Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN SATURDAY, THE 26TH DAY OF OCTOBER 2019 / 4TH KARTHIKA, 1941 PETITIONER: A.D.JOHN, KAVADA (AMBALATHEKKATHIL), CHEPPADU P.O., ALAPPUZHA DISTRICT -690 507. BY ADV. SRI.K.SABU RESPONDENTS:
1 SUTHAN K., AGED 67 YEARS S/O LATE KRISHNAN, VIKAS BHAVAN, CHEPPADU P.O., ALAPPUZHA DISTRICT, PIN-690 507. 2 THE SECRETARY CHEPPADU GRAMAPANCHAYATH, CHEPPADU P.O., ALAPPUZHA DISTRICT, PIN-690507. 3 THE DISTRICT COLLECTOR ALAPPUZHA DISTRICT COLLECTORATE, ALAPPUZHA DISTRICT- 688 001. 4 THE REVENUE DIVISIONAL OFFICER OFFICE OF THE RDO, MALEVIKKARA, KOZHENCHERI ROAD, CHENGANNOOR - 689 121. 5 THE TAHSILDAR, KARTHIKA PALLI TALUK, HARIPAD P.O., ALAPPUZHA DISTRICT-690 514. 6 THE VILLAGE OFFICER CHEPPAD VILLAGE, CHEPPAD P.O. 690 507. 7 THE PANCHAYATH DEPUTY DIRECTOR ALAPPUZHA ALAPPUZHA DISTRICT-688 001. SRI.G.BENO SRI.ARUN CHANDRAN SRI.T.K.SHAJAHAN, SR.GP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
26.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
The petitioner, who is stated to be in the winter years of his life, being 82 years in age, has approached this Court complaining about the erection of an illegal bunk shop by the first respondent in the road margin immediately adjoining his property. According to the petitioner, the first respondent has constructed the unauthorised bunk shop closing the entire frontage of his property and therefore, that no one is now able to enter or exit from it. He says, therefore, that he has approached respondents 2 to 7, who are the competent Authorities, but that no action has been forthcoming and therefore, prays that the said Authorities be directed to remove this construction immediately.
2. In response, the learned counsel for the first respondent
submits that his client had put up the bunk shop in the road “Puramboke” and that he has been running a business there for the last several years. According to him, the petitioner had created a gate through the frontage of his property much later and therefore, that he cannot now ask the bunk to be removed,
so as to enable him to enter and exit his property. The first respondent also submits that he has filed a suit against the second respondent - Grama Panchayat, as is evident from Ext.R1(c), before the Munsiff's Court, Haripad for a declaration of title over the area where he has put up his bunk shop; and therefore, pleads that the Panchayat be directed to await final decree in the said suit. He, consequently, prays that this writ petition be dismissed.
3. Sri.Arun Chandran, learned standing counsel appearing
for the second respondent - Grama Panchayat, submits that in obedience to the interim directions of this Court, dated 17.10.2019 and since the first respondent is operating his business illegally without any licence, the shop has been shut down; but that he is still attempting to re-open it and to run his business in spite of this. He asserts that no orders have been issued by the Munsiff's Court, Haripad in O.S.No.400/2018 but
that further action under the applicable Statutes and Regulations for demolition and removal of the bunk shop has been deferred solely on account of the pendency of this writ petition. The learned standing counsel submits that if this Court is so inclined, the Panchayat is willing to take further action and prays that the third respondent - District Collector, the fourth respondent - RDO, the fifth respondent - Tahsildar and the concerned Police Officers be also directed to give them sufficient support and assistance for this purpose.
4. The learned Government Pleader appearing on behalf of
the official respondents submits that the area where the petitioner has put up his bunk is without doubt a “Puramboke” land and that he cannot continue to remain there any further. He says that they are willing to take all appropriate action, including under the Kerala Conservancy Act, 1957, for eviction of this shop and that they will also afford all necessary protection and assistance to the Panchayat in their endeavour to do so as per law.
5. When I consider the afore submissions, it is without doubt that the first respondent appears to have constructed a shop in an area which is virtually conceded to be a “Puramboke” land and there is no material to establish otherwise at least as of now.
6. True, the first respondent has approached the Munsiff's
Court, Haripad seeking a declaration of title over the property in question but it is pertinent that no orders have been issued by the said Court until now. It is also conceded before me that the first respondent has been running his business in the said shop for the last several years without any licence and as Sri.Arun Chandran has already submitted, the business has now been closed on the basis of the interim orders earlier issued in this case.
7. I am, therefore, unable to see any reason why further
action is not taken by the Panchayat and by the official respondents against the first respondent, particularly when they are ad idem that his occupation in the property in question is illegal and contrary to the provisions of the Kerala Land Conservancy Act. Merely because he has filed a suit is not good a reason why the Panchayat and the official respondents should not discharge and undertake their responsibility under the various applicable Statutes and I, therefore, deem it appropriate to allow this writ petition for such reason.
In the afore circumstances, I order this writ petition and direct respondents 2 to 6 to immediately take steps to evict the first respondent, by demolition and removal of his illegal and unauthorised bunk shop, in terms of law and after following due procedure and I further direct the Station House Officer of the local Police Station to give effective assistance to the said Authorities while they do so. I clarify that that if the first respondent is able to obtain any interdictory orders from a competent Court or Forum in the meanwhile, then the afore directions will stand regulated as per such orders; but that until and unless he is able to obtain so, necessary action for his removal and eviction shall be done in terms of this judgment forthwith.
Sd/- DEVAN RAMACHANDRAN Stu JUDGE APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 A TRUE PHOTO COPY OF THE GIFT DEED NO.318/1984 DATED 10.2.1984. EXHIBIT P2 A TRUE PHOTOCOPY OF THE LAND TAX RECEIPT DATED 31.10.2018. EXHIBIT P3 A TRUE PHOTOCOPY OF THE APPLICATION DATED 8.12.2017. EXHIBIT P4 A PHOTO GRAPH OF THE PETITIONER'S PROPERTY'S ROAD FRONTAGE. EXHIBIT P4 B PHOTOGRAPH OF THE PETITIONER'S PROPERTY'S ROAD FRONTAGE AND ILLEGAL RESTRAINT OF THE IST RESPONDENT IN FRONT OF THE PETITIONER'S PROPERTY. EXHIBIT P5 THE TRUE PHOTOCOPY OF THE COVERING LETTER DATED 8.12.2017. EXHIBIT P6 THE TRUE PHOTOCOPY OF THE REPORT DATED 9.2.2018. EXHIBIT P7 THE TRUE PHOTOCOPY OF THE ORDER DATED 6.8.2018. EXHIBIT P8 THE TRUE PHOTOCOPY OF THE APPLICATION UNDER RIGHT TO INFORMATION ACT, POSTAL RECEIPT AND REPLY DATED 2.6.2018. EXHIBIT P9 THE TRUE PHOTOCOPY OF THE REPORT OF THE 5TH RESPONDENT TO THE 4TH RESPONDENT DATED 1.6.2018. EXHIBIT P10 THE TRUE PHOTOCOPY OF THE REPLY DATED 20.12.2017. EXHIBIT P11 THE TRUE PHOTOCOPY OF THE REPRESENTATION DATED 30.11.2018. EXHIBIT P12 THE TRUE PHOTOCOPY OF THE RECEIPT DATED 30.11.2018. EXHIBIT P13 THE TRUE PHOTOCOPY OF THE NEWS PAPER CUTTING OF THE MALAYALA MANORAMA DAILY DATED 26.11.2017. EXHIBIT P14 THE TRUE PHOTOCOPY OF THE PERMIT DATED 04.12.2018. EXHIBIT P15 TRUE PHOTOCOPY OF THE MEDICAL CERTIFICATE ISSUED BY THE MEDICAL DIRECTOR, SUNRISE HOSPITAL, KAKKANAD. EXHIBIT P16 TRUE PHOTOCOPY OF THE NOTICE DATED 20.03.2018. EXHIBIT P17 TRUE PHOTOCOPY OF THE APPLICATION UNDER RIGHT TO INFORMATION ACT DATED 08.10.2018. EXHIBIT P18 TRUE PHOTOCOPY OF THE REPLY DATED 22.10.2018. EXHIBIT P19 TRUE PHOTOCOPY OF THE APPEAL FILED BY THE 1ST RESPONDENT BEFORE R.D.O., CHENGANNOOR. RESPONDENT'S EXHIBITS: EXHIBIT R1 A TRUE COPY OF THE NOTICE NO.G1.3585/07 DATED 19.05.2007. EXHIBIT R1 B TRUE COPY OF LETTER NO.C12-896/18DCALP DATED 08.10.2018. EXHIBIT R1 C TRUE COPY OF O.S.NO.400/2018 BEFORE THE HON'BLE MUNSIFF COURT, HARIPAD. EXHIBIT R1 D TRUE COPY CAVEAT OP NO.67/2018 BEFORE THE HON'BLE MUNSIFF COURT, HARIPAD. EXHIBIT R1 E TRUE COPY OF THE ADVOCATE COMMISSIONER REPORT DATED 20.12.2018. EXHIBIT R1 F ORIGINAL PHOTOGRAPHS SHOWING THE EXISTENCE PETITIONER'S GATE. //TRUE COPY// P.A TO JUDGE.