Tuesday, June 26, 2012

In Other Courts: Thressamma Varkey @ Thankamma vs Athirampuzha Grama Panchayath


IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 38230 of 2010(C)

1. THRESSAMMA VARKEY @ THANKAMMA,

... Petitioner

Vs

1. ATHIRAMPUZHA GRAMA PANCHAYATH,

... Respondent

2. THE SECRETARY,

3. STATE OF KERALA,

For Petitioner: DR.GEORGE ABRAHAM

For Respondent: No Appearance

The Hon'ble MR. Justice C.T.RAVIKUMAR

Dated: 16/03/2011

O R D E R

C.T.RAVIKUMAR, J.

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W.P.(C)No.38230 of 2010

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Dated 16th March, 2011

JUDGMENT

The petitioner is conducting a small bunk in Ward No.7 of Athirampuzha Grama Panchayat at a place near to Chandhakkulam and engaged in the business of selling dry fish. Invoking the provisions under the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Regulation of Penalty for unauthorised Occupation) Rules 1996 (for short `the Rules) steps were taken by the Panchayat to evict the petitioner. Feeling aggrieved by the steps taken by the Panchayat for that behalf the petitioner took up the matter before the Tribunal for Local Self Government Institutions by filing Revision Petition No.97 of 2010. The said revision petition was allowed and the impugned decision No.3(4) dated 7.7.2010 and notice dated 29.5.2010 viz., Exts. P5 and P6 respectively were set aside by the Tribunal, as is obvious from Ext. P7. Consequently, a direction was issued to the Panchayat to initiate fresh proper proceedings as per Rules 3 and 5 of the Rules without any delay, if there are any reason for doing so. In compliance with Ext. P7 the second respondent issued Ext. P8 notice requiring the petitioner to vacate the illegal occupation within 15 days from the date of receipt of Ext. P8. It also carried a caution that in case of her failure to comply with the said direction coercive steps would be taken and she would also be held liable for fine in accordance with the provisions. On receipt of Ext. P8, the petitioner responded to the same. Thereafter, she was afforded with an opportunity of being heard. Subsequently, Ext. P9 order was passed. As per Ext. P9, it was decided to evict the petitioner from the encroachment in terms of the provisions under the Rules and to effect recovery of the necessary expenses. It was also decided to impose a fine in terms of the note to Rule 3(1). It is in the said circumstances that this writ petition has been filed.

2. The petitioner is challenging Exts.P8 and P9. Consequential relief of issuance of writ of mandamus commanding respondents 1 and 2 to provide alternate accommodation to the petitioner to conduct the sale of dry fish in any other nearby place available in the Panchayat is also made in this writ petition.

3. A careful scanning of the contentions raised in this writ petition would reveal that there is no grievance for the petitioner that the action initiated against the petitioner is in violation of the salutary principle of audi alteram partem. She was issued with notice of hearing and she was heard in the matter. The petitioner did not have a case that she is occupying the place in question and conducting business in the bunk in Ward No.9 after obtaining the requisite licence and permit from the Panchayat. On the other hand, virtually, the petitioner admits that the occupation is unauthorised and as such, it can only be illegal. When a person has committed encroachment of public property and retain it for his/her own use, necessarily the competent authorities are under legal obligation to evict the trespassers from the public property. In fact, it is for that precise purpose that the above mentioned Rules have been framed. The action on the part of the respondents are only in tune with the relevant provisions therein. In that view of the matter, I am of the view that the action on the part of the respondents cannot be styled as ultra vires. It is well within the jurisdiction. Therefore, there is no scope for any interference with Exts. P5, P7, P8 and P9 and they call for no judicial review. I am fortified in my view by a recent decision of the Hon'ble Apex Court in Jagpal Singh and others v. State of Pubjab and others (ILR 2011 (1) Kerala 491). Evidently, the Hon'ble Apex Court while parting with the said decision given directions to all the State Governments in the country to prepare schemes for eviction of illegal and unauthorized occupants of Gram Sabha/Gram Panchayat/ Poramboke/Shamlat land and observed that these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village.

In the above circumstances, this writ petition is devoid of any merits and accordingly, it is dismissed.

Sd/-

C.T.RAVIKUMAR

Judge

TKS

// true copy //

P.S. to Judge

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