Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR TUESDAY, THE 09TH DAY OF JULY 2019 / 18TH ASHADHA, 1941 AGAINST THE JUDGMENT DATED 08.08.2018 IN WP(C).NO.14533/2013 APPELLANT/8TH RESPONDENT IN W.P(C): SREEDEVI, AGED 50 YEARS W/O PRAKASAN, VAYALIL VEEDU, NEERAVIL, PERINADU POST, KOLLAM-691 601. BY ADV. SRI.B.MOHANLAL RESPONDENTs/PETITIONER AND RESPONDENTS 1 TO 6 AND 9 IN WP(C):
1 D.VENUGOPAL, S/O DAMODARAN, VARAMBEL VEEDU, NEERAVIL, PERINADU P.O.KOLLAM. 2 THE DISTRICT COLLECTOR, COLLECTORATE,CIVIL STATION P.O.KOLLAM 691 013. 3 THE DEPUTY DIRECTOR OF PANCHAYATH, KOLLAM-601 001. 4 THE DIRECTOR OF PANCHAYATHS, PUBLIC OFFICE BUILDING, MUSEUM, THIRUVANANTHAPURAM-695 033. 5 THE REVENUE DIVISIONAL OFFICER, COLLECTORATE, CIVIL STATION P.O.,KOLLAM-691 013. 6 THE ASSISTANT DIRECTOR OF PANCHAYATH, COLLECTORATE, CIVIL STATION P.O.,KOLLAM-691 013. 7 THE SECRETARY, THRIKKADAVOOR GRAMA PANCHAYATH, KOLLAM 690 573.
8 THE SECRETARY, KOLLAM CORPORATION, CORPORATION BUILDINGS, KOLLAM-691 001. R1 BY ADV.SRI.B KRISHNAMANI R2 - R6 BY GOVERNMENT PLEADER SRI.TEK CHAND R7 -R8 BY ADV.SRI.K.M.VIJAYAKUMARAN NAIR,SC R7 - R8 BY ADV. SRI.CHANDRAMOHAN DAS,SC THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Hrishikesh Roy, C.J. Heard Sri.B.Mohan Lal, the learned counsel appearing for the appellant (8 th respondent in the W.P(C).No.14533 of 2013). Also heard Sri.Tek chand, the learned Government Pleader appearing for the Sate authorities. The Kollam Corporation is represented by Sri.K.M.Vijayakumaran Nair, the learned counsel.
2. The Writ Petition was filed by one D.Venugopal, who made an allegation
of encroachment on the Panchayat canal and the inaction of the authorities to clear the encroachment, notwithstanding the report dated 24.09.2012 (Ext.P7) of the Senior Superintendent, Poverty Alleviation Unit of Thrikkadavoor, Kollam. The report of the Ovedrseer indicated that a wall was constructed and fence was erected unauthorisedly on top of the Panchayat drainage, and it was suggested that the Secretary of the Thrikkadavoor Grama Panchayat should remove the encroachment.
3. The concerned respondents 7 and 8 was represented by the same counsel Sri.B.Mohan Lal but no counter affidavit was filed on their behalf, in the Writ Court.
4. In the counter affidavit filed by the Kollam Corporation, contrary stand
was noticed. In one portion they stated that it is a public canal but in another place it was said that the canal belongs to the 7 th respondent. The later stand goes against the communications dated 31.12.2012 (Ext.P10) and 27.04.2013 (Ext.P11) of the Secretary of the erstwhile Panchayat, which subsequently merged into the Kollam Corporation.
5. Conscious of the contradictory stand of the Kollam Corporation, the
learned Judge was of the view that the Secretary of the Corporation should advert to the Exts.P7 and P8 and determine, if any encroachment of the public canal was made and whether the canal belonged to the Thrikkadavoor Grama Panchayat. In the said proceeding, hearing was ordered to be afforded only to the writ petitioner.
6. The learned counsel for the appellant would point out that the 7 th
respondent Prakasan died on 25.01.2015 during the pendency of the Writ Petition, and therefore, his legal heirs should have been substituted in the proceeding. No material is seen to be produced before the learned Single Judge on the death of the 7th respondent (Prakasan). At any rate, the 8th respondent Sreedevi (the appellant before us), was the wife of Prakasan and was also the co-owner of the property. Therefore, the interest of the deceased if any, can't be said to have been prejudiced since a single counsel represented both the respondents.
7. More importantly, the impugned judgment do not suggest any prejudicial direction against the 7th and 8th respondents (Prakasan and Sreedevi) or to their legal heirs. In fact, an enquiry was ordered where hearing was directed to be
afforded to the writ petitioner. We therefore are of the view that the mere non- impleadment of the legal heir of the deceased Prakasan (respondent No.7) will not be a defect of such nature, which can be considered as fatal for the impugned direction in the Writ Petition. But to avoid any prejudice in the process of enquiry to be conducted by the Secretary of the Kollam Corporation, we feel that hearing should also be afforded to the appellant Sreedevi, (the wife of deceased Prakasan and co-owner of the property). This will afford adequate protection to the interest of
the appellant. It is ordered accordingly. Other than this limited intervention, the impugned judgment is left undisturbed.
8. With the above, the Writ Appeal stands disposed. Sd/- HRISHIKESH ROY CHIEF JUSTICE Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE mns APPENDIX PETITIONER'S/S EXHIBITS: ANNEXURE A1 THE TRUE COPY OF THE DEATH CERTIFICATE OF THE APPELLANTS HUSBAND SRI PRAKASAN ISSUED BY THE REGISTRAR OF BIRTHS AND DEATHS, THIRUVANANTHAPURAM CORPORATION.
ANNEXURE A2 THE TRUE COPY OF THE RECEIPT FOR PROPERTY TAX ISSUED BY THE VILLAGE OFFICER, THRIKKADAVOOR DATED 11.7.2017 ANNEXURE A3 THE TRUE COPY OF THE PHOTOGRAPH OF THE PROPERTY AND THE RESIDENTIAL BUILDING OF THE APPELLANT RESPONDENTS EXHIBITS:NIL //TRUE COPY// P.A TO JUDGE