IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 26TH JULY 2011 / 4TH SRAVANA 1933 WP(C).No. 14685 of 2011(I) ------------------------------------- PETITIONERS: --------------------- 1. JOSE, S/O. AUGUSTHY, AGED 43 YEARS, POOTHAKUZHIYIL HOUSE, KATTAPPANA KARA, KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. 2. SUNIL, S/O.AUGUSTHY, POOTHAKUZHIYIL HOUSE, KATTAPPANA KARA, KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. 3. REJI, S/O.AUGUSTHY, POOTHAKUZHIYIL HOUSE, KATTAPPANA KARA, KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY ADV. SRI.A.C.DEVASIA. RESPONDENTS: ------------------------ 1. KATTAPPANA GRAMA PANCHAYATH GRAMA PANCHAYATH OFFICE, KATTAPPANA, REPRESENTED BY ITS SECRETARY, KATTAPPANA VILLAGE, UDUMABANCHOLA TALUK, IDUKKI DISTRICT – 685 554. 2. THE SECRETARY, KATTAPPANA GRAMA PANCHAYATH, GRAMA PANCHAYATH OFFICE, KATTAPAPANA, KATTAPPANA VILLAGE, UDUMBANACHOLA TALUK, IDUKKI DISTRICT – 685 554. R1 & R2 BY ADV. SRI.JOICE GEORGE.S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.14685/2011-I: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE TITLE DEED DTD. 28/05/1998. EXT.P.1.A: COPY OF THE TITLE DEED DTD. 01/06/1998. EXT.P.1.B: COPY OF THE TITLE DEED DTD. 01/06/1998. EXT.P.2: COPY OF THE RESURVEY PLAN SHOWING THE ENTIRE PROPERTY OF 3 ACRES IN EXT.P.1, P1.(A) AND P1(B) DTD. 06/02/2003. EXT.P.3: COPY OF THE PATTA DTD. 11/10/1971 OVER ITEM NO.2 OF EXT.P.1 TO P.1.(B). EXT.P.4: COPY OF THE AUCTION NOTICE DTD. 18/02/2000 ISSUED BY THE PANCHAYATH. EXT.P.5: COPY OF THE AGREEMENT DTD. 06/07/2000 ENTERED INTO BY THE PANCHAYATH WITH FIVE PERSONS. EXT.P.6: COPY OF THE NOTICE DTD. 16/05/2011 ISSUED BY THE RESPONDENT PANCHAYATH. EXT.P.7: COPY OF THE REPLY DTD. 25/05/2011 GIVEN BY THE FATHER OF THE PETITIONERS TO THE RESPONDENT. EXT.P.8: COPY OF THE REPRESENTATION DTD. 26/05/2011 GIVEN BY THE PETITIONERS TO THE R.2. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE APPLICATION SUBMITTED BY MR. AUGUSTHY MATHAI TO THE RESPONDENT PANCHAYAT. EXT.R1.B: COPY OF THE MINUTES OF THE PANCHAYAT COMMITTEE CONVENED ON 08/05/2000. EXT.R1.C: COPY OF THE AGREEMENT DTD. 15/05/2000 EXECUTED BETWEEN THE PANCHAYAT AND AUGUASTHY MATHAI. EXT.R1.D: COPY OF THE APPLICATION DTD. 15/05/2000 DULY SIGNED BY SRI. AUGASTHY MATHAI SUBMITTED UNDER RULE 3 OF THE KERALA LAND RELINQUISHMENT RULES 1958. EXT.R1.E: COPY OF THE RESOLUTION NO.2. DTD. 30/06/2000 OF THE KATTAPPANA GRAMA PANCHAYAT. //TRUE COPY// P.S. TO JUDGE. Prv. HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO.14685 OF 2011 ------------------------------- DATED THIS THE 26TH DAY OF JULY, 2011 JUDGMENT This writ petition is filed seeking the following reliefs: i) To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents not to take any further action in respect of item No.2 shown in Ext.P1 to P1(b) properties pursuant to Ext.P6 notice. ii) To issue a writ of mandamus or any other appropriate writ, order or direction commanding the 2nd respondent to consider and pass appropriate orders on Ext.P8 representation forwarded by the petitioners. iii) To issue a writ of prohibition prohibiting the respondents from dismantling the boundaries shown in item No.2 schedules of Ext.P1 to P1(b) properties or from doing any act which is detrimental to the petitioners peaceful possession, ownership and enjoyment of the properties. 2. According to the petitioners, they are in possession and enjoyment of 1.20 acres of patta land and 1.80 acres of non- patta land totalling to 3 acres of land. This writ petition is filed -2- W.P.(C).No.14685/2011 alleging that the Panchayat has an idea to take forceful possession of the property, for which Ext.P6 notice was issued to the father of the petitioners stating that the Panchayat has initiated steps to dismantle the boundaries of Ext.P1 to P1(b) properties described in item No.2. This writ petition is filed seeking to restrain the respondents from entering into the property of the petitioners or to do any act, which is detrimental to the petitioners' peaceful possession, ownership and enjoyment of the properties. 3. In the counter affidavit filed by the Panchayat it is stated that father of the petitioners surrendered 1.70 acres of land in Sy.No.1/1 of Kattappana Village to the Panchayat in the year 2000 for the purpose of construction of a bus stand. It is pointed out that the Panchayat issued a public notice in the newspaper on 18/2/2000 stating that the Panchayat proposed to establish a bus stand in Kattappana Town and that the owners interested in selling the property may apply to the Panchayat. Pursuant to the said notice, the father of the petitioners by communication dated 3-4- -3- W.P.(C).No.14685/2011 2000 informed the Panchayat that he is willing to surrender two acres of land in Sy.No.1/1 subject to the conditions therein. Ext.R1 (a) is the said communication. It is stated in Ext.R1(a) that the father of the petitioners, Augusthy Mathai, is willing to surrender two acres of land free of cost. From Ext.R1(a) it is revealed that the purpose of surrendering the property is to get benefit to the owner of the property, i.e. if a bus stand is put up in the surrendered land, the act of surrender will enhance the value of the adjoining patta land belongs to the land owner. Ext.R1(b) is the copy of the minutes of the Panchayat committee held on 8/5/2000. The Panchayat has decided to take over two sets of properties. Ext.R1 (c) is the agreement dated 15/5/2000 executed between the Panchayat and Augusthy Mathai. Similar agreement was executed with another property owner. Ext.R1(d) is the application dated 15/5/2000 duly signed by Augusthy Mathai submitted under Rule 3 of the Land Relinquishment Rules, 1958. By Ext.R1(d) the petitioners' father Augusthy Mathai surrendered the land free of -4- W.P.(C).No.14685/2011 cost. The Panchayat produced a copy of Resolution No.2 dated 30/6/2000, which is marked as Ext.R1(e). Ext.R1(e) is a decision of the Panchayat Committee requesting the Town Planner to give site approval of the property covered by Exts.R1(c) and R1(d) documents for the purpose of constructing a bus stand. It is stated in the counter affidavit that the Panchayat has not abandoned the proposal for constructing a bus stand in the property covered by Exts.R1(a), R1(c) and R1(d) documents. The Panchayat also contended that the property surrendered by the petitioners' father is not covered by Exts.P1 to P1(b) title deeds and therefore, the petitioners have no manner of right over the property of the Panchayat. It is also stated that the Panchayat has executed Ext.R1 (c) agreement for the purpose of taking possession of the property offered for constructing the bus stand and that the Panchayat had constructed a bus stand in the property covered by Ext.P5. The Panchayat also denied the allegation of the petitioners that the Panchayat Committee has an idea to take forceful possession of the -5- W.P.(C).No.14685/2011 property covered by Exts.P1 to P1(b) deeds. It is also alleged in the counter affidavit that the petitioners are trying to encroach upon the property owned by the Panchayat and that Ext.P6 notice was issued by the Panchayat only when the petitioners' father tried to put up some construction in the property of the Panchayat. After receiving Ext.P6 notice, the petitioners with the active connivance of their father had submitted Exts.P7 and P8 representations claiming that the property of the Panchayat is covered under Exts.P1 to P1(b) documents with the mala fide intention to establish their right over the property of the Panchayat. It is further contended that the writ petition is filed on an experimental basis with the mala fide intention to establish the rights over the property of the Panchayat. It is further stated in the counter affidavit that the respondent- Panchayat has taken possession of the property on 15/5/2005. It is in respect of this property that the petitioners are seeking relief in the writ petition. The facts stated in the writ petition are denied by the Panchayat in the counter affidavit and the Panchayat has set up -6- W.P.(C).No.14685/2011 an entirely different case. 4. Since the disputed facts are placed by the petitioners and the Panchayat, this Court is not in a position to adjudicate the contentions of the parties in a petition filed under Article 226 of the Constitution of India. It is for the parties to work out their remedies before the appropriate forum. Learned counsel for the petitioner submits that Ext.P8 representation is pending consideration before the Panchayat and requests that a direction may be issued to the Panchayat to consider and dispose of Ext.P8 representation. It is made clear that only basic facts, which are necessary for the disposal of the writ petition, are stated in this judgment. The contentions of the parties are not considered on merits. Without prejudice to the petitioners' right to approach the appropriate forum, this writ petition is dismissed. HARUN-UL-RASHID, Judge. kcv.