IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 WP(C).No. 28785 of 2010(W) ----------------------------------------- PETITIONER(S): ------------------------- 1. M/S.KUNNATHUNADU GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY,SRI.P.A.MUHAMMED, S/O.ABDULLA,AGED 49 YEARS,KUMARAPURAM, ALUVA-683565. 2. THE SECRETARY,KUNNATHUNADU GRAMA PANCHAYATH,KUMARAPURAM,ALUVA-683565. BY ADV. SRI.PAUL K.VARGHESE RESPONDENT(S): ------------------------- 1. LISSY GEORGE,W/O.GEORGE,OLANGATTU HOUSE, MORAKKALA KARA,KUMARAPURAM.P.O,KUNNATHUNADU VILLAGE,ERNAKULAM DISTRICT. 2. ANJU JOSE,AGED 34 YEARS,W/O.JOSE, OLANGATTU HOUSE,MORAKKALA KARA,KUMARAPURAM.P.O, KUNNATHUNADU VILLAGE,ERNAKULAM DISTRICT. R1 & R2 BY ADVS. SRI.H.B.SHENOY, SRI.B.ASHOK SHENOY, SMT.LAKSHMI B.SHENOY, SRI.ABU MATHEW, SRI.SOBHAN GEORGE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2011, ALONG WITH WPC NO. 33660 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P(C) NO.28785/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE LAND RELINQUISHMENT APPLICATION DTD. 22.12.1986 BY MAHILA SAMAJAM. P2:- COPY OF THE STOP MEMO ISSUED BY THE PANCHAYATH TO THE RESPONDENTS DTD 5.2.2010. P3:- COPY OF THE REPORT SUBMITTED BY ASSISTANT ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT DT. 11.5.2010. P4:- COPY OF THE LETTER ISSUED BY THE PANCHAYATH DT.D 15.5.2010 TO THE RESPONDENT. P5:- COPY OF THE COMPLAINT SUBMITTED BY THE STAFF AND PARENTS OF THE STUDNENTS OF ANGANWADY TO THE PANCHAYATH DTD. NIL. P6:- COPY OF THE REPORT SUBMITTED BY THE ASSISTANT ENGINEER (LSGD) TO THE PANCHAYATH DT.D 28.5.2010. P7:- COPY OF THE REPORT SUBMITTED BY THE VILLAGE OFFICER, KUNNATHUNADU TO THE PETITIONERS DT.D 14.9.2010. P8:- COPY OF THE LETTER DTD. 1.6.2010 SUBMITTED BY THE PANCHAYATH TO THE VILLAGE OFFICER, KUNNATHUNADU. P9:- COPY OF THE LETTER DTD. 5.6.2010 ISSUED BY THE PANCHAYATH TO THE RESPONDENT. P10:- COPY OF THE JUDGMENT IN WPC. 12063/2010 OF THE HONOURABLE HIGH COURT DT. 7.4.2010. P11:- COPY OF THE ORDER IN APPEAL 574/2010 DTD. 13.8.2010 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTION. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE REGD. SALE DEED 3897/2005 DTD. 1.6.05 OF PUTHENCRUZ SUB REGISTRY. R1(b):- COPY OF THE REGD. SALE DEED 3898/05 DTD. 1.6.05 OF PUTHENCRUZ SUB REGISTRY. R1(c):- COPY OF THE LAND TAX RECEIPT NO.4792783 (BOOK 47928) DTD. 8.9.2010 ISSUED TO RESPONDENTS BY KUNNATHUNADU VILLAGE OFFICE. tss W.P.(C) NO.28785/2010. R1(d):- COPY OF THE DECREE DTD. 6.9.2008 PASSED BY THE MUNSIFF'S COURT, PERUMBAVOOR IN OS.261/2006. R1(e):- COPY OF THE JUDGMENT DTD. 7.4.2010 OF THIS HONOURABLE COURT IN WPC. 12063/2010. R1(f):- COPY OF THE THANDAPPER ACCOUNT NO.737 MAINTAINED BY KUNNATHUNADU VILLAGE OFFICE IN THE NAME OF VIJAYA MAHILA SAMAJAM. R1(g):- COPY OF THE THANDAPPER ACCOUNT NO.6906 MAINTAINED BY KUNNATHUNADU VILLAGE OFFICE IN THE NAME OF THE RESPONDENTS. R1(h):- COPY OF THE THANDAPPER ACCOUNT NO.1869 MAINTAINED BY KUNNATHUNADU VILLAGE OFFICE IN THE NAME OF MR.MEETHIN KOCHAMMED. TRUE COPY P.S. TO JUDGE tss HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.28785 & 33660 Of 2010 ---------------------- Dated this the 10th day of November, 2011. J U D G M E N T Common issues are involved in both writ petitions and hence both writ petitions are disposed of by this common judgment. 2. W.P.(C) 28782/2010 is filed seeking to quash Ext.P11 order of the Tribunal and W.P.(C).No.33660/2010 is filed seeking to quash Ext.P15 notice and for a direction to consider Ext.P14 representation of the Panchayath and to measure the Anganwadi property immediately within a time frame. 3. Petitioners in both cases are the Kunnathunadu Grama Panchayath and the Secretary of the Grama Panchayath. The short facts leading to the filing of the writ petitions are as follows: An extent of 10 cents of land in survey No.455/7 (R.S.No.137/8) of Kunnathunadu Village originally belonged to Vijaya Mahila Samajam. On 22.12.1986 the office bearers of the Samajam surrendered 2 cents of land out of 10 cents to the Panchayath for the construction of an Anganwadi as per the Land ::2:: W.P.(C).Nos28785 & 33660 Of 2010 Relinquishment Form A Rule 3. Ext.P1 is the copy of the land relinquishment application. Pursuant to Ext.P1 relinquishment, the Panchayath constructed a pucca building in the said two cents and an Anganwadi has been functioning in the said building from 1986 onwards till date. When the respondents illegally made damage to the basement of the Anganwadi building, unloaded granite pieces to the way leading to the Anganwadi and attempted to start new construction without getting permission from the Panchayath and based on the complaints of the parents, teachers, staff and public, the Panchayath issued a stop memo to the respondents against the illegal construction on 5.2.2010. Ext.P2 is he copy of the stop memo. 4. Subsequently, the respondents submitted a plan before the Panchayath for construction of a compound wall. On receipt of the plan, the Assistant Engineer, LSGD inspected the site. On inspection the Assistant Engineer found that as per the plan, the plot area in survey No.137/8 is mentioned as 526 M² (13 cents). But as per the site plan, the measurement is mentioned as 564 M² . The Assistant Engineer found that 38 metre square is excess as per the site plan when compared to the ::3:: W.P.(C).Nos28785 & 33660 Of 2010 document of title. The Engineer also noticed that the plot area of the Anganwadi as per the site plan is 42.4 metre square. On verification of the site plan submitted by the respondents, the Engineer was convinced that the site plan includes two cents of land which belongs to the Panchayath wherein the Anganwadi is located. It is stated in the writ petition that the intention of the respondents was to encroach into the property of the Anganwadi and reduce the same into their possession. Ext.P3 is the copy of the report submitted by the Assistant Engineer. Stating the said facts, the Panchayath on 15.5.2010 issued Ext.P4 letter to the respondens. By the time, the Panchayath also received a complaint from the local people including staff and parents of Anganwadi students alleging that illegal attempt was made by certain persons to encroach into the Anganwadi land as well. Ext.P5 is the copy of the said complaint. In the aforesaid context, the Panchayath called for a report from the Assistant Engineer (LSGD). The Engineer submitted another report. The Engineer found that the respondents produced three different site plans in different shapes and different measurements violating the Rules. Thereafter, the Assistant Engineer submitted the ::4:: W.P.(C).Nos28785 & 33660 Of 2010 report to the Panchayath suggesting to measure out the property of the respondents with the assistance of the revenue authorities to ascertain the real extent and boundaries of the respondents' property to avoid unnecessary disputes. The second report dated 28.5.2010 is marked as Ext.P6. It is pointed out that the Assistant Engineer by mistake mentioned the property of the Anganwadi as in survey No.136/8 instead of 137/8. The petitioner also produced the report of the village officer dated 14.9.2010 marked as Ext.P7. It is reported by the village officer in Ext.P7 that the property wherein the Anganwadi is situated is in R.S.No.137/8. The Panchayath addressed the Village Officer to measure the property as per survey sketch, documents etc. Ext.P8 is the copy of the communication dated 1.6.2010. Thereafter the said fact was intimated to the respondents by Ext.P9 letter dated 5.6.2010. 5. While so, respondents filed W.P.(C).No.12063/2010 before this Court alleging that the Panchayath has not passed any order in the application for permit and plan. This Court disposed of the writ petition with a direction to the Panchayath to pass orders within four weeks from the date of receipt of a copy ::5:: W.P.(C).Nos28785 & 33660 Of 2010 of the judgment. Ext.P10 is the copy of the judgment. Pursuant to Ext.P10, Panchayath requested the respondents to rectify the mistake in the plan. But, it is said that they have not cared to rectify the mistake in the site plan and regarding the extent of the property despite repeated request. It is averred in the writ petition that instead of rectifying the mistake and to submit the correct plan, the respondents filed appeal before the Tribunal for Local Self Government Institutions. It is stated that the Tribunal did not consider any of the relevant facts, set aside Ext.P9 notice and directed the Panchayath to pass final orders within 15 days from the date of submitting the application. Ext.P11 is the order. Ext.P11 is under challenge in W.P.(C).No.28785/2010. This Court by interim order dated 17.9.2010 stayed all further proceedings pursuant to Ext.P11. 6. Respondents filed a counter affidavit. The ownership and possession of 5.26 Ares of land on the survey No.137/8 by virtue of sale deed numbers 3897/05 and 3898/05 is admitted. They have denied the contention of the petitioners that only an extent of 10 cents of land in survey No.137/8 originally belonged to Vijaya Mahila Samajam. They have denied the contention of ::6:: W.P.(C).Nos28785 & 33660 Of 2010 the petitioners that Vijaya Mahila Samajam surrendered 2 cents of land for the construction of Anganwadi as per Ext.P1. According to the respondents, Vijaya Mahila Samajam was the owner and possession of 16.19 cents comprised in R.S. No.137/8 and out of the said extent 5.26 Ares of land was purchased by them. Respondents purchased the land as per Exts.R1(a) and (b) sale deeds. According to them 5.26 Ares of land owned and possessed by them does not comprise the Anganwadi land or any land belonging to or allegedly surrendered to Anganwadi. 7. Ext.P14 in W.P.(C).No.33660/2010 is the representation submitted by the petitioners to the 1st respondent Tahsildar requesting measurement of the properties and to fix the boundary. The Tahsildar by notice dated 23.10.2010 stated that he is not in a position to measure out the property due to the pendency of the writ petition. Ext.P15 is the copy of the said communication. 8. Respondents filed Appeal No.574/10 challenging the notice dated 5.6.2010 of the Secretary, Kunnathunad Grama Panchayath intimating that with respect to the application for building permit to construct compound wall the concerned ::7:: W.P.(C).Nos28785 & 33660 Of 2010 revenue authority is asked to submit site plan and further informed that the application could be granted only after obtaining report of the authority concerned. The Tribunal did not consider the contentions raised by the Panchayath and observed that when the properties of the appellants are in a different survey sub division from that of the property of the Anganwadi and other neighbouring properties, whether the plan submitted is correct or not can be easily be verified with reference to the survey records and appellants are directed to produce the relevant survey sketch. The Tribunal also observed that in the circumstances, there was no reason for the Secretary not to pass final orders on the application for permit within the period specified by this Court. The Tribunal further observed that the conduct of the Secretary in not passing final orders on the application for building permit submitted by the petitioner within the time specified in W.P.(C).No.12063/2010 is apparently maladministration by the Secretary. For the said reasons, the Tribunal set aside the notice dated 5.6.2010 and directed the Secretary to pass final orders within the time prescribed therein. Ext.P11 is the order passed by the Tribunal. ::8:: W.P.(C).Nos28785 & 33660 Of 2010 9. Petitioners pointed out that immediately after receipt of the plan submitted by the respondents for construction of the compound wall, the Assistant Engineer was deputed for verification of the work. On enquiry and inspection, the Assistant Engineer found that as per the site plan the plot area in survey No.137/8 is mentioned as 526 M² (13 cents). But, as per the site plan measurement is mentioned as 564 M². The Assistant Engineer reported that as per the site plan submitted for approval 38 metre square is in excess as per the site plan when compared to the document. It is also reported that apart from the defect in the site plan the respondents included 2 cents of land in survey No.137/8 which is the property of the Panchayath as per Ext.P1 land relinquishment application dated 22.12.1986. Going by the report of the Assistant Engineer it is contended that the intention of the respondents is to encroach in to the property of the Anganwadi and to reduce the same in to their possession. It is contended that the site plan submitted includes the property of the Anganwadi and therefore, the Panchayath is of the view that the measurement of the property is necessary for resolving the issue involved in the application for building permit and approved ::9:: W.P.(C).Nos28785 & 33660 Of 2010 plan. It is also pointed out that the Panchayath has no intention to protract any of the proceedings but only to protect the Anganwadi's property where a large number of small children are studying. It is pointed out that the Tribunal did not consider the fact that the site plan submitted by the respondents is in excess than the area mentioned in the document. The findings of the Tribunal that the property of the Anganwadi and respondents are in different survey numbers is wrong. The Anganwadi property is also in R.S.No.137/8. It is pointed out that by mistake the Assistant engineer mentioned the property of the Anganwadi in survey No.136/8 in the place of 137/8. 10. Taking into consideration the facts, circumstances and considering the contentions of the parties, there is nothing wrong in the Panchayath seeking the assistance of the revenue authorities for measurement and proper identification of the property. The decision to measure the property was taken considering the complaints made by the local people including staff and parents of the Anganwadi and the report submitted by the Assistant Engineer. ::10:: W.P.(C).Nos28785 & 33660 Of 2010 11. Accordingly, Ext.P11 is quashed. W.P.(C). No.28785/2010 is disposed of directing the Panchayath to pass final orders, as expeditiously as possible, after carrying out the measurement of the properties with the assistance of the revenue officials. The connected writ petition, W.P.(C).No.33660/2010 is disposed of directing respondents 1 & 2 to consider the request of the Panchayath in Ext.P14 communication and to measure and locate the properties as requested within a period of one month from the date of receipt of a copy of this judgment. HARUN-UL-RASHID, Judge. bkn/-