHITTOR, COCHIN-27, AS PER POWER OF ATTORNEY DATED 22/07/2016 ADDED AFTER THE NAME AND ADDRESS OF THE PETITIONER AS PER ORDER DATED ADDL. 2 SMT.MERIN RAJESH, W/O.LATE RAJESH DEVASSIA, AGED 41 YEARS, CONGOLA HOUSE, DIVINE NAGAR, S.CHITTOOR P.O., ERNAKULAM DISTRICT, KOCHI-027. ADDL. 3 ARIADE RAJESH, AGED 14 YEARS, (MINOR), AGED 14 YEARS S/O.LATE RAJESH DEVASSIA, AGED 41 YEARS, CONGOLA HOUSE, DIVINE NAGAR, S.CHITTOOR P.O., ERNAKULAM DISTRICT, KOCHI- 682 027, REPRESENTED BY MOTHER AND NEXT FRIEND MERIN RAJESH, W/O.LATE RAJESH DEVASSIA, AGED 41 YEARS, CONGOLA HOUSE, DIVINE NAGAR, S.CHITTOOR P.O., ERNAKULAM DISTRICT, KOCHI- 682 027. ADDL. 4 AGAATH RAJESH, AGED 11 YEARS, (MINOR), S/O.LATE RAJESH DEVASSIA, AGED 41 YEARS,CONGOLA HOUSE, DIVINE NAGAR, S.CHITTOOR P.O., ERNAKULAM DISTRICT, KOCHI- 682 027, REPRESENTED BY MOTHER AND NEXT FRIEND MERIN RAJESH, W/O.LATE RAJESH DEVASSIA, AGED 41 YEARS, CONGOLA HOUSE, DIVINE NAGAR, S.CHITTOOR P.O., ERNAKULAM DISTRICT, KOCHI- 682 027. (ADDL P2 TO P4 ARE IMPLEADED AS PER ORDER DATED 08-07-2022 IN IA 1/2022.)
& connected cases -2- BY ADVS. SRI.JIMMY JOHN VELLANIKARAN SRI.ANISH ANTONY SRI.V.L.THOMAS RESPONDENT/S:
1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, PIN: 695 001. 2 CHERANELLUR GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY CHERANELLUR GRAMA PANCHAYATH, S.CHITTOOR P.O., KOCHI 682 027. 3 PRESIDENT CHERANELLUR GRAMA PANCHAYATH, CHERANELLUR, S.CHITTOOR P.O., KOCHI 682 027. 4 TALUK SURVEYOR KANAYANNUR TALUK, TAHSILDAR'S OFFICE, ERNAKULAM 687 027. 5 VILLAGE OFFICER CHERANELLUR GRAMA PANCHAYATH, CHERANELLUR, SOUTH CHITTOOR P.O., KOCHI - 682 027. BY ADVS. SRI.T.K.AJITHKUMAR VALATH SMT.M.MANJU SRI.R.SUDHISH SRI. DENNY DEVASSY, SR. GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.08.2022, ALONG WITH WP(C).23483/2015, FOLLOWING: & connected cases -3-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY, THE 8TH DAY OF AUGUST 2022 / 17TH SRAVANA, 1944 WP(C) NO. 23483 OF 2015 PETITIONER/S: 1 DR.K.GOPINATHAN AGED 58 YEARS S/O.LATE V.V.MARAR, "AISHWARYA", KIZHAKKILOT HOUSE, DIVINE NAGAR, SOUTH CHITTOOR PO, KOCHI 682 027. 2 MRS.GEETHA GOPINATHAN WO.DR.K.GOPINATHAN AGED 50 YEARS "AISHWARYA", KIZHAKKILOT HOUSE, DIVINE NAGAR, SOUTH CHITTOOR PO, KOCHI 682 027. BY ADVS. SRI.JIMMY JOHN VELLANIKARAN SRI.ANISH ANTONY SRI.V.L.THOMAS RESPONDENT/S:
1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY TO STATE, SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001. 2 CHERANELLUR GRAMA PANCHAYATH REP. BY ITS SECRETARY, CHERANELLUR GRAMA PANCHAYATH, SOUTH CHITTOOR PO, KOCHI 682 027. 3 PRESIDENT CHERANELLUR GRAMA PANCHAYATH, CHERNELLUR, SOUTH CHITTOOR PO, KOCHI 682 027. 4 TALUK SURVEYOR KANAYANNUR TALUK, TAHSILDAR'S OFFICE, ERNAKULAM, KOCHI 682 027. 5 VILLAGE OFFICER CHERANELLUR VILLAGE CHERANALLUR, SOUTH CHITTOOR PO,
& connected cases -4- 6 K V ANTONY S/O VAKKO, KOLARIKKAL VADUTHALA KOCHI 682023 AGED 86 YEARS BY ADVS. SRI.T.K.AJITHKUMAR VALATH SMT.M.MANJU SRI.R.SUDHISH SRI. DENNY DEVASSY, SR. GP. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.08.2022, ALONG WITH WP(C).23482/2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: & connected cases -5-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY, THE 8TH DAY OF AUGUST 2022 / 17TH SRAVANA, 1944 WP(C) NO. 23484 OF 2015 PETITIONER/S: E.M.ELIZABETH AGED 46 YEARS W/O.GEORGE JOSEPH, PANDANKALLIL HOUSE, ANUGRAHA, CHERANALLUR, S.CHITTUR, COCHIN - 682 027. BY ADVS. SRI. VIVEK VARGHESE P.J. SRI. VARUGHESE M. EASO RESPONDENT/S:
1 STATE OF KERALA REPRENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, PIN: 695 001. 2 CHERANELLUR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, CHERANELLUR GRAMA PANCHAYATH, S.CHITTOOR P.O., KOCHI 682 027. 3 TALUK SURVEYOR KANAYANNUR TALUK, TAHSILDAR'S OFFICE, ERNAKULAM 682 011. 4 VILLAGE OFFICER CHERANELLUR GRAMA PANCHAYATH, CHERANELLUR, SOUTH CHITTOOR P.O., KOCHI 682 027. 5 K V ANTONY S/O VAKKO AGED 82 YEARS KOLARIKKALVADUTHALA KOCHI-682023 AGED 82 YEARS BY ADVS. SRI.T.K.AJITHKUMAR VALATH SMT.M.MANJU SRI.R.SUDHISH
& connected cases -6- THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.08.2022, ALONG WITH WP(C).23482/2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: & connected cases -7-
JUDGMENT
The captioned writ petitions are materially connected in respect of notices issued by the Secretary of the Cheranellur Grama Panchayat, the 2nd respondent, apparently under the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorized Occupation) Rules, 1996.
2. According to the petitioners they are the owners of the
properties situated in Re. Sy. No. 306/5, Block No. 4 (Old Sy. No. No. 648/5) and Sy. No. 648/5 (Re. Sy. No. 305/5 Pt.) of Cheranellur Village. It is further submitted that after purchase petitioners have effected mutation of the properties in the village records and are paying tax. That apart it is submitted that receipts are issued for payment of tax and location certificates are also issued by the revenue authorities. That apart it is submitted that the fair value of the land is also fixed by the State Government as per Gazette publication dated 06.03.2010. Therefore according to the petitioners, the allegation made in the notices issued by the Secretary of the Grama Panchayat that the property of the petitioners include portions of a puramboke thodu & connected cases -8- cannot be sustained under law.
3. That apart it is also contended that in fact the Panchayat has
constructed a road to cater the needs of the public by reclaiming the puramboke thodu and if measurement is carried out taking into account the said aspect, it would be clear that there is no encroachment by the petitioners so as to invoke the provisions of the Rules 1996.
4. That apart it is pointed out that even though petitioners have
raised objections to the alleged measurement carried out without notice to the petitioners, no action was initiated in order to conduct a measurement after providing notice of hearing and participation to the petitioners. It is in the above background that reliefs are sought to quash the impugned notices produced in the writ petitions namely Exts. P7, P9 and P12 in W. P. (C) No. 23482 of 2015, Exts. P8, P10 and P13 in W. P. (C) No. 23483 of 2015 and Exts. P5 and P8 in W. P.
(C) No. 23484 of 2015.
5. The 2nd respondent Grama Panchayat has filed a very detailed
counter affidavit refuting the allegations and claims and demands raised by the petitioners and also producing various documents to substantiate their contentions and to impress upon this Court that there & connected cases -9- is encroachment into the puramboke thodu by the petitioners.
6. I have heard learned counsel for the petitioners Sri. Jimmy
John Vellanikaren and Sri. Vivek Jacob Varghese, learned counsel for the Cheranellur Grama Panchyat Sri. T. K. Ajith Kumar and learned Senior Government Pleader Sri. Denny Devassy for the State and its officials.
7. Even though the claims raised by the petitioners to quash the
notices issued by the Secretary of the Grama Panchayat is stoutly opposed by the learned counsel appearing for the Panchayat and the learned Senior Government Pleader, I am of the considered opinion that the issues raised by the rival parties are surrounded by various factual circumstances which can only be deciphered by a fact finding body by conducting survey and inspection of the properties in question.
8. In fact the State Government has incorporated Section 4A in
the Kerala Surveys and Boundaries Act, 1961 to deal with such situations which reads thus:- “4A. Government may direct the survey and demarcation of any lands belonging to local authority.- & connected cases -10-
Whenever a local authority as defined in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or in the Kerala Municipality Act, 1994 (20 of 1994) requests the Government for surveying and demarcating the boundaries of any land vested or owned by it the Government or any officer or authority authorised by the Government in this behalf, by notification in the Gazette shall get the land surveyed and demarcated.”
9. Learned counsel for the petitioners also submitted that it
would suffice if a direction is issued to conduct a survey of the properties in question after providing notice of hearing to the petitioners personally and take a decision, taking into account the contention raised by the petitioners that the Panchayat has developed a road by reclaiming the poramboke thodu.
10. In view of the fact that petitioners have raised a contention
that they have not encroached into any property and that before carrying out the measurements they were not served with a notice, it is only appropriate that the Panchayat as well as the revenue authority is directed to issue a notice to the petitioners and carry out the measurements, in accordance with law.
11. In that view of the matter, the writ petitions are disposed of
directing the Secretary of the Cheranalloor Grama Panchayat to seek & connected cases -11- assistance of the Taluk Surveyor, Kanayannur Taluk and the Village Officer, Cheranalloor Village for carrying out the measurement and survey of the properties in question also taking into account the allegation made in the writ petitions that the encroachment is actually made by the Panchayat by reclaiming the poramboke thodu in order to construct a road for the use of the residents in that locality, at the earliest and at any rate within four months from the date of receipt of a copy of this judgment, after issuing notice of participation and hearing to all the petitioners in the writ petitions.
12. When the writ petitions were admitted to the files of this
Court, an interim order was granted by this Court for a period of one month which was being periodically extended and later extended until further orders on 09.08.2016 and other dates which are still in force. In that view of the matter, the said interim order would continue to be in force till such time a decision is taken by the Secretary of the Grama Panchayat after conducting the measurements as directed above. Sd/- SHAJI P. CHALY JUDGE Eb ///TRUE COPY/// P. A. TO JUDGE & connected cases -12- APPENDIX OF WP(C) 23482/2015 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.3672/08 DATED 21/8/2008 EXHIBIT P2 TRUE COPY OF THE LAND TAX PAID RECEIPT DATED 4/10/2014 EXHIBIT P3 TRUE COPY OF THE BUILDING PERMIT DATED EXHIBIT P4 TRUE COPY OF THE LOCATION CERTIFICATE DATED 30/3/2000. EXHIBIT P5 TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED 31/1/2014. EXHIBIT P6 TRUE COPY OF THE PROPERTY TAX PAID RECEIPT DATED 21/1/2014. EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 15/7/2014 ISSUED BY 2ND RESPONDENT EXHIBIT P8 TRUE COPY OF THE OBJECTION DATED EXHIBIT P9 TRUE COPY OF THE NOTICE DATED 27/9/2014 ISSUED BY THE 2ND RESPONDENT EXHIBIT P10 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER DATED 7/10/2014 EXHIBIT P11 TRUE COPY OF THE STAY PETITION WITH AFFIDAVIT DATED 7/10/2014 FILED BY THE PETITIONER EXHIBIT P12 TRUE COPY OF NOTICE/ORDER DATED EXHIBIT P13 TRUE COPY OF OBJECTION DATED 12/6/2015 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT & connected cases -13- APPENDIX OF WP(C) 23483/2015 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.2604/99 OF ERNAKULAM S.R.O., DATED 24.6.1999 EXHIBIT P2 TRUE COPY OF THE LAND TAX PAID RECEIPT DATED 11.5.2001 GIVEN BY 2ND RESPONDENT PANCHAYAT EXHIBIT P3 TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 11.5.2001 GIVEN BY 2ND RESPONDENT PANCHAYAT EXHIBIT P4 TRUE COPY OF THE LOCATION CERTIFICATE DATED 16.6.2007 ISSUED BY VILLAGE OFFICER EXHIBIT P5 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 16.6.2001 ISSUED BY VILLAGE OFFICER TO THE 2ND PETITIONER EXHIBIT P6 TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED 26.11.2002 ISSUED BY CHERANALLUR PANCHAYATH FOR THE BUILDING NUMBERED EXHIBIT P7 TRUE COPY OF THE PROPERTY TAX PAID RECEIPT, DATED 11.6.2015 EXHIBIT P8 TRUE COPY OF THE NOTICE DATED 15.7.2014 ISSUED BY 2ND RESPONDENT EXHIBIT P9 TRUE COPY OF THE REPLY OF THE PETITOINER DATED 30.7.2014 SUBMITTED BEFORE THE 2ND RESPONDENT EXHIBIT P10 TRUE COPY OF THE NOTICE DATED 27.9.2014, ISSUED BY 2ND RESPONDENT EXHIBIT P11 TRUE COPY OF THE APPEAL MEMORANDUM DATED 8.10.2014 SUBMITTED BY THE 1ST PETITONER EXHIBIT P12 TRUE COPY OF THE AFFIDAVIT ALONG WITH STAY PETITION DATED 8.10.2014 SUBMITTED BY THE 1ST PETITIONER EXHIBIT P13 TRUE COPY OF THE NOTICE DATED 30.5.2015 ISSUED BY THE 2ND RESPONDENT & connected cases -14- EXHIBIT P14 TRUE COPY OF THE OBJECTION DATED 12.6.15 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P15 TRUE COPY OF THE APPEAL MEMORANDUM DATED 12.6.2015 FILED BY THE 1ST PETITIONER & connected cases -15- APPENDIX OF WP(C) 23484/2015 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.117/I/200 OF ERNAKULAM S.R.O EXHIBIT P2 TRUE COPY OF THE LAND TAX PAID RECEIPT DATED 11/6/2015 EXHIBIT P3 TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 29/2/2000 FROM 2ND RESPONDENT EXHIBIT P4 TRUE COY OF THE LOCATION SKETCH DATED CHERANELLOOR EXHIBIT P5 TURE COPY OF THE NOTICE DATED 27/9/2014 ISSUED BY THE 2ND RESPONDENT TO SRI.GEORGE JOSEPH (HUSBAND OF THE PETITIONER) EXHIBIT P6 TRUE COPY OF THE APPEAL BY THE PETITIONER DATED 7/10/2014 TO 2ND RESPONDENT FOR THEIR NOTICE DATED EXHIBIT P7 TRUE COPY OF THE STAY PETITION WITH AFFIDAVIT DATED 7/10/2014 EXHIBIT P8 TRUE COPY OF THE NOTICE DATED 30/5/2015 FROM 2ND RESPONDENT EXHIBIT P9 TRUE COPY OF THE REPLY LETTER DATED THE PETITIONER)