HIGH COURT OF KERALA
WP(C).No. 11904 of 2016 ( 20 March, 2017)
1.The petitioner is a registered Committee under the Registration Act 21/1860. It is a committee, that was formed for the purposes of upliftment of agriculturists in the Manjeshwaram Panchayath and its area of operation is stated be within the territorial limits of the Manjeswaram Panchayath. The petitioner is aggrieved by the alleged encroachment, by the 5th respondent, onto the road leading to the paddy fields owned by the members of the petitioner committee. It is the case in the writ petition that, on account of the alleged encroachment by the 5th respondent and another on to the road leading to the paddy fields, tractors, tillers and other vehicles for agricultural operations, cannot be brought to the paddy field through the road in question. It is stated that, the petitioner filed an application before the Taluk Surveyor for the purposes of getting a measurement done, of the road, in order to ascertain, whether there was any encroachment at the instance of the 5th respondent and others. By Ext.P2 report of the Taluk Surveyor, it was pointed out that there was in fact an encroachment by the 5th respondent and another to the said road. Thereafter, pursuant to an RTI application filed by the petitioner, it was informed that, the Revenue Divisional Officer(RDO) had already intimated the respondent Panchayath to take action, pursuant to the report of the Taluk Surveyor, against those who had allegedly encroached onto the road in question. On receipt of the said information from the office of the RDO, the petitioner preferred Ext.P4 representation dated 10.02.2016 before the respondent Panchayath, requesting them to take action against the encroachers, including the 5th respondent, for the purposes of removing the encroachment, so as to facilitate the easy ingress and egress of vehicles to and from the paddy fields, belonging to the members of the petitioner committee.
2. A counter affidavit has been filed on behalf of the 2nd respondent, wherein, the sequence of events leading to the communication of the RDO to the Secretary of the Manjeswaram Grama Panchayat has been detailed. It is stated that, notwithstanding the letter sent by the RDO to the Panchayath, the Secretary of the Panchayath had not initiated any action for removing the encroachment from the road that is vested with the Panchayath. In the counter affidavit filed on behalf of the 5th respondent, the 5th respondent would rely on the orders passed in a civil suit that was instituted by the 5th respondent against one Moideenkunhi, who is stated to be the Secretary of the petitioner Committee. A perusal of Ext.R5(e) order would indicate that it is an order passed injuncting the said Moideenkuhi from interfering with the peaceful possession and enjoyment by the petitioner, of property belonging to the petitioner, that was shown as the scheduled property in the suit. The injunction also restrains the said Moideenkunhi from demolishing the compound wall constructed on all four sides of the suit property. It is relevant to note that the said order, passed in the suit instituted by the 5th respondent before the Additional Munsiff's Court, Kasaragod, does not consider the issue with regard to the alleged encroachment by the 5th respondent into 'Puramboke' land. The counter affidavit of the 5th respondent also raises allegations against the bona fides of the petitioner, and also relies on documents to show that complaints have been received by the local authority with regard to the large scale conversion of paddy land at the instance of members of the petitioner Committee. The said documents are produced by the 5th respondent to throw light on the bona fides of the petitioner, while maintaining the present writ petition. Although no counter affidavit has been filed on behalf of the respondent Panchayath, the learned Standing counsel for the 3rd respondent Panchayath would submit that, the Panchayath was not in a position to take action pursuant to Ext.P4 representation of the petitioner, solely because, it was informed of the suit, that had been instituted by the 5th respondent against Sri.Moideenkunhi, who was the Secretary of the petitioner Committee.
3. I have heard the learned counsel for the petitioner, the learned Standing counsel for the respondent Panchayath, the learned counsel for the 5th respondent and the learned Government Pleader for the official respondents of the State.
4. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that, the orders in the suit, that are relied upon by the 5th respondent in his counter affidavit, may not come to the assistance of the said respondent in insulating him from an enquiry with regard to the alleged encroachment by him into 'Puramboke' land. As has already been noted by the Supreme Court in Jagpal Singh & Ors. v. State of Punjab & Ors. [AIR (2011) SCC 1123], and followed by this Court in subsequent decisions, an illegal encroachment onto Panchayath land cannot be allowed, merely because the unauthorised occupation subsisted for several years. It is made clear in the said judgment that such unauthorised occupants are liable to be evicted since the continued unauthorised occupation for several years, by the encroachers of Panchayath land, cannot be in public interest. I also find that, a report of the RDO, based in turn on the report of the Taluk Surveyor, finds that there is a prima facie encroachment by the 5th respondent and another on to 'Puramboke' land that is vested in the Panchayath. It is on this basis that the RDO had intimated the 3rd respondent Panchayath to take action against those found to have encroached onto the 'Puramboke' land vested in the Panchayath. In my view, in the absence of any order from the Civil court that would interdict a consideration by the respondent Panchayath of the issue of encroachment, it would be incumbent upon the 3rd respondent Panchayath to act on the instructions issued to them by the RDO and take expeditious action to remove any encroachment found over the 'Puramboke' land vested in the Panchayath. Accordingly, I dispose the writ petition, with a direction to the 3rd respondent Panchayath to act on Ext.P4 representation preferred by the petitioner before it, and decide on the issue of whether or not there is any encroachment, over the road forming part of 'Puramboke' land, that is vested in the Panchayath, at the instance of the 5th respondent and others. The respondent Panchayath shall issue notices to the persons mentioned in the report of the Taluk Surveyor, which has been forwarded to it by the RDO, and thereafter, take a decision in the matter after hearing the said persons as also the petitioner, within a period of two months from the date of receipt of a copy of this judgment. I also make it clear that , in the event of the Panchayat finding an encroachment as indicated in the Taluk Surveyor's report, it shall take prompt action to remove the said encroachment, after notice to the persons concerned. The petitioner shall produce a copy of the writ petition along with a copy of this judgment, before the 3rd respondent Panchayath, for further action.
The writ petition is disposed as above.
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