IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 WP(C).No. 23403 of 2008(J) -------------------------------------- PETITIONER(S): ---------------------- JOSEPH PUNNEN @ BABU, AGED 63 YEARS, S/O.LATE JOSEPH, KANIYAMTHARA CHERUKARA BUNGLOW (VADAKKEPARAMBIL), MEPRAL MURI, PERINGARA VILLAGE, THIRUVALLA TALUK. BY ADV. MR.P.HARIDAS RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, PATHANAMTHITTA. 2. PERINGARA GRAMA PANCHAYAT,REPRESENTED BY ITS SECRETARY, PERINGARA.P.O. 3. HEADMISTRESS, ST.JOHNS GOVT.L.P.SCHOOL, MEPRAL.P.O, MEPRAL MURI, PERINGARA VILLAGE, THIRUVALLA TALUK. 4. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT, TRIVANDRUM. R1 & R4 BY GOVERNMENT PLEADER MR.V. MANU. R2 BY ADV. MR.S.SUBHASH CHAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 23403/2008-J APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTICE DATED 20/09/2007 ISSUED BY THE 2ND RESPONDENT. EXT.P2: COPY OF THE JUDGMENT DATED 27/09/2007 IN WP(C) NO. 28557 OF 2007. EXT.P3: COPY OF THE COMMISSION REPORT AND SKETCH IN O.S. NO.442/2007 OF MUNSIFF COURT, THIRUVALLA DATED 01/01/2008. EXT.P4: COPY OF THE JUDGMENT DATED 05/11/2007 IN WP(C) NO. 32746 OF 2007. EXT.P5: COPY OF THE INJUNCTION ORDER DATED 29/01/2008 IN I.A. NO.2551 OF 2007 IN O.S. NO.442 OF 2007 OF MUNSIFF COURT, THIRUVALLA. EXT.P6: COPY OF THE ORDER OF TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTION DATED 03/05/2008 IN APPEAL NO.47 OF 2008. EXT.P7: COPY OF THE NOTICE DATED 12/06/2008 ISSUED BY THE 2ND RESPONDENT. EXT.P8: COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 25/06/2008 BEFORE THE 2ND RESPONDENT. EXT.P9: COPY OF THE REVIEW PETITION DATED 05/07/2008 FILED BEFORE THE 4TH RESPONDENT. EXT.P9(a): COPY OF THE PETITION DATED 09/07/2008 FOR CONDONATION OF DELAY IN FILING THE REVIEW PETITION. EXT.P10: COPY OF THE JUDGMENT DATED 11/07/2008 PASSED BY THIS HONOURABLE COURT IN WP(C) NO. 19568/2008. EXT.P11: COPY OF THE ORDER DATED 11/07/2008 PASSED BY THE 4TH RESPONDENT IN EXT.P9. EXT.P11(a): COPY OF THE ORDER DATED 11/07/2008 PASSED BY THE 4TH RESPONDENT IN EXT.P9(a). RESPONDENT'S EXHIBITS: EXT.R2(a): COPY OF THE PLAN MAINTAINED IN THE VILLAGE OFFICE, PERINGARA INDICATING THE LIE OF THE PROPERTY OF THE PETITIONER, PROPERTY OF ST.JOHN'S GOVERNMENT LP SCHOOL, MEPRAL AND THE ROAD. EXT.R2(b): COPY OF THE APPLICATION SUBMITTED BY RESPONDENT NO.2 FOR MODIFYING EXT.P5 ORDER BEFORE THE COURT OF THE MUNSIFF, THIRUVALLA IN O.S. NO.442/2007. //TRUE COPY// P.A. TO JUDGE rs. THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.23403 OF 2008 ------------------------------------------- Dated this the 14th day of July, 2009 JUDGMENT 1. There is a pathway to the St.John's Government L.P.School, Mepral, which is managed by the second respondent Grama Panchayat. The petitioner filed a suit for injunction against the Panchayat, State of Kerala and the Headmistress of the school. The parties stated before the learned Munsiff, Thiruvalla that they have no objection in maintaining the status quo as reported by the Commissioner in that case. This was recorded and Ext.P5 order was issued by the learned Munsiff on 29.1.2008, directing both sides to maintain status quo as reported by the Commissioner till the disposal of the suit. 2. It appears that there were certain other deliberations between the parties and the Panchayat wanted the petitioner to withdraw the civil cases filed by him against it. In his wisdom, the petitioner chose to carry it to the Tribunal for WPC.23403/08 Page numbers Local Self Government Institutions. That ended in Ext.P6 order setting aside decision No.II dated 28.12.2007 of the Grama Panchayat. But, in the last sentence of Ext.P6, the Panchayat was directed to initiate proper proceedings under the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules, 1996, hereinafter, the “Rules” for short. Presumably triggered by that direction, the Panchayat issued Ext.P7 notice invoking the Rules. The petitioner filed Ext.P8 reply and moved the Tribunal by filing Ext.P9 application for review of Ext.P6 order. He also filed Ext.P9(a) application to condone the delay in filing the application for review. The Tribunal dismissed the application for review and the application to condone delay. Hence this writ petition. Incidentally I may note that the petitioner had earlier came and obtained Ext.P10 as an anticipatory order pending the civil suit. WPC.23403/08 Page numbers 3. Challenging Exts.P6, P7, P11 and P11(a), learned counsel for the petitioner argued that the Tribunal acted beyond jurisdiction in directing the Panchayat in the last sentence in Ext.P6 to initiate action against the petitioner under the Rules and also failed to exercise jurisdiction in refusing to act on the review petition and the application to condone delay. He also impeaches the initiation of proceedings under the Rules while the suit is pending with an undertaking on both sides. Learned counsel for the petitioner further argued that though the suit was initially one for injunction, the petitioner essentially projects a case of easement, though, unfortunately, his application for amendment of the plaint has been dismissed. He pointed out that a writ petition has been filed before this Court on that issue. 4. Learned counsel for the Panchayat pointed out that the school needs a protective cover to ensure that the students are not affected by the opening of any passage and the petitioner cannot be permitted to have any right over the parcel of land WPC.23403/08 Page numbers which is essentially Government land. He states that the Panchayat was duty bound to abide by the direction contained in the last sentence of Ext.P6 order of the Tribunal and with the support of that order of the Tribunal, the impugned Ext.P7 cannot be treated as one without jurisdiction. He also argued that having lost the application for leave to amend the plaint, the petitioner does not have a shred of right to seek relief regarding easement. It is also submitted that the application is pending before the Munsiff seeking modification of Ext.P5 order to enable the proceedings initiated as per Ext.P7 to reach its logical end. 5. As of now, the initiation of proceedings under the Rules stands with the support of the direction of the Tribunal as contained in the last sentence of Ext.P6. At the first blush, it could have been thought that the Tribunal had exceeded its jurisdiction in issuing such an order. But, the fact remains that the Tribunal had, by that order, set aside a resolution of the Panchayat which called upon the petitioner to surrender WPC.23403/08 Page numbers possession and to withdraw the civil suit. Obviously, by the use of the word “directed” in the last sentence in Ext.P6, the Tribunal was only indicating the legal course of action and that is not a mandate of the Tribunal to pursue any particular action. In the manner I have construed it above and having regard to the nature of the power and jurisdiction of the Tribunal under the provisions of the Kerala Municipality Act, 1994 and the Kerala Panchayat Raj Act, 1994, I do not find any jurisdictional error or legal infirmity in the last sentence of Ext.P6. 6.With that, it needs to be noticed that even according to the learned counsel for the petitioner, all that his client now seeks is to pursue a case of easement, whatever be its quality or sustainability. Such a plea, essentially, could stand only on the conceded status that the title to the property does not vest in the petitioner. So much so, if the panchayat has title, or is empowered to deal with government land otherwise, it may be within jurisdiction to proceed with action under the Rules. I WPC.23403/08 Page numbers may also state that by not quashing Ext.P6 order, this Court does not grant its seal of approval upholding the legality, propriety or sustainability of any such proceedings as may be initiated under the Rules. 7.But, the proceedings pending before the Munsiff Court cannot be a stumbling block to the conclusion of proceedings under the statutory rules. However, unless the Munsiff Court vacates the interlocutory order Ext.P5 or modifies it, or otherwise disposes off the suit finally in favour of the Panchayat, it would be inappropriate to enforce any final decision that would be rendered under the Rules, if it be adverse to the interest of the petitioner. It is also beyond doubt that Ext.P6 order of the Tribunal does not, in any manner, impair the right, if any, of the petitioner to make claims before the civil court in accordance with law and the mere direction by the Tribunal to take action under the Rules does not override any legal right of the petitioner to seek redressal sustaining his plea of easement. WPC.23403/08 Page numbers For the aforesaid reasons, without prejudice to the petitioner's right to agitate the correctness or otherwise of the order of the civil court rejecting his application for leave to amend the plaint, the impugned orders are confirmed in terms of what is stated above, however, directing that any final decision following Ext.P7 proceedings shall not be enforced so long as Ext.P5 stands. The writ petition is ordered accordingly, leaving open all other contentions on merits. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.15/7.