IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 8TH APRIL 2011 / 18TH CHAITHRA 1933 WP(C).No. 7805 of 2011(A) ------------------------------------- PETITIONER: ------------------- THOMAS MATHEW, AGED 80 YEARS, S/O.THOMAS, MUTHUPLACKAL HOUSE, MUTHUVANKUDY KARA, KUNCHITHANNY VILLAGE, DEVIKULAM TALUK. BY ADV. SRI.PADAYATTEE YELDO. RESPONDENTS: ------------------------ 1. THE DISTRICT COLLECTOR, IDUKKI DISTRICT, REPRESENTING THE STATE OF KERALA, CIVIL STATION, KUYILIMALA, PAINAVU P.O.,IDUKKI DISTRICT – 685 603. 2. VELLATHOOVAL GRAMA PANCHAYAT, REPRESENTED BY THE SECRETARY, VELLATHOOVAL, DEVIKULAM TALUK, IDUKKI DISTRICT – 685 603. R1 BY GOVERNMENT PLEADER SMT. K.R. DEEPA, R2 BY ADVS. SRI.K.I.ABDUL RASHEED, SRI.V.K.MEETHIANKUNJU. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/04/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)No.7805 of 2011 ---------------------------- Dated 8th April, 2011 JUDGMENT The petitioner claims to be the pattadar in respect of 2.20 acres of land comprised in Survey No.19/1/330/1-1, 1-2, 2-6 and Re- survey No.264/5 (.8161 Ares) of Kunchithanny Village. The contention of the petitioner is that one Mr.Soby attempted to widen the existing pathway belonging to the Panchayat that abuts the property of the petitioner. Since he failed in his attempt he influenced one Mr.Roy John, a member of the 2nd respondent Panchayat and made the 2nd respondent to issue Ext.P6 with a view to demolish the boundary wall and the car shed belonging to the petitioner. Earlier, against the action of the said Mr.Soby the petitioner has approached the Munsiff's Court, Devikulam by filing O.S.No.57 of 2011. Ext.P5 is the interim injunction passed by the Munsiff's Court, Devikulam in the said suit. As per the same, the respondent therein viz., the aforesaid Soby and his men were restrained from trespassing into the petition schedule property and doing any other acts or wastes to the western boundary wall and car shed attached to the building or widen the existing pathway through the petition schedule property until further orders. The contention of the petitioner is that since Mr.Soby was injuncted from widening the pathway and also from WP(C).No.7805/2011 2 destroying the car shed belonging to the petitioner he influenced the aforesaid Roy John, a member of the 2nd respondent Panchayat and caused issuance of Ext.P6 notice by the 2nd respondent. Ext.P6 is a notice whereby the petitioner was intimated regarding the decision of the Panchayat Committee to demolish the car shed and boundary wall. It is contended that the action on the part of the respondents in issuing Ext.P6, that too, without affording him an opportunity to explain, is violative of the principles of natural justice and on that sole scope it is liable to be interfered with. That apart, it is contended that the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorized Occupation) Rules, 1996 (for short `the Rules') prescribe the procedures for taking action thereunder for evicting illegal encroachment and that the prescribed procedures had not been strictly adhered to by the respondents. The specific case of the petitioner is that there is no illegal encroachment. That apart, it is contended that, even if it is admitted for argument sake that there is illegal encroachment the procedures prescribed for evicting unauthorized occupation have not been followed by the respondents in this case. A scanning of the contentions would reveal that, virtually, the allegation of the petitioner is that respondents are attempting to commit illegal encroachment into his property. As already noticed hereinbefore, as WP(C).No.7805/2011 3 against Ext.P6 the contention of the petitioner is that it was issued without following the prescribed procedures under the Rules and also in violation of the principles of natural justice. 2. I have heard the learned counsel appearing for the petitioner and also the learned Standing Counsel for the second respondent. 3. With respect to the contention that Ext.P6 was issued in violation of the provisions of the Rules the learned standing counsel made available a copy of notice bearing No.A3.555/11 dated 21.2.2011 to contend that Ext.P6 was preceded by the said notice. A perusal of the same would reveal that after arriving at a prima facie conclusion that the petitioner is illegally encroached into one cent of property belonging to the Panchayat and constructed a compound wall therein the said notice dated 21.2.2011 was issued under section 218 of the Kerala Panchayat Raj Act and the provisions under the Rules. It would further reveal that, as per the same, the petitioner was given three days time to submit his reply. The specific contention of the petitioner is that he did not receive any such notice prior to the issuance of Ext.P6. However, the endorsement on the reverse side of the said notice would reveal that the same was received by one Sajeev who is none other than the son of the petitioner. Now, the question is whether the procedures have been WP(C).No.7805/2011 4 followed by the respondents before issuing Ext.P6. The learned counsel for the petitioner submitted that even if it is taken that such notice was issued to the petitioner, that is, to his son, then also in the light of the provisions under Rule 5 of the Rules the action in Ext.P6 cannot be sustained. Rule 5 thereunder provides the procedure for eviction which reads thus:- “5. Procedure for eviction:- (1) The Panchayat shall serve fifteen days' notice to the occupant before evicting that person from the land belonging to or vested with the Panchayat. A brief description of land unauthorisedly occupied and the reason for eviction shall be specially mentioned in that notice. (2) The Panchayat shall examine the objection if any, received, to the notice mentioned under sub-rule (1). It it appears to the Panchayat that the objection is not satisfactory or the matters stated therein are unsustainable in law, a second notice shall be served to the occupant and he shall be required therein to vacate the unauthorisedly occupied land within one week after the receipt of the notice. (3) If the Unauthorized occupant is not vacating even after the receipt of notice mentioned under sub-rule (2) the Panchayat may evict such person and if assistance of police is required for this purpose the assistance of police may be sought under sub-section (1) of Section 352 of the Act and the police shall provide assistance.” Rule 5(1) of the Rules would show that it is mandatory to issue a notice and 15 days' time is to be given to the alleged unauthorized occupant before evicting that person from the land vested with the Panchayat. WP(C).No.7805/2011 5 The contention of the respondent Panchayat is that the petitioner has encroached upon one cent of property belonging to the Panchayat and constructed a compound wall therein and it was in the said circumstances, a decision as revealed from the aforesaid notice dated 21.2.2011 was taken. However, as per the aforesaid notice dated 21.2.2011 the petitioner was asked to give his explanation within three days. Obviously, the Rules provides 15 days' notice and therefore, admittedly, the statutorily prescribed period of 15 days was not offered to the petitioner to submit his explanation. The contention of the 2nd respondent is that the Panchayat Committee has taken a decision as per Resolution No.10 dated 5.3.2011 and it is pursuant to that decision that Ext.P6 was issued. It would reveal that after issuing such a notice dated 21.2.2011 the Committee did not even wait for the expiry of 15 days' time and that 15 days' time was not actually offered as mandated under the Rules. That apart, it is evident that going by Rule 5(2) of the Rules after issuing such a notice in terms of Rule 5(1) it is mandatory to issue a second notice requiring the concerned person to vacate the unauthorizedly occupied land within one week after the receipt of the notice. Admittedly, no such notice was also issued in this case. Therefore, even if it is taken that the petitioner has unauthorizedly occupied the land belonging to the Panchayat there is a total failure to WP(C).No.7805/2011 6 adhere to the prescribed procedures under Rule 5(1) of the Rules. I am of the view that on that sole ground Ext.P6 is liable to the interfered with. Accordingly, Ext.P6 is set aside. It is made clear that it will be open to the respondents to initiate action to evict illegal encroachment, if any, in accordance with the procedures under the Rules. As already noticed hereinbefore, the petitioner is also having a case that the attempt of the Panchayat is to illegally encroach upon his land. If that is the case, it is up to the petitioner to resort to the remedy to establish his civil right. The writ petition is disposed of accordingly. Sd/- C.T.RAVIKUMAR Judge TKS // true copy // P.S. to Judge