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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