Showing posts with label Kerala high court. Show all posts
Showing posts with label Kerala high court. Show all posts

Saturday, January 2, 2021

News Clipping: Govt needs political will: HC [06.07.2017]

K.C. Gopakumar

KOCHI , JULY 06, 2017 19:13 IST

To take on encroachments on government land

Emphasising the need to have political will on the part the government to take action against encroachments on government land, the Kerala High Court has asked whether it is “too much for the citizenry to expect the government, which came to power with the simple pledge that every thing will be set right, to act positively and effectively.”

The court, upholding the proceedings initiated by revenue authorities to take over a private resort and its 22 cents of land, observed: “What is required is the political will to proceed and official vigour to implement. If either is dampened then it is the public interest that is compromised.”

The court said there was no dearth of legal precedents of the Supreme Court and the High Court to “trigger the government into action to take back what is due to the people and to put it to public benefit. The legislature too has brought in enactments to proceed for such recovery.”

The court further pointed out that in Jagpal Singh and others vs State of Punjab and others case, the Supreme Court had deprecated the large-scale encroachments by unscrupulous land grabbers using muscle, money and political clout. In fact, the Supreme Court had directed all the State governments to prepare schemes for eviction of illegal/ unauthorised occupants of government land or lands vested with local authorities.

The court observed that the Supreme Court directives were relevant for all times and the lethargy of the authorities could not confer new right on encroachers. There was no requirement for a special scheme in the State since the Land Conservancy Act granted the authorities constituted thereunder to proceed for the recovery of what belonged to the State. It was “trite law” that public interest was paramount and even in the case of privately held lands, deprivation of property was possible, subject to the holder being amply compensated and the State resorting to acquisition.

When the petition by V.V. George, owner of the resort, against the eviction proceedings came up for hearing, Additional Advocate General Ranjith Thampan argued that the resort was constructed on government land. The land was given to one Thomas Michael for temporary occupation for non-agricultural purposes on payment of rent. He had then transferred the land to Mr. George violating the lease condition that the land shall not be transferred for three year. The petitioner was a rank “trespasser.”

Friday, October 5, 2018

Ushakumari vs. The Pattanakkad Panchayath [Order dated 20.01.2016]


HIGH COURT OF KERALA 

WP(C).No. 31650 of 2011 (E) ( 20 January, 2016)



1.It is the bounden duty of the Panchayat to remove all illegal encroachers and remove the constructions made. It has been so held in Jagpal Singh and Others v. State of Punjab and Others [2011 (1) KHC SN 39 (SC)]. It has been held therein as follows:-

"Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorised occupants of Gram Sabha/ Gram Panchayat/ Poramboke/ Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularising the illegal possession. Regularisation should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary, or other public utility on the land."

2. Ext.P6 resolution of the Panchayat permitting the illegal occupants to continue at present cannot be countenanced. Ofcourse whether the occupants are entitled to assignment on registry is a different question. The application if any pending in that regard has to be dealt with in accordance with law. But the encroachers cannot continue if the assignment on registry is refused. There has been no proper application of mind by Panchayat in adopting Ext. P6 resolution. May be the suit filed by the predecessor in interest of the petitioner was dismissed. It is stated that the suit was dismissed on a technical ground only. The dismissal of the suit does not regularise the occupation of respondents 4 to 6. The Panchayat has to probe as to whether the occupation is on the basis of any semblance of right. I quash Ext. P6 resolution as being contrary to law.

3. Respondents 1 and 2 are directed to reconsider the issue with notice to the petitioner and respondents 3 to 6. The same shall be done within a period of two months from today. Status quo shall continue till orders are passed anew in that regard.

The writ petition is disposed of.

V. CHITAMBARESH JUDGE DCS

Tuesday, September 18, 2018

V.V. George vs. The District Collector [Order dated 04.07.2017]

HIGH COURT OF KERALA

W.P(C).No.19733 of 2017 (N) (04/07/2017)



The petitioner challenges Exhibit P6 order passed under the Kerala Land Assignment Rules, 1964 [for brevity "Assignment Rules"] and the consequential proceedings taken by Exhibit P7 under the Kerala Land Conservancy Act, 1957 [for brevity "Conservancy Act"]. The ground raised is that he being the person in possession was never issued with notice under the Conservancy Act. Exhibit P7 ordered eviction from 22 cents of property in Survey No.62/10-C and 62/28-A in Kanan Devan Hills Village of Devikulam Taluk in Idukki District. The petitioner is said to have obtained possession of the said land from one Thomas Michael, who obtained a grant of 22 cents of land by proceedings at Exhibit P1 dated 10.12.1986. Another 3.4 cents of land, contiguously lying was also put in possession of a partnership; in which Thomas Michael was a partner, as evidenced by Exhibit P2. In the said property the petitioner has been running a home-stay for long and the eviction notice under the Act was issued in the name of the predecessor-in-interest of the petitioner. The petitioner is sought to be evicted, even without a notice to him, is the contention urged.

2. It is argued by the learned Senior Counsel appearing for the petitioner that though Exhibit P1 was initially for a period of three years, renewal fees were paid by Thomas Michael upto 1999-2000. The petitioner, together with a partnership firm, was carrying on business in tea in the said land; from which business, the partnership withdrew and agreed for transfer of licence in the name of the petitioner. The petitioner also has filed a detailed reply affidavit, producing various documents to buttress the above contention. Exhibits P11 and P12 are specifically referred to. Exhibit P12, comprising of two communications, are addressed to the Company which executed Exhibit P2 agreement with the partnership firm. Therein, it is stated that the partnership along with the petitioner was carrying on tea business and that the licence agreement may be renewed in the name of the petitioner. Exhibit P11 is addressed to the Grama Panchayat, which is also on similar terms; upon which the petitioner was also granted D&O Licence, based on which he has been continuing in the premises. The licence issued by the Munnar Grama Panchayat in 2007 and 2017 are also produced as Exhibits P4 and P5. It has to be immediately noticed that though the petitioners contention is that he had been carrying on business in tea, the license issued is for lodging and home-stay.

3. The learned Additional Advocate General appearing for the State takes me through Exhibit P1 to contend that it was only a temporary grant for three years and there could never have been a renewal of the same. Clause (3) of the grant, which is in the form of Appendix VII under the Kerala Land Conservancy Rules, 1958 [for brevity "Conservancy Rules"], prohibits any transfer of the rights of the grantee. It is pointed out that Exhibit P3 notice was issued in the year 2007 against the petitioner. In the counter affidavit, it has been specifically pointed out that Thomas Michael had filed an application for assignment alleging that he was in possession of the land from 1971. However, the Property Assessment Register 1991-1992 to 1996-97 of the Munnar Grama Panchayat [Exhibit R2(b)] shows the building in the property, to be that owned by the Public Works Department. The Assistant Engineer, PWD informed the Tahsildar about the building having vested with the PWD [Exhibit R2(c)]; on the basis of which the application for assignment was rejected by the Tahsildar.

4. Appeal was filed against the order; in which by Exhibit R2(d) there was a remand made. In compliance with Exhibit R2(d), the Tahsildar, after hearing the applicant, rejected the application for assignment as per Exhibit R2(e). Based on Exhibit R2(e) further proceedings were also issued as per Exhibit R2(f). The conditions for a valid assignment are house construction, agriculture purpose and beneficial enjoyment; none of which is available in the instant case, asserts the learned Additional Advocate General. It is also pointed out that the objection of absence of notice cannot be raised by the petitioner since admittedly he is a partner of the original grantee. The learned Senior Counsel for the petitioner would, however, refute the contention of partnership and claim that the petitioner had been carrying on business by himself and not under partnership. It is also argued that the Government lands in KDH Village are similarly possessed by more than 100 persons, which has been proposed to be regularised; as per the newspaper reports produced along with the reply affidavit. The learned Additional Advocate General stoutly denies any move for regularisation.

5. Thomas Michael under whom the petitioner claims possession was continuously before the authorities and had suffered various orders which eventually has led to the eviction under the Conservancy Act. In passing it is to be noticed that Exhibit P6 order refers to the non appearance of Thomas Micheal despite notice, in the appeal under the Assignment Act and the Head Clerk of the Sub-Collector's Office having met him personally at his residence when he denied having made any application or appeal under the Act. Still there was appearance of an Advocate on 12.04.2017 and 03.05.2017, when the appeal was heard and the impugned order passed. The application for assignment also having been dismissed and the appeal too, by Exhibit P6, there can now be no rights claimed by the person who was originally given the grant and put in possession of the property and in such circumstance the petitioner, who is a rank trespasser, can have no right greater than that of the original grantee.

6. Exhibit P1, as is argued by the State, is a temporary grant of State land for temporary occupation for three years. Clause (3) of Exhibit P1 also prohibits transfer "to any other persons the rights hereby conveyed". Though the same had been permitted, with the previous sanction of the authority who has made the grant, a reading of Appendix VII as appended to the Rules would indicate that the provision for sanction has been done away with in 1966 itself. In any event, the petitioner does not have a contention that the transfer to him has been sanctioned by any authority. The learned Senior Counsel has contended that there was no alienation effected and he was only in permissive occupation by the original grantee. Even that cannot be countenanced, since the temporary occupation awarded to the grantee could not have been transferred to the petitioner going by the specific provision therein. Further if the claim is only of a permissive occupation as has been already found, the petitioner cannot have a greater right than the original grantee.

7. Clause (6) of Exhibit P1 indicates that the grant was made for 'putting up a shop'. It is the specific contention of the State in its counter affidavit that the original grantee established an arrack godown, in the building existing in the property even at the time of the grant; which has not been denied by the petitioner in the detailed reply affidavit filed. The alleged permissive occupation was also for carrying on a business in tea. Admittedly now the petitioner is carrying on a home-stay. This Court has already considered the consequence of putting to use the lands assigned; for other purposes than which is specifically intended. It would result in revocation of such assignment, as held in Haridas v. State of Kerala [2016 (4) KLT 707]. Herein, it is to be noticed that there is not even an assignment made and the grant is only for a temporary occupation for three years, for putting up a shop.

8. The definition of "shop" has also been considered by this Court in W.P.(C) No.38287 of 2016, vide judgment dated 21.12.2016 [Madhu John v. State of Kerala & Others]. This Court was dealing with an assignment under the Kerala Land Assignment (Regulation of Occupation of Forest Land prior to 01.01.1997) Special Rules, 1993 (for brevity 'the Special Rules of 1993'); wherein assignment could be made inter alia for shop sites; which was held to be not covering the category of buildings constructed for lodging houses. The reasoning would squarely apply here too and though there was no assignment, the original grant was only to put up a shop; in which now a home-stay is carried on.

9. Exhibit P6 order elaborately considers the issue. It is found that even Thomas Michael was continuing unauthorisedly in the land after the initial grant of three years. As was noticed, Thomas Michael, on being contacted, had allegedly stated that he had not filed any application or appeal under the Assignment Act or Rules. But, Counsel has appeared and the matter was heard before orders were passed. It was found that the building existing in the land was shown in the Register of the Panchayat as belonging to the Public Works Department and later the possession is, as is seen from the Register of the Panchayat, on one M.M.Joseph. The Register has also noticed the ownership of the building in the column for "ownership: as "Assistant Engineer, P.W.D." and in the column for "enjoyment" as being with "Joseph Michael". The licence issued with respect to the property by the local authority is in the name of V.V.George. The Sub Collector finds that the land in question is "puramboke" as defined under Section 4 of the Conservancy Act and is a property reserved by the Government for public purposes and, hence, not assignable. The subject land had not been included in the list of assignable lands and the buildings erected there existed at the time of original grant and belongs to the PWD of the State. The transfer of possession is found to be in violation of the original grant and the public need for establishing a Village Office in the said land is also specifically referred to. This Court does not find any reason to interfere with the same.

10. This Court has to accept the argument of the State that the petitioner is a rank trespasser and notice was served on the original grantee at every stage; who has not even been made a party in the present writ petition. As is seen from the documents produced by the petitioner along with the reply affidavit, Exhibits P11 and P12, the partnership firm was carrying on the business along with V.V.George, the petitioner. The reference to Section 12 of the Conservancy Act made by the learned Additional Advocate General is very pertinent. A notice has to be issued only to the occupant or his agent. The contention is of a joint operation carried on by the petitioner and the partnership firm. One of the partners being the original grantee, having been issued with notice, there can be no claim of absence of notice.

11. Poulo v. State of Kerala [1976 KLT SN 23 (Case No.52)] and Muhammed Kutty v. Tahsildar[2013 (1) KLT 133] are decisions with respect to the requirement of a notice and the necessity to show the exact description of the land from which eviction is sought. It has already been found that the original grantee has been issued with notice and that satisfies the requirement of Section 12. As far as the description of the land, the eviction is sought from 22 cents of land. There is in existence 3.5 cents of land in the possession, which has to be demarcated.

12. As was admitted, the petitioner is carrying on a home-stay in the building existing in the property, which definitely is not the purpose intended by the original grant at Exhibit P1. The orders of the Tahasildar specifically find that the grant was never renewed and even the grantee had been, in illegal occupation after the three years from Exhibit P1. The petitioner also cannot be said to be in permissive occupation, since the rights under the grant cannot be conveyed in any manner. Though there is a contention that Thomas Michael paid the renewal fees upto 1999-2000, there is nothing produced to substantiate the same. Again, admittedly no amounts were paid after 2000. Thomas Micheal , himself has been found to be in illegal occupation of the property after the expiry of the period of grant of three years. The eviction got delayed only due to the proceedings initiated for assignment, which has now been concluded. The petitioner is found to be a rank trespasser in the property, if at all, he is in occupation.

13. One other ground raised by the State is that they are in dire need of the land and building for housing the Village Office to bring into effect the sanction for bifurcating KDH Village into two and forming the new Munnar Village. There is dearth of suitable land within Munnar Town and this particular land with a building is best suited for the purpose and the immediate public need also warrants the eviction. Sufficient support can be garnered from the judgment of the Hon'ble Supreme Court in Jagpal Singh and Others v. State of Punjab and Others [2011 (11) SCC 396], wherein large scale encroachments by unscrupulous land grabbers using muscle, money and political clout had been deprecated by the Hon'ble Supreme Court. The Hon'ble Supreme Court had directed all the State Governments in the Country to prepare schemes for eviction of illegal/unauthorised occupants of Government lands or lands vested in the local authorities. The directions are relevant for all times and the lethargy of the authorities cannot confer new rights on the encroachers. There is no requirement for a special scheme in the State since the Conservancy Act is in force and it grants ample power to the State and the authorities constituted there under to proceed for recovery of what belongs to the State. It is trite that public interest is paramount and even in the case of privately held lands, deprivation of property is possible, subject to the holder being amply compensated and the State resorting to acquisition. In the present case the petitioner does not have any claim for valid possession of the government land, either directly or indirectly.

14. The learned Senior Counsel for the petitioner quite conscious of the fate of the writ petition, sought for three months time to vacate the premises; which is stoutly opposed by the learned Additional Advocate General. Considering the entire circumstances, the time sought for by the petitioner shall be granted, provided the petitioner permits the Revenue authorities to immediately and peacefully enter the premises and carry out an inventory in the presence of the petitioner. Survey, if any, shall also be carried out and the petitioner shall be permitted to take out his personal belongings from the property. If the petitioner does not permit such entry of the Revenue officials, then appropriate action shall be taken to proceed with the eviction in accordance with law.

15. Much has been argued by the petitioner of other similar encroachments, of larger extents being continued with the tacit approval of the Government and its authorities. First and foremost such an illegality, even if existing, would not enable an encroacher to justify his encroachment. The contention with respect to other illegal occupants in the area being regularised is only on the basis of newspaper reports. This Court would desist from making any sweeping comments or issuing any broad directions, based merely on paper reports.

16. Suffice to notice that this Court had in Haridas specifically noticed an earlier judgment, wherein encroachers were directed to be evicted and had also directed the Government to look into the encroachments and violations of terms of assignment to get back Government lands. The observations are extracted hereunder:
"19. This Court in arriving at the above findings is further fortified by the judgment of a learned Single Judge dated 13.08.2009 in W.P.(C) No.9605 of 2008 (K.R. Ramanan & Another v. Kerala State Pollution Control Board & Others). Similar contentions were raised therein, wherein the factual aspects differed only on account of the assignment having been granted under the Special Rules for Assignment of Government Lands for Rubber Cultivation, 1960, in which lands; quarrying operations were conducted. The quarry owners 
therein also raised similar arguments of the quarrying permits being issued by the Government and the royalty having been regularly paid to the Government. Based on the specific terms of assignment, which was for the purpose of rubber cultivation, it was held that a possession certificate granted by the Village Officer to apply for quarrying permit or issuance of the quarrying permit by the Geologist would not confer any right on the petitioners to carry on an activity in the assigned lands which are different from the specific purpose for which the assignment was made. Similar conditions in the Special Rules of assignment were noticed to find that the lands are not only liable to be taken back by the Government but also the owners are liable to be proceeded against for the entire value of the granite stones quarried from the property. The silence of the Tahsildar and the Geologist in the counter affidavits filed with respect to the violations of the conditions of the patta was noticed with surprise. There were directions issued to cancel the Pattas issued in that case and also to take action against similarly situated assignees. The reliance placed by the petitioners on Annexure R2(c) judgment is irrelevant since the learned Single Judge reserved the right of the State to proceed for violation of terms of assignment; which is the specific ground raised herein by the State.

20. It is quite disconcerting that despite the various directions issued by this Court time and again; two of which as noticed in the afore-cited judgment and also in the matter pending before the Division Bench, has not changed the situation a bit. The Revenue authorities, a law unto themselves, have been violating the provisions and colluding with the assignees causing gross damage to the ecology and environment. Be that as it may; the petitioners herein were quite aware of the conditions of assignment; though their ignorance, if at all, would have been of little consequence in the teeth of the statutory prescriptions. The relaxation sought for, having not been granted, the petitioners commenced and continued the construction at their risk and peril. They cannot now turn round and contend that the revenue authorities led them to believe that a construction could be carried on in the assigned land and in that belief considerable monies were expended to commence and continue a construction.

(emphasis supplied)

17. Hence, there is no dearth of legal precedents of the Hon'ble Supreme Court and the jurisdictional High Court to trigger the Government into action to take back what is due to the people and to put it to public benefit. The Legislature too has brought in enactments to proceed for such recovery. What is required is the political will to proceed and the official vigor to implement. If either is dampened then it is the public interest that is compromised. Is it too much for the citizenry to expect the Government, who came to power with the simple pledge; that everything will be set right, to act, positively and effectively?

The writ petition is dismissed. Parties are left to suffer their respective costs.




Tuesday, September 4, 2018

Sannadka Community Paddy vs. State of Kerala [20.03.2017]

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.


Friday, June 29, 2012

Kerala HC in K. K. Sachidanandan vs. The District Collector [16.03.2011]

IN THE HIGH COURT OF KERALA AT ERNAKULAM 
WP(C).No. 3890 of 2011(S)

1. K.K.SACHIDANANDAN,                                                        ... Petitioner
Vs
1. THE DISTRICT COLLECTOR, COLLECTORATE,                     ... Respondent
2. THE REVENUE DIVISIONAL OFFICER,
3. ARIMPUR GRAMA PANCHAYAT,
4. THE NAMBOORKKAVU DEVASWOM,

For Petitioner:SRI.P.B.SAHASRANAMAN 
For Respondent:GOVERNMENT PLEADER

The Hon'ble the Chief Justice MR.J.CHELAMESWAR 
The Hon'ble MR. Justice ANTONY DOMINIC 

Dated: 16/03/2011

O R D E R

J.Chelameswar, C.J. & Antony Dominic, J. 

Dated this the 16th day of March, 2011 

JUDGMENT

J.Chelameswar, C.J.

The writ petition is filed with the prayers as follows: "i) To issue, a writ, direction or order in the nature of mandamus commanding the respondents 1 to 3 to take immediate measures to see that the pond in front of the temple of the 4th respondent at Veluthur Village in Arimbur Grama Panchayat is not reclaimed or trespassed, and to remove all trespassing and take all measures to maintain purity of the same, forthwith. ii) Such other reliefs which this Hon'ble Court deems fit and necessary in the circumstances of the case so as to protect the said pond referred to above and the costs of this case.

2. The facts are as follows: The petitioner is a resident of the Veluthur Village in Arimbur Grama Panchayat. It appears that there is a temple in the said village allegedly owned by the "Uranma Devaswom". It also appears that there is a pond in front of the said temple. The petitioner asserts that the pond is 'puramboke' as defined under the Kerala Land Conservancy Act, 1957. The petitioner also asserts that the 4th respondent Devaswom have decided to construct a marriage hall by reclaiming the above mentioned pond and took certain steps for the said purpose. Therefore, the instant writ petition is filed complaining that though the state of affairs is brought to the notice of the other respondents no action was taken by them.

3. Having regard to the nature of the complaint we called upon the learned Government Pleader to obtain instructions in the matter. The learned Government Pleader filed a report dated 14th February, 2011. According to the said report, the land in question on which the pond exists is not 'puramboke', but 'nilam' land owned by the 4th respondent Devaswom. It is also admitted in the said report that the 4th respondent was attempting to fill up the said pond as alleged by the petitioner, but the police stopped the said activity.

4. In view of the said report, the assertion of the petitioner that an attempt is being made by the 4th respondent to fill up an existing tank is sufficiently established.

5.The Supreme Court in the case of Jagpal Singh & Others v. State of Punjab & others (CDJ 2011 SC 93) at paragraphs 18 and 19 held as follows: "18. Over the last few decades, however, most of these ponds in our country have been filled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country.

19. Also, many ponds are auctioned off at throw away prices to businessmen for fisheries in collusion with authorities/Grama Panchayat officials, and even this money collected from these so called auctions are not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop. The Supreme Court while dealing with the complaint regarding the filling up of ponds in this country further directed at paragraph 22 as follows:

& quot; Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village."

6. However, the question whether the pond exists on a land which can be classified under the revenue laws of the State of Kerala either as 'puramboke' or as 'nilam' is a question which depends upon the existence of certain facts. Depending upon the true nature of the land and the classification made of the same in the revenue records the right of the 4th respondent to fill up the land and the conditions subject to which such right can be exercised also vary. Determination of all these questions, in our opinion, require evidence to be recorded and documents to be examined which exercise is not normally undertaken by this Court under Article 226 of the Constitution of India. Sections 91 and 92 of the Code of Civil Procedure expressly provides for adjudication of such disputes.

7. We therefore deem it appropriate to close the present writ petition reserving the liberty of the petitioner to move the competent civil court for appropriate relief. We also deem it appropriate to direct the respondents to maintain the status quo existing as on today with regard to the above mentioned pond for a period of two months. It will be open to the petitioner to seek such appropriate interim orders from the competent civil court as and when the suit such as the one referred to above is instituted.
 
J.Chelameswar,
Chief Justice

Antony Dominic,
Judge

Tuesday, June 26, 2012

Kerala HC in Thressamma Varkey vs Athirampuzha Grama Panchayath [16.03.2011]

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
----------------------------

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 Punjab 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.