IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
ST
FRIDAY, THE 1 DAY OF JULY 2022 / 10TH ASHADHA, 1944
WP(C) NO. 3606 OF 2016
PETITIONER:
MERLIN XAVIER, S/O.M.XAVIER (LATE), NADUVATH VILAI, KARAKKAMANDAPAM,
NAMOM P.O., THIRUVANANTHAPURAM, REPRESENTED BY HIS POWER OF ATTORNEY
HOLER FRANKLIN XAVIER, S/O.M.XAVIER (LATE) T.C.54/654, SABITHA NIVAS,
NADUVATH VILAI, KARAKKAMANDAPAM, NAMOM P.O., THIRUVANANTHAPURAM.
BY ADVS.SRI.D.KISHORE
SMT.MINI GOPINATH
SMT.MEERA GOPINATH
SRI.R.MURALEEKRISHNAN MALAKKARA
RESPONDENTS:
1 THE AZHOOR GRAMA PANCHAYAT
REPRESENTED BY SECRETARY, PERUNGUZHI P.O., THIRUVANANTHAPURAM,
CHIRAYINKEEZHU, THIRUVANANTHAPURAM, PIN- 695 305.
THE SECRETARY, AZHOOR GRAMA PANCHAYAT, PERUNGUZHI P O,
2
THIRUVANANTHAPURAM, CHIRAYINKEEZHU, THIRUVANANTHAPURAM, PIN 695 305.
BY ADV SRI.BIJU BALAKRISHNAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.07.2022, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 3606 OF 2016
:: 2 ::
JUDGMENT
Dated this the 1st day of July 2022 This writ petition is filed by the petitioner seeking the following reliefs:
"a. issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents not to encroach into the property of the petitioner covered by Exhibits P1 and P2 or to develop/use any portion of it as a pathway, otherwise than through procedure established by law, as per the mandate of Article 300A of the Constitution of India.
b. issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents not to conduct any further operations/development in the property of the petitioner covered by Exhibits P1 and P2 for a period of two months so as to enable the petitioner to comply with the mandate of Section 249 of the Kerala Panchayat Raj Act and to institute a civil suit before a competent court."
2. The contentions advanced by the petitioner are as follows:
The petitioner is the title holder of 22 Ares and 60 square metres of property in Re-Survey Number 222/5-1 of Azhoor village of Chirayinyinkil Taluk of Thiruvananthapuram District by virtue of Deed No:2227 of 2008 of Murukkumpuzha Sub Registrar's Office. It is submitted that the petitioner is residing abroad. There is a pathway having a width of two links on the southern side of the petitioner's property. The case of the WP(C) NO. 3606 OF 2016 :: 3 ::
petitioner is that for widening the pathway, without resorting to any procedure established by law, the Panchayat through a contractor encroached into the property of the petitioner and has annexed a portion of it to the pathway. The Panchayat is now attempting to develop the road by tarring. There are no provisions in the Kerala Panchayat Raj Act or in any other statute enabling the Panchayat or its officers to encroach into the property of the third parties. According to the petitioner, since the petitioner has not consented for surrendering his property, the only option available to the Panchayat was to acquire the property as per the provisions of the Land Acquisition Act. It is also submitted that as per Section 249 of the Kerala Panchayat Raj Act, the petitioner can very well file a suit against the Panchayat for recovery of possession of the property and for declaration. However, as per Section 249(1)(a) of the Kerala Panchayat Raj Act, one month notice in writing will have to be given to the Panchayat before institution of a suit or other civil proceedings against the Panchayat.
3. When the matter came up for admission before this court, an interim order was passed on 29.1.2016 directing the Azhoor Grama Panchayat and the Secretary - respondents 1 and 2 not to encroach upon WP(C) NO. 3606 OF 2016 :: 4 ::
the property of the petitioner for tarring or for the formation of the pathway situated adjacent to the property of the petitioner. The respondents have not filed any counter affidavit or statement before this court.
4. In my considered opinion, the Panchayat or the Secretary of the Grama Panchayat is not vested with any powers to forcibly enter into a private property, take possession of the same and form a pathway or widen a path way. Be that as it may, petitioner has not produced any documents before this court to show that the Panchayat has attempted to encroach into the property of the petitioner. There is no power to the Panchayat to take law into hands and do things at its whims and fancies. If the Panchayat wants to form or widen a road, it has to acquire property in accordance with the mandates contained under the Kerala Panchayat Raj Act, 1994 and the Rules constituted for disposal and acquisition of properties. Since the sole apprehension pointed out by the petitioner in this writ petition is forcible incursion to his property, I am of the view that the writ petition can be disposed of by retaining the interim order passed by this court on 29.1.2016.
WP(C) NO. 3606 OF 2016 :: 5 ::
5. Accordingly, after hearing learned counsel for the petitioner Sri.D.Kishore, and Sri.Ajmal, learned counsel representing Sri.Biju Balakrishnan, learned counsel appearing for respondents 1 and 2, this writ petition is disposed of retaining the interim order passed by this court as above and directing the Panchayat not to annex the property of the petitioner without adhering to the provisions of law existing for acquisition. However, I make it clear that if the Panchayat has any case that any public property is involved in the property in question, it is for the Panchayat to take appropriate action in accordance with law.
Writ petition is disposed of accordingly.
SD/-
SHAJI P. CHALY JUDGE jes WP(C) NO. 3606 OF 2016 :: 6 ::
APPENDIX PETITIONER'S EXHIBITS:
EXT P1 TRUE COPY OF THE SALE DEED NO.2227/2008 DATED 03/10/2008. EXT P2 TRUE COPY OF THE TAX RECEIPT DATED 07/10/2015. EXT P3 TRUE COPIES OF THE PHOTOGRAPHS EVIDENCING THE ENCORACHMENT ON THE PETITIONER'S PROPERTY BY THE RESPONDENT PANCHAYAT.
// TRUE COPY // P.S. TO JUDGE