IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 11TH FEBRUARY 2008 / 22ND MAGHA 1929 WP(C).No. 4285 of 2008(I) ------------------------- PETITIONER: ------------ 1. N.N. SAIDALAVI HAJI, AGED 67 YEARS, S/O. MOOSSANKUTTY, NADUVIL NALAKATH HOUSE, TANUR (TENANT, XIII/961, SHOP ROOM OF TANUR PANCHAYAT). 2. A.P. GOPALAKRISHNA MENON, S/O. GOPALANKUTTY MENON, AKKIPARAMBATH, PANANGATTUR (TENANT OF XIII/950 SHOP ROOM, TANUR PANCHAYAT). 3. P. HAMZA, S/O. KOYASSAN, PALLIKKALAKATH, TANUR (TENANT OF XIII/951, SHOP ROOM, TANUR PANCHAYAT). 4. T. SURENDRAN, S/O. KARAPPANKUTTY, HOTEL SABITA, BAKERY AND COLL BAR, TANUR (TENANT OF SHOP NOS.XIII/936, XIII/1326, TANUR PANCHAYAT). 5. A. SHAHUL HAMEED, SHAJI QUARTERS, TANUR (TENANT OF SHOP ROOM NO.XIII/949, TANUR PANCHAYAT). 6. C.P. ASHOKAN, S/O. PARAMESHWARAN, CHERIYAPARAMBATH, PANANGATTUR (TENANT OF SHOP NO.XIII/948, TANUR PANCHAYAT). 7. C.V. SUNEERA, CHERICHAM VEETTIL, KATTILANGADI, TANUR (TENANT OF SHOP ROOM NO.XIII/928, TANUR PANCHAYAT) 8. ENNISSERI MAMMATU, W/O. ABOOBACKER, MULLAN MADAKKAL HOUSE, TANUR (TENANT OF SHOP ROOM NO.XIII/929). 9. V.M. MOIDEEN, S/O. MOHAMMED HAJI, G.S.R. VEGETABLES, TANUR (TENANT OF SHOP ROOM NOS.XIII/933, TANUR PANCHAYAT). 10. YAHU, S/O. UMMER, TARAMMEL HOUSE, P.O. TANUR (TENANT OF SHOP ROOM NO.XIII/932, TANUR PANCHAYAT). BY ADV. SRI.K.K.MOHAMED RAVUF WP(C) No. 4285/2008 RESPONDENTS: ------------- 1. THE SECRETARY, TANUR GRAMA PANCHAYAT, P.O. TANUR, MALAPPURAM DIST 2. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY FOR LOCAL ADMINISTRATION, SECRETARIAT, THIRUVANANTHAPURAM. *3. THE DISTRICT COLLECTOR, MALAPPURAM (*SUO MOTU IMPLEADED AS ADDITIONAL R3 AS PER ORDER DATED 05/02/2008 IN THE WRIT PETITION) R1 BY SRI.HARISH R. MENON SRI.K.T.SHYAMKUMAR SHRI.K.J.MOHAMMED ANZAR, SR. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE, J. ------------------------- W.P.(C) No. 4285 of 2008 --------------------------------- Dated, this the 11th day of February, 2008 J U D G M E N T Ext.P1 eviction notice issued to the 1 st petitioner and similar notices issued to the other petitioners, who are tenants of various shop rooms situated within the area of the 1 st respondent Panchayat, is under challenge in this writ petition on various grounds. It is contended that these notices, in as much as, they granted only 24 hours time to surrender the premises and do not give opportunity to file objections is per se, violative of Rule 5 of Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules 1996. It is contended that Ext.P1 and similar notices have been issued by the Panchayat not on its own but as directed by the District Collector. Placing reliance on the judgment of this Court in Mohammedkutty Vs. Kunhikoya Haji, reported in 1985 KLT 69, it is contended that the Panchayat Secretary, who is the statutory authority, is expected to exercise the powers statutorily vested on him on his own and not on the dictation of the District Collector or anybody else. It is also contended that Rules 4 & 5 of the Kerala Panchayat Raj (Removal of Encroachment and Imposition WP(C) No. 4285/2008 -2- and Recovery of Penalty for Unauthorised Occupation) Rules 1996 are beyond the jurisdictional competence of the Government, since Section 254 (2) (xxix) gives power to the Government to make Rules for imposition and recovery of penalties for the unauthorised occupation of public roads or other land vested in or belonging to the Panchayats and not in respect of buildings. 2. The Panchayat has filed a detailed counter affidavit and I have heard the submissions of Shri.K.K.Mohamed Ravuf - learned counsel for the petitioner, Shri. Harish.R.Menon - learned counsel for the Panchayat and also the learned Government Pleader, Shri.K.J.Mohamed Anzar. 3. Having regard to the submissions addressed, I find merit in the submission of the learned counsel for the petitioner that Ext.P1, in so far as, it grants only 24 hours notice to the petitioners for surrendering the premises is violative of Rule 5. Learned counsel for the Panchayat endeavored to sustain Ext.P1 by referring to Exts.R1(c) and R1(d). But it is seen that Exts.R1(c) and R1(d) are addressed to the land lord of the building, while the rules contemplate issuance of the notices to the occupants of the buildings. The buildings are admittedly occupied by the petitioners, WP(C) No. 4285/2008 -3- who are tenants under the land lords. Ext.P1 does not give any opportunity to the occupants to file objections under Rule 4 & 5, which contemplate filing of objections against notice, consideration of the objections by the Panchayat so filed and passage of orders considering the objections on their merits. 4. Learned counsel for the Panchayat would refer to Exts.R1(f) representation submitted by the petitioners before the Secretary to Ext.R1(g) representation submitted by the Kerala Vyapari Vyavasayi Ekopana Samithi, Tarur unit representing the petitioners and also to Ext.R1(i). The learned counsel argued that what the law contemplates is only notice to the occupants. These representations, according to him, will show that the petitioners were having actual notice, and therefore, this Court will not be justified in granting further opportunity to the petitioners for filing objections. I do not agree. Rule 5 contemplates written notices to the occupants giving details of the Puramboke land allegedly encroached upon. Ext.P1 and similar notices issued by the Panchayat do not satisfy the requirements of Rule 5. Since the identity of the properties allegedly encroached upon is not under dispute and is shown in Ext.P1 and like notices, I am inclined to WP(C) No. 4285/2008 -4- grant only time to the petitioners for filing written objection to Ext.P1 and like notices. Accordingly, I dispose of the writ petition in the following terms. The petitioners will file objections to Ext.P1 within a period of 10 days from today. If objections are received from the petitioners within the time allowed as above, the Panchayat will hear the petitioners and pass orders on the objections within another 10 days from that date. Once orders are passed, the orders will be communicated to the petitioners. It is made clear that other grounds raised by the petitioners have not been upheld by this Court. Those grounds are turned down. (PIUS C.KURIAKOSE, JUDGE) jg