WP(C) NO. 4535 OF 2013 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
WP(C) NO. 4535 OF 2013
PETITIONER/S:
M.L.EDWARD
S/O LEYONS, MATHIRAPPILLI HOUSE, VALLAM, EDAYAKUNNAM
S. CHITTOR KOCHI 27
BY ADV SRI.R.DIVAKARAN
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARTY TO THE STATE
OF EKRALA, SECRETARIAT, THIRUVANANTHAPURAM 695001
2 DIRECTOR OF PANCHAYATH
OFFICE OF THE DIRECTOR OF PANCHAYATH,
THIRUVANANTHAPURAM 695033
3 DISTRICT COLLECTOR
ERNAKULAM DISTRICT6 682030
4 CHERANELLOOR GRAMA PANCHAYATH
CHERANELLOOR SOUTH CHITTOR P.O, COCHIN 27, REPRESENTED
BY ITS SECRETARY 682027
5 THE EXECUTIVE ENGINEER
MINOR IRIGATION DEPARTMENT, CIVIL STATION, KAKKANAD,
ERNAKULAM DISTRICT 682030
WP(C) NO. 4535 OF 2013 2
6 TAHASILDAR
KANAYANNOOR TALUK, ERNAKULAM DISTRICT 682011
7 C.G.THOMAS
AGED 72 YEARS
S/O VARUTHUKUTTY, CHACKALAKKAL HOUSE, SOUTH CHITTOOR,
ERNAKULAM, KOCHI-17.
BY ADVS.
SRI.T.K.AJITHKUMAR VALATH
SRI.RAMESH .P
SRI.RENISH RAVEENDRAN
OTHER PRESENT:
SRI.JIBU.T.S, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 4535 OF 2013 3
P.V.KUNHIKRISHNAN, J
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W.P.(C) No.4535 of 2013
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Dated this the 27th day of July, 2022
JUDGMENT
The above writ petition is filed with following prayers : "(i) To issue a writ in the nature of mandamus or any other appropriate writ, order or direction to call for the records leading to Ext. P5.
(ii) To issue a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the 4 th respondent to measure the puramboke mundupalam thodu vested in the Panchayat as per the puramboke thodu register and remove the encroachment.
(iii) Issue such other appropriate relief, which is prayed by the petitioner during the course of hearing, and which this Hon'ble Court may deem fit to grant and
(iv) To award the cost of the proceedings." [SIC] WP(C) NO. 4535 OF 2013 4
2. The petitioner is the former ward member of Cheranelloor Grama Panchayath. The Mundupalam thodu passes through ward number 5 and 14 of the Cheranelloor Grama Panchayat and as per the puramboke thodu register, it have 2 kilometer length and 11.5 meter width. According to the petitioner, the thodu passes through Sy.Nos.484, 485, 486, 481/9 and 474 of Cheranelloor Village. It is the specific case of the petitioner that the width of the thodu was reduced due to the encroachment on both sides and some of them reclaimed the thodu and illegally constructed boundary wall and pathway. So the free flow of water through the thodu is affected and created water logging. It is the further case of the petitioner that Cheranelloor Panchayath has not taken any steps to remove the encroachment over the thodu and also not taken any steps to restore its original position. The petitioner submitted Exts.P1 and P5 representations and the same are also not considered by the authorities. It is submitted by the petitioners that the 4 th and 5th WP(C) NO. 4535 OF 2013 5 respondents are trying to construct permanent structures after reclaiming the puramboke thodu by violating the Kerala Panchayath Raj Act and Kerala Conservation of Paddy Land and Wetland Act. Hence, this writ petition.
3. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the 4th respondent- Panchayat. I also heard the learned Government Pleader.
4. The learned counsel for the petitioner reiterated his contentions. The counsel takes me through the photographs as evident by Exts.P15 to P22 to show that there is encroachment. The counsel also takes me through Exts.P8 to P11 photographs also. From the above photographs, it is seen that there is some encroachment to the thodu. According to the petitioner, it is an encroachment from the side of the Panchayath. But, the Panchayat disputes the same and submitted that the 5th respondent for the purpose of constructing a retaining wall, constructions were made and not even single pie is expended by WP(C) NO. 4535 OF 2013 6 the Panchayath for the construction of the retaining wall. The counsel also takes me through Exts.R4(a) to R4 (c) photographs.
5. After going through the pleadings and the contentions raised by the parties, I am of the view that this is a matter to be looked into by the 3rd respondent. If there is any encroachment to the thodu, it is the duty of the 3 rd respondent to pass appropriate orders to restore the thodu to its original position. For that purpose, the petitioner can be directed to file representation before the 3rd respondent narrating his grievance and the 3rd respondent will consider that representation with notice to the petitioner and the respondent Nos. 4 and 5. There can be a time limit for taking steps based on the representation.
Therefore, this writ petition is disposed of with the following directions :
1) The petitioner is free to submit a representation before the 3rd respondent narrating his grievance with adequate supporting documents before the 3rd respondent within four WP(C) NO. 4535 OF 2013 7 weeks from the date of receipt of a copy of this judgment.
2) Once such a representation is received, the 3rd respondent will consider the same and take appropriate steps and pass consequential orders, after giving an opportunity of hearing to the petitioner, respondent Nos. 4 and 5 and also other affected parties, if any.
3) The above exercise should be completed by the 3 rd respondent as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment.
SD/-
P.V.KUNHIKRISHNAN JUDGE SKS WP(C) NO. 4535 OF 2013 8 APPENDIX PETITIONER'S EXHIBITS:
EXT.P1 THE TRUE COPY OF THE REPRESENTATION DATED 15.7.2011 EXT.P2 THE TRUE COPY OF THE ORDER IN OP NO.1164/2011 EXT.P3 THE TRUE COPY OF THE INJUNCTION ORDER DATED 21.7.2011 EXT.P4 THE TRUE COPY OF THE ORDER DATED 29.1.2013 EXT.P5 THE TRUE COPY OF THE REPRESENTATION DATED 10.2.2013 .
EXT.P6 TRUE COPY OF THE NOTICE TO THE 4TH RESPONDENT ON 12.6.2012 EXT.P7 TRUE COPY OF THE PROCEEDINGS OF THE MEETING HELD BY THE DISTRICT COLLECTOR.
EXT.P8 TRUE COPY OF THE PHOTOGRAPHS OF THE RECLAIMING OF THE THODU PORTION EXT.P9 TRUE COPY OF THE PHOTOGRAPHS OF THE GRANITE STONE COLLECTED BY THE RESPONDENT ON THE SIDE OF THE THODU EXT.P10 TRUE COPY OF THE PHOTOGRAPHS OF THE GRANITE STONE COLLECTED BY THE RESPONDENT ON THE SIDE OF THE THODU WP(C) NO. 4535 OF 2013 9 EXT.P11 TRUE COPY OF THE RECLAIMING PORTION'S PHOTOGRAPHS EXT.P12 TRUE COPY OF THE JUDGMENT DATED 15.3.2013 IN WRIT APPEAL NO. 446/2013 EXT.P13 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE SI OF POLICE, CHERANELLOOR POLICE STATION DATED 27.3.2013 EXT.P14 TRUE COPY OF THE MANGALAM DAILY NEWSPAPER DATED 8.4.2013 EXT.P15 TRUE PHOTOGRAPH OF THE RECLAIMING PORTION EXT.P16 TRUE PHOTOGRAPH OF THE RECLAIMING PORTION EXT.P17 TRUE PHOTOGRAPH OF THE RECLAIMING PORTION EXT.P18 TRUE PHOTOGRAPH OF THE RECLAIMING PORTION EXT.P19 TRUE PHOTOGRAPH OF THE RECLAIMING PORTION EXT.P20 TRUE PHOTOGRAPH OF THE RECLAIMING PORTION EXT.P21 TRUE PHOTOGRAPH OF THE RECLAIMING PORTION EXT.P22 TRUE PHOTOGRAPH OF THE NOTICE PUBLISHED AND AFFIXED IN THE COMPOUND WALL TAKEN BY THE PETITIONER. EXT.P23 TRUE COPY OF THE FIR.
WP(C) NO. 4535 OF 2013 10
RESPONDENT'S EXHIBITS : EXT.R4(A) PHOTOGRAPH PRODUCED BY THE 4TH RESPONDENT EXT.R4(B) PHOTOGRAPH PRODUCED BY THE 4TH RESPONDENT EXT.R4(C) PHOTOGRAPH PRODUCED BY THE 4TH RESPONDENT EXT.R4(D) PHOTOGRAPH PRODUCED BY THE 4TH RESPONDENT