IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 22ND NOVEMBER 2011 / 1ST AGRAHAYANA 1933 WP(C).No. 2265 of 2006(T) ------------------------- PETITIONER(S): ---------------------- SECRETARY, MANAMBOOR GRAMA PANCHAYAT, MANAMBOOR, VARKALA, TRIVANDRUM. BY ADVS. SRI.M.DINESH SRI.BASANT BALAJI RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP. BY SECRETARY, LOCAL SELF ADMINISTRATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. ADDITIONAL SECRETARY, LOCAL SELF ADMINISTRATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 3. SECRETARY/BLOCK DEVELOPMENT OFFICER, BLOCK DEVELOPMENT OFFICE, VARKALA, TRIVANDRUM. 4. SHAMSHUDEEN, S/O. ABDUL RAHMAN, RAHEMATH MANZIL, PALACHIRA P.O., VARKALA. R1 TO R3 BY GOVT. PLEADER SMT.KOCHUMOL KODUVATH R4 BY ADV. SRI.M.R.RAJESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMV WPC NO.2265 OF 2006 (T) APPENDIX PETITIONER(S) EXHIBITS : P1 : COPY OF THE RESOLUTION OF MANAMBOOR GRAMA PANCHAYAT DATED 28.12.2005. P2 : COPY OF THE COMPLAINT FILED BY THE 4TH RESPONDENT BEFORE THE HON'BLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS. P3 : COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTION. P4 : COPY OF ORDER PASSED BY THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTION ON 22.01.2002. P5 : COPY OF THE NOTICE ISSUED TO PETITIONER BY THE 1ST RESPONDENT DATED 07.09.2005 P6 : COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 14.12.2005. P7 : COPY OF LETTER ISSUED BY 3RD RESPONDENT TO THE PETITIONER DATED 06.01.2006. RESPONDENT'S EXHIBITS : R4 (a) : COPY OF THE PETITION DATED 21.02.2004 OF THE PETITIONER TO KERALA LEGISLATIVE ASSEMBLY. R4 (b) : COPY OF THE PETITION DATED 05.03.2005 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. R4 ( c) : COPY OF THE LETTER NO.C1-7084/2001 DATED 09.08.2001 OF THE PANCHAYATH DEPUTY DIRECTOR. R4 (d) : COPY OF THE LETTER NO.C1-3807/2005 DATED 07.07.2005 OF THE PANCHAYATH DEPUTY DIRECTOR. /TRUE COPY/ P.A. TO JUDGE AMV S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.2265 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of November, 2011 J U D G M E N T The petitioner is a Secretary of the Manamboor Grama Panchayat. The Panchayat constructed a road by name 'Valakodumala Khadi Road'. The 4th respondent filed a complaint before the Ombudsman for Local Self Government Institutions, Thiruvananthapuram to the effect that without the knowledge or consent of the 4th respondent, the Panchayat encroached into his property to construct the road and cut down several trees standing on the property for construction of the road. He claimed appropriate reliefs from the Ombudsman in respect thereof. By Ext.P4 order, the Ombudsman found that the remedy of the 4th respondent lies in approaching the civil court for redressing his grievances and disposed of the complaint making it clear that nothing stated in the order would stand in the way of the 4th respondent seeking his remedies before W.P.(C)No.2265 of 2006 -2- appropriate authorities. The 4th respondent thereafter filed complaints before the Government of Kerala, the 1st respondent herein. Entertaining those complaints, the Government passed Ext.P6 order finding that 7 cents of properties belonging to the 4th respondent has been encroached into by the Panchayat for construction of the road and therefore the petitioner was directed to give compensation to the 4th respondent for the 7 cents of property taken over by the Panchayat. Ext.P6 order is under challenge in this writ petition. Primarily the challenge is on the ground that the Government have no powers to issue an order like Ext.P6, especially when the Ombudsman relegated the 4th respondent to other remedies. 2. A counter affidavit has been filed by the 1st respondent supporting Ext.P6 order. The 4th respondent has also filed a counter affidavit supporting the order. According to the 4th respondent, in a meeting of the parties concerned, convened by the Deputy Director of Panchayats, it was admitted that there was encroachment into the petitioner's property which is clear from file W.P.(C)No.2265 of 2006 -3- No.10828/K1/05 of respondents 1 & 2. He would contend that in so far as the Government of Kerala has general superintendence over the Panchayats, the Government has power to issue Ext.P6 order. He also points out that, this writ petition is not filed by the Panchayat but only by the Secretary of the Grama Panchayat. 3. I have considered the rival contentions in detail. 4. I do not subscribe to the view of the respondents that the Panchayat is under the supervisory control of the Government. The Panchayat is an autonomous body governed by the Kerala Panchayat Raj Act. Except those conferred on the Government by the Kerala Panchayat Raj Act, the Government have no other powers over a Panchayat. The Panchayat Raj Act does not confer any powers on the Government to decide as to whether the Panchayat has encroached into a private land and to direct the Panchayat to pay compensation for any land taken over by the Panchayat except in proceedings under the Land Acquisition Act or the Kerala Land Relinquishment Act. Ext.P6 order is not passed under the Land Acquisition Act W.P.(C)No.2265 of 2006 -4- or under the Kerala Land Relinquishment Act. It is not one passed under any powers conferred by the Government under the Kerala Panchayat Raj Act or any other statute for that matter. Therefore, I am satisfied that Ext.P6 order has been passed by the Government without jurisdiction. It is all the more so when the issue is covered by Ext.P4 order of the Ombudsman for Local Self Government Institutions, who is a statutory authority constituted under the Kerala Panchayat Raj Act. Of course, the counsel for the 4th respondent points out that, in his counter affidavit, the 4th respondent has specifically stated that the Panchayat had admitted having encroached into the land belonging to the 4th respondent. But that file, which he refers to in the counter affidavit is not before me. He has also not taken any steps to summon that file. Even apart from that, the question as to whether the Panchayat encroached into the 4th respondent's land and what is the extent of encroachment has to be decided by an authority competent to take evidence and to decide that issue. The Government is certainly not an authority competent to do so. As far as W.P.(C)No.2265 of 2006 -5- the technical contention that it is not the Panchayat who had filed the writ petition, I find that the writ petition is filed by not an individual but the Secretary of the Manamboor Grama Panchayat, which can only be on behalf of the Panchayat. Even apart from that in Ext.P6 order it is the Secretary of the Grama Panchayat who has been directed to pay compensation to the 4th respondent. Therefore, I do not find any merit in that technical contention of the 4th respondent also. In the above circumstances, I have no option but to quash Ext.P6. Accordingly Ext.P6 is quashed. But I make it clear that this will not stand in the way of the 4th respondent approaching the appropriate authority competent to deal with the matter for claiming compensation for any encroachment, if any, into his property by the Panchayat. The writ petition is allowed as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/