IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 WA.No. 1324 of 2011() ------------------------ AGAINST THE JUDGEMENT IN WPC.19299/2011 Dated 17/08/2011 .................... APPELLANT(S): PETITIONER ------------------------------ THOMAS MATHEW, AGED 80 YEARS, S/O.THOMAS, MUTHUPLACKAL HOUSE, MUTHUVANKUDY KARA, KUNCHITHANNY VILLAGE, DEVIKULAM TALUK. BY ADV. SRI.PADAYATTEE YELDO RESPONDENT(S): RESPONDENT ---------------------------------- THE VELLATHOOVAL GRAMA PANCHAYATH, REPRESENTED BY THE SECRETARY, VELLATHOOVAL, DEVIKULAM TALUK - 685 603. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. CHELAMESWAR, C.J & P.R.RAMACHANDRA MENON, J. ---------------------------------------------- W.A.No. 1324 of 2011 ---------------------------------------------- Dated this the 20th day of September, 2011 JUDGMENT J.Chelameswar, CJ. Aggrieved by the judgment dated 17th August, 2011 in W.P (C).No. 19299 of 2011, the petitioner preferred the instant appeal. The said Writ Petition was filed with the prayers as follows: “a. To call for all the records and connected documents from the office of respondent to prove the ownership of land vested with the Panchayat sought to evict the petitioner and other dedtails in connection with Exhibit P7 Order and or to issue a Writ of Mandamus or any other appropraite writ, order or direction, declaring that all actions initiated by respondent as per Ext.P7 order is ultravires act and never protected under The Kerala Panchayat Raj Act and or allied Rules made there under and or b. To issue Writ of Certiorari or any other appropriate Writ Order or Direction quashing all actions initiated against the petitioner lead to Exhibit P9 proceedings are illegal and misconceived by the respondent and liable to be quashed in justice and or c. To issue such other further relief as this Honorable Court may deem just and proper in the circumstances of the case.” W.A.No.1324 of 2011 2 2. Exhibit P7, which is the impugned order in the Writ Petition, is a notice dated 1.7.2011 issued by the sole respondent under Rule 5 of the Kerala Panchayath Raj (Removal of Encroachment and Imposition and Recovery of Penalty Rules, 1996. By the said proceedings, the appellant herein called upon to show cause why the appellant should be evicted from a particular piece of property specified in the notice on the ground that the appellant is an encroacher. 3. By the judgment under appeal, a learned Judge of this Court disposed of the Writ Petition quashing the abovementioned Exhibit P7, however, preserving the liberty of the Panchayat to initiate fresh proceedings, if so advised. 4. The case of the appellant is that on an earlier occasion, the appellant herein had approached this Court by way of W.P(C). No. 7805 of 2011, which was disposed of by judgment dated 8.4.2011. The subject matter of dispute in the said Writ Petition is also alleged to be the same property, which is the subject matter of dispute in the instant Writ Appeal. The Writ Petition was allowed on the ground that it was not preceded by a notice. The operative portion of the said judgment reads as follows: W.A.No.1324 of 2011 3 “....Admittedly, no such notice was also issued in this case. Therefore, even if it is taken that the petitioner has unauthorisedly occupied the land belonging to the Panchayat there is a total failure to 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 be 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.” 5. The appellant relies heavily on the observation made by the learned Judge in the last paragraph extracted above to the effect that it is open to the petitioner to resort to the remedy to establish his civil right. It appears that the appellant had already preferred O.S.No.57 of 2011 before the Munsiff's Court, Devikulam (further details of the suit are not available on record), even before he approached this Court in the above Writ Petition. W.A.No.1324 of 2011 4 6. We do not see any reason to interfere with the judgment under appeal. If the appellant succeeds in the abovementioned civil suit, depending upon the nature of the relief sought in the suit, necessary legal consequences can follow from the decree in the suit. The Writ Appeal is, therefore dismissed at the admission stage itself. J.CHELAMESWAR, CHIEF JUSTICE P.R.RAMACHANDRA MENON, JUDGE vgs