IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 30TH DAY OF MARCH 2011/9TH CHAITHRA 1933 WP(C).No. 3125 of 2008 (V) -------------------------- PETITIONER(S): -------------------------- 1. M.T. THOMAS, S/O. JOSEPH, AGED 59 YEARS, RESIDING AT MATTAPPALLIL HOUSE, KOZHA P.O., KOTTAYAM. 2. C.M. ROSAKUTTY, W/O.M.T.THOMAS, AGED 58 YEARS, RESIDING AT MATTAPPALLIL HOUSE, KOZHA P.O., KOTTAYAM. BY ADVS.SRI.HARISH R. MENON SRI.K.T.SHYAMKUMAR RESPONDENT(S): ----------------------------- 1. KURAVILANGAD GRAMA PANCHAYAT, KURAVILANGAD P.O., KOTTAYAM DISTRICT,PIN-686 633. REPRESENTED BY ITS SECRETARY. 2. BENNY, S/O. PHILIPOSE MATHAI, AGED 38 YEARS, RESIDING AT NADUVEETTIL HOUSE, (PADINJARE MATTAPPALLIL), KOZHA P.O.,KOTTAYAM. R1 BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30-03-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.3125/2008 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE SALE DEED IN FAVOUR OF THE 1ST PETITIONER HEREIN. P2 COPY OF THE REPRESENTATION DATED 05/01/2005 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT P3 COPY OF THE SKETCH SHOWING THE LIE AND NATURE OF THE PROPERTY AND THE BRIDGE CONSTRUCTED BY THE PETITIONERS, PREPARED BY A RETIRED SURVEYOR. P4 COPY OF THE REPRESENTATION DATED 09/07/2007 P5 COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 24/01/2008 RESPONDENT'S EXHIBITS AND ANNEXURES: ANNEX R1(A) COPY OF THE REPRESENTATION DATED NIL /TRUE COPY/ P.S.TO.JUDGE sts C.T.RAVIKUMAR, J. --------------------------------------- W.P(C)No.3125 of 2008 ---------------------------------------- Dated 30th March, 2011 JUDGMENT This writ petition has been filed mainly challenging Ext.P5 order and seeking issuance of a writ of mandamus commanding the first respondent to consider Ext.P4 representation submitted by the first petitioner and thereafter grant permission to the petitioners to use the bridge already constructed by them. 2. The petitioners are man and wife and they are retired High School Teachers. An extent of 33 cents of property in Re-Survey Nos.389/1 and 330/11 A of Kuravilangad Village was purchased in the name of the first petitioner as per Ext.P1 sale deed. Admittedly, the western boundary of item No.1 of the property covered as per Ext.P1 document is a `thodu'. Item No.2 therein lies on the western side of the `thodu'. In short, item Nos. 1 and 2 in Ext.P1 are separated by the aforesaid thodu. There is also no dispute with respect to the position that the said thodu' is vested with the Panchayat. Earlier, contending that the second petitioner, who is the wife of the first petitioner, is a chronic asthma patient and requires frequent medical assistance, the petitioners WP(C).No.3125/2008 2 approached the Panchayat with a request to grant permission to construct a pathway or a motorable road and for that purpose to construct a bridge over the `thodu'. On receipt of Ext.P2 representation, on humanitarian consideration the request was granted and subsequently the petitioners have constructed a bridge over the `thodu' in question. It is the subsequent action on the part of the petitioners that ultimately led to Ext.P5 order and also the lis involved in this writ petition. After the construction of a motorable road and a bridge over the `thodu', with such permission, according to the respondents, the petitioners have put up a gate. Subsequently, the residents of the locality mainly the agriculturists who used to pass through the steps constructed on the side of the `thodu' represented the Panchayat that on account of the illegal construction effected by the petitioners they are incapacitated to carry out their agricultural operations and virtually, the enjoyment of the `thodu' has also been considerably reduced by the illegal action on the part of the petitioners. In effect, the request of such agriculturists is to demolish the illegal construction effected by the petitioners and to restore the earlier position. According to the petitioners, on coming to know about the same the first petitioner has submitted Ext.P4 representation dated 9.7.2007. However, without issuing any reply to the same, all of a sudden, Ext.P5 was issued to the first petitioner whereby he was required to demolish the bridge and to remove the gate. It also carried a warning WP(C).No.3125/2008 3 to the first petitioner that in case of his failure to carry out the said directions the bridge would be demolished and the gate would be removed and the cost for such action would be realised from the petitioners. The contention of the petitioners is that prior to the passing of Ext.P5 order they were not put on notice and they were not at all afforded with an opportunity of being heard. It is in the said circumstances that this writ petition has been filed challenging Ext.P5 order. Indisputable facts obtained in this case are as follows:- The western boundary of item No.1 of the property covered as per Ext.P1 is a `thodu'. The eastern boundary of item No.1 is also a `thodu'. Evidently, over the `thodu' the petitioners have already constructed a bridge and then they had put up a gate on its entrance. 3. A statement has been filed on behalf of the first respondent in this writ petition. It is stated thereunder that the petitioners have constructed a small bridge and put up a gate virtually closing down the portion over the `thodu'. It is further stated therein that the irrigation department constructed stairs at four feet width in the `thodu' in order to carry out the agricultural operations. It was under the said circumstances that the agriculturists in the area submitted Ext.R1(a) calling the respondent Panchayat to take appropriate action in the matter including WP(C).No.3125/2008 4 demolition of the illegal construction and also restoration of the `thodu' in its normal position. In short, going by the statement of the first respondent, the petitioners have constructed the gate not in the boundary of their property whereas they have put up the gate encroaching upon the bridge. According to the respondents, it was in the said circumstances that Ext.P5 was issued. The petitioners have no right to contend that the gate put in by them at one end of the bridge is not liable to be removed, it is contended. 4. The Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for unauthorized occupation) Rules, 1996 (for short `the Rules') provides the procedures to be adopted in case of illegal encroachment and unauthorized occupation of property belonging to the Panchayat. Rule 4 therein deals with eviction of unauthorized occupants. The procedures have been prescribed under Rule 5 of the Rules. In fact, the petitioners also rely on the same. According to the petitioners, prior to the issuance of Ext.P5 in terms of the provisions under Rule 5 they should have been served with notice and only after adhering to the procedures prescribed under the Rules they are liable to be evicted. On 25.1.2008 when this matter came up for consideration, this Court passed an interim order staying all further proceedings pursuant to Ext.P5 and the said order has been extended WP(C).No.3125/2008 5 from time to time and it is still in force. 5. In view of the said contention the learned counsel for the first respondent submits that Ext.P5 can be construed as a notice in terms of the Rules. The learned counsel for the petitioners, however, submits that treating Ext.P5 as a notice in terms of the provisions under Rule 5 will not save the petitioners from the situation as Ext.P5 did not contain the requisite details so as to enable them to give appropriate reply to the same. In short, according to them, the brief description of the land alleged to have been unauthorizedly occupied by them is not made in Ext.P5. I am of the view that the said contention can only be construed as a technical one. In this case, it is to be noted that the very case of the petitioners is that they constructed the road and put up the bridge over the thodu only based on the sanction granted by the Panchayat taking humanitarian approach. Evidently, the petitioners themselves admit that on obtaining such permission they themselves have constructed a bridge over the `thodu'. It is the gate that was put up at one end of the said bridge and also their subsequent action in demolishing the stairs constructed by the irrigation department that led to the complaint from the agriculturists. I do not want to make any further observation with respect to those aspects. If there is unauthorized occupation or construction, on the land belonging to the Panchayat, certainly they are WP(C).No.3125/2008 6 under obligation to take steps including steps for the purpose of evicting such illegal encroachment and in fact, it is for that precise purpose that the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for unauthorized occupation) Rules has been framed. In view of the fact that the agriculturists in the locality have already approached the Panchayat for taking appropriate steps as per Ext.R1(a) and considering the serious nature of the allegations made with respect to the unauthorized and illegal encroachment it will only be appropriate for the Panchayat to take appropriate steps, in accordance with law, expeditiously to evict the unauthorized occupation. Since Ext.P5 has been under stay from 25.1.2008 no coercive steps were taken based on Ext.P5. It will be open to the respondents in terms of the above directions to take appropriate steps afresh and proceed further in accordance with law. Further action shall be taken with notice to the petitioners and also to persons who are likely to be affected. The writ petition is disposed of accordingly. Sd/- C.T.RAVIKUMAR Judge TKS