IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 WP(C).No. 29919 of 2010(L) -------------------------------------- PETITIONER(S): ----------------------- VELLARADA SPECIAL GRADE GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, SELVARAJ, S/O.SUDARSANAN NADAR, AGED 54, PANACHAMOODU, VELLARADA, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.J.S.AJITHKUMAR SRI.S.ASWA KUMAR RESPONDENT(S): ------------------------- GEETHAKUMARI, W/O.SURESH KUMAR, PAMMARIKONAM KIZHAKKUMKARA PUTHEN VEEDU, KRISHNAPURAM WARD, CARKODE, PANCHAMOODU P.O., THIRUVANANTHAPURAM-679 014. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C) NO. 29919/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PLAINT O.S.NO.5/2010 OF THE MUNSIFF'S COURT, NEYYATTINKARA. P2 COPY OF THE ORDER DATED 4/1/2010 IN I.A.NO.5/2010 IN O.S.NO.5/2010 OF THE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA. P3 COPY OF THE INJUNCTION ORDER DATE 16/01/2010 OF THE PETITIONERS. P4 COPY OF THE OBJECTION 29/01/2010 IN O.S.NO.5/2010. P5 COPY OF THE COMMISSION APPLICATION I.A.NO.677/2010 IN O.S.NO.5/2010 P6 COPY OF THE NOTICE DATED 01/02/2010 OF THE PETITIONER. P7 COPY OF THE ORDER DATED 05/02/2010 IN O.S.NO.5/2010 OF THE PRINCIPAL MUNSIFF, NEYYATTINKARA. P8 COPY OF THE OBJECTION OF RESPONDENT DATED 06/02/2010. P9 COPY OF THE APPEAL NO.140/2010 OF THE TRIBUNAL OF LOCAL SELF GOVERNMENT INSTITUTIONS. P10 COPY OF THE ORDER DATED 11/2/2010 IN I.A.NO.184/2010 IN APPEAL NO.140/2010. P11 COPY OF THE PHOTOGRAPHS OF MUD WALL AND NEW CONSTRUCTION EFFECTED BY THE RESPONDENT. P12 COPY OF THE EXTRACT OF PROPERTY REGISTER OF VELLARADA GRAMA PANCHAYATH. P13 COPY OF THE ORDER DATED 16/4/2010 IN APPEAL NO.140/2010 OF THE TRIBUNAL FOR SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. P14 COPY OF THE MAHAZAR DATED 21/4/2010. P15 COPY OF THE ORDER DATED 26/4/2010 OF PETITIONER. P16 COPY OF THE OBJECTION DATED 4/5/2010 OF THE RESPONDENT. P17 COPY OF THE RESOLUTION NO.305 DATED 18/5/2010 OF THE PETITIONER PANCHAYATH. sts WP(C) NO.29919/2010 P18 COPY OF THE ORDER DATED 20/5/2010 OF THE PETITIONER. P19 COPY OF THE SALE DEED NO.1155/2004 DATED 11/8/2004. P20 COPY OF THE TAX RECEIPT DATED 9/11/2009. P21 COPY OF THE ORDER DATED 11/8/2010 IN APPEAL NO.463/2010 OF TRIBUNAL FOR SELF GOVERNMENT INSTITUTIONS. RESPONDENT'S EXHIITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 29919 OF 2010 -------------------------- Dated this the 11th day of November, 2010 J U D G M E N T The sole respondent purchased a parcel of land 18.36 ares in extent situated in survey No.632/15 of Kunnthukkal Village, Neyyattinkara Taluk, Thiruvananthapuram as per Ext.P19 sale deed dated 11.8.2004. In January, 2010, the sole respondent instituted a suit, O.S. No.5 of 2010 in the Court of Munsiff of Neyyattinkara with two private persons on the party array as defendants alleging that they are attempting to lay road along the eastern boundary of her property after encroaching into it. In that suit, she prayed for prohibitory injunction restraining the defendants from trespassing into her property or from committing waste or from laying a road therein. Along with the plaint, she filed I.A. No.5 of 2010 for an interim order of injunction in terms of the relief of injunction prayed for in the plaint. On that application, the court below passed Ext.P2 order of injunction dated 4.1.2010 restraining the WPC No.29919/2010 2 defendants from trespassing into her property or from committing waste therein. The defendants entered appearance and contested the application by filing a counter statement. The petitioner alleges that armed with the interim order of injunction, the respondent trespassed upon a portion of the Pammarikonam-Vengode-Chamavila road, which is vested in the Panchayat, and attempted to enclose it by putting up a compound wall. At that stage, the Secretary of the petitioner panchayat issued Ext.P3 prohibitory order dated 16.1.2010 restraining the respondent from trespassing upon the road vested in the Panchayat. She was also cautioned that if she encroaches upon the road, appropriate action will be taken against her. Upon receipt of Ext.P3 prohibitory order, the respondent submitted Ext.P8 reply wherein she contended that she owns 18.36 ares of land in survey No.632/15-3, that on all the four sides of the property, a compound wall was in existence and that no road passes along her property as alleged in Ext.P3. The Secretary thereafter issued Ext.P6 notice dated 1.2.2010 WPC No.29919/2010 3 calling upon the respondent to vacate the portion of the road she had encroached upon. The respondent thereafter filed Ext.P9 appeal before the Tribunal for Local Self Government Institutions wherein she contended that a compound wall was in existence all around her property when she purchased it and that the Panchayat has no right over the pathway on the western side of her property, which according to the petitioner is a private pathway. The petitioner resisted the appeal before the Tribunal for Local Self Government Institutions relying on Ext.P12 property register maintained by the panchayat which discloses that Pammarikonam-Vengode-Chamavila road is a road vested in the Panchayat having a length of 1 Km. By Ext.P13 order passed on 16.4.2010, the Tribunal held that in Ext.P6 notice issued by the panchayat the property alleged to have been encroached upon was not correctly described and therefore there was no proper notice. The appeal was accordingly allowed and Ext.P6 notice was set aside reserving liberty with the petitioner to initiate fresh proceedings. Thereafter, the WPC No.29919/2010 4 Secretary of the Vellarada Grama Panchayat prepared Ext.P14 mahazar and issued Ext.P15 notice dated 26.4.2010 calling upon the respondent to vacate the portion of the road which she had encroached upon. Upon receipt of Ext.P15 notice, the respondent submitted Ext.P16 reply wherein she denied the existence of a road vested in the panchayat on the western boundary of her property. She also denied having encroached upon any portion of the road vested in the panchayat. The committee of the panchayat that met on 18.5.2010 considered the reply submitted by the respondent and resolved to evict the respondent from the area encroached upon by her. The Secretary was authorised to implement the order and thereupon Ext.P18 notice dated 20.5.2010 was issued calling upon the respondent to demolish the compound wall put up encroaching into the road vested in the panchayat. The respondent thereupon filed Appeal No.463 of 2010 before the Tribunal for Local Self Government Institutions. By Ext.P21 order passed on 11.8.2010, the Tribunal held that the lands which have been WPC No.29919/2010 5 encroached upon have not been properly identified. The appeal was accordingly allowed and Exts.P17 decision and P18 notice were set aside. The petitioner was permitted to take a fresh action if grounds exist for initiating action under the provisions of the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for unauthorised Occupation) Rules, 1996. Ext.P21 is under challenge in this writ petition. 2. The petitioner contends relying on Ext.P12 that the road having a length of 1 Km, is vested in the panchayat and that a portion of the road was encroached upon by the respondent. Relying on the averments in Ext.P8 reply submitted by the respondent and the statements in the memorandum of appeal before the Tribunal (Ext.P9), the petitioner contends that the lands belonging to the respondent are situated in survey No.632/15/3 though in the document of title (Ext.P19), the survey number is shown as 632/15 only. It is also contended that in Ext.P15 notice, the land encroached upon by the WPC No.29919/2010 6 respondent has been correctly described and therefore the Tribunal erred in holding that the land encroached upon has not been properly described. 3. Though the respondent has been served, she has not chosen to enter appearance or file counter affidavit. I heard Sri. J.S.Ajith Kumar, learned counsel appearing for the petitioner. I have also gone through the pleadings and the materials on record. It is evident from the statements made by the respondent initially in Ext.P6 reply and in Ext.P9 memorandum of appeal that the lands belonging to her lie in Re-survey No.632/15/3 of Kunnthukkal Village of Neyyattinkara Taluk. Ext.P12 register maintained by the petitioner panchayat discloses that Pammarikonam-Vengode-Chamavila road is a road vested in the petitioner panchayat. The respondent has virtually conceded in Ext.P9 appeal memorandum that a pathway is in existence on the western side of her property. In this context, it is relevant to note that in Ext.P19 document of title the western boundary of the land belonging to the WPC No.29919/2010 7 respondent is described as lands belonging to Sri. Ramaswamy. In view of the categoric statement made by the respondent herself in Ext.P9, it is evident that the description of the western boundary in Ext.P9 document of title is erroneous and it can be presumed that a pathway or a road lies along the western boundary of the lands. It is evident from Ext.P15 notice issued by the Secretary of the petitioner Panchayat that the Secretary has correctly described the lands belonging to the respondent and has also alleged with clarity that the respondent has encroached upon a portion of the road having a width of 3.80 metres. He has also described the exact area of the road which has been encroached upon by the respondent. A reading of Ext.P15 notice makes it abundantly clear that the Secretary of the petitioner panchayat had correctly described the lands held by the respondent and had also described with clarity the lands which the respondent has allegedly encroached upon. In this context, it is relevant to note that in Ext.P16 reply submitted by the respondent, she had no case that she is not in a position to WPC No.29919/2010 8 identify the land alleged to have been encroached upon. Her only case in Ext.P16 was that there is no panchayat road in existence. In such circumstances, I am of the considered opinion that the Tribunal erred in holding that the panchayat has initiated action against the respondent under the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for unauthorised Occupation) Rules, 1996 without properly identifying the lands encroached upon by the respondent. It has therefore to be necessarily held that Ext.P21 order passed by the Tribunal for Local Self Government Institutions cannot be sustained. In the result, I allow the writ petition, quash Ext.P21 and restore Exts.P17 decision and P18 notice. If the respondent does not vacate the encroached portion by demolishing the compound wall and reconstructing it afresh after leaving out the encroached portion within one month from the date of reciept of a copy of this judgment, it will be open to the petitioner to take steps for removing the encroachment with the aid of the police in WPC No.29919/2010 9 terms of sub rule (3) of rule 5 of the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for unauthorised Occupation) Rules, 1996. P.N.RAVINDRAN, (JUDGE) vps WPC No.29919/2010 10 WPC No.29919/2010 11