Kumari Udayan vs State Of Kerala
2021 Latest Caselaw 2866 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                THE HONOURABLE MR. JUSTICE GOPINATH P.

    WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942

                      WP(C).No.23415 OF 2019(B)


PETITIONER:

               KUMARI UDAYAN,
               AGED 47 YEARS
               W/O LATE K.K.UDAYAN, KALAPPURACKAL HOUSE,
               NO.16/3446, MUNNAR GRAMA PANCHAYATH,
               MUNNAR, PIN-685 612.

               BY ADV. SHRI.TOM K.THOMAS

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY SECRETARY,
               REVENUE DEPARTMENT,
               GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM-695 001.

      2        THE DISTRICT COLLECTOR,
               IDUKKI DISTRICT, THODUPUZHA-685 584.

      3        THE SPECIAL TAHSILDAR,
               SPECIAL REVENUE OFFICE,
               MUNNAR-685 612.

      4        MUNNAR GRAMA PANCHAYATH,
               MUNNAR.P.O.IDUKKI-685 612,
               REPRESENTED BY ITS SECRETARY.

               R1-3 BY SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENERAL
               Y JAFARKHAN GP TO AAG
               ARUN THOMAS SC MUNNAR GRAMAPANCHAYATH

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD          ON
27.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.23415 OF 2019

                                         2


                                 JUDGMENT

Dated this the 27th day of January 2021

This writ petition is filed by the petitioner challenging

Ext.P13 order issued by the Munnar Special Tahasildar, by which

the petitioner has been directed to demolish and remove a shop

room constructed over a drainage canal in Munnar town. The

petitioner is the wife of the late K.K.Udayan. It appears that

there was a dispute between one Pappachan K.Elegical and late

K.K.Udayan, regarding the conduct of a bunk shop by

K.K.Udayan, allegedly in the property of the aforesaid

Pappachan K.Elegical. This dispute finally resulted in Ext.P1

order of the Government of Kerala in the Local Self Government

Department holding as under:

"It is seen that the dispute regarding the bunk shop is in existence for the last so many years. It seems that the long-pending dispute can be settled without any grievance to both the parties. As it is only a bunk shop which can be removed at any time to another place, the assignment of PWD puramboke land in his favour need not be of much relevance. As the bunk shop is movable, it should be removed form the present dispute place to another convenient place in the PWD puramboke in the locality. The extent convenient place will be decided by the Munnar Grama Panchayath. The place so decided will be in the town, should not be less in importance and may not affect adversely the business conducted in the bunk shop. As it is not like other permanent constructions, the Secretary, Munnar Grama Panachayath is directed to give WP(C).No.23415 OF 2019

permission to the bunk shop owner by Shir.Udayan, without demolishing it. Thus the Order No.PW/430/96 dated 8-7-99 of the Secretary, Munnar Grama Panchayath is cancelled. The petition submitted by the fourth respondent Shri.K.K.Udayan and Exts.P6 & P8 objections filed by the petitioner in the OP.

Shri.Pappachan K.Elegical are thus disposed of and the direction in the judgment dated 18-3-99 of the Hon'ble High Court in O.P.No.21334 of 1999-M is complied with."

2. Thereafter, through Ext.P2 judgment in

O.P.No.7311/2000, this Court had directed the Executive

Engineer, PWD Roads, Major Sub Division, to implement Ext.P3

order dated 26.04.2000, by which late K.K.Udayan was allowed

to be put up a bunk shop above the public drainage, after

constructing pillars without causing hindrance to the flow of

water or to traffic, and without causing any public nuisance.

3. The learned counsel for the petitioner submits that,

following the permission granted in Ext.P3, late K.K.Udayan, put

up a bunk shop and was running the same. On 05.01.2011, he

was issued with Ext.P5 notice by the Revenue Department

requiring him to remove the bunk shop. Late.K.K.Udayan, again

approached this Court vide W.P.(C).No.691/2011. Pending that

writ petition K.K.Udayan died and his wife and two children

were impleaded as additional petitioners 2 to 4. This Court WP(C).No.23415 OF 2019

found in the judgment dated 21.05.2018 in W.P.

(C).No.691/2011 that Ext.P5 had been issued in violation of the

audi alteram partem rule and further that considering the earlier

permissible occupation of the petitioner, a fresh decision has to

be taken by the authorities concerned. Exts.P7 and P8 are the

two reports filed by the Secretary of Munnar Grama Panchayath,

before the District Collector regarding the nature of the

construction and the extent of area of the shop room

constructed by Late K.K.Udayan, over the public drainage as

above. It is seen from Exts.P7 and P8 that the area in question

is reported to be 32 sq.ms. The Special Tahasildar, Munnar,

thereafter issued Ext.P10 order directing as under:

"ഈ സസാഹചരര്യതത്തി ല്‍ തസാഴഴെപ്പറയുന്ന രരീ ത ത്തി യ ത്തി ല്‍ ബങങ്ക് പുനര്‍നത്തി ര്‍ മത്തി ക്കു ന്നതത്തി ന ങ്ക് / മസാററ വരുത്തുന്നതത്തി ന ങ്ക് ഉതരവസാകുന.

1. ബങങ്ക് സസാപത്തി ച്ച സലഴത നരീ ഴ രസാഴുകത്തി ന ങ്ക് തടസ്സമസായത്തി സസാപത്തി ച്ച ത്തി ട്ടു ള തൂണുകള്‍ നരീ ക റ ഴചയ്യണറ. നരീ ര്‍ ച്ചസാലത്തി ന ങ്ക് മുകളത്തി ലൂ ഴട ഴറയത്തി ലു കള്‍ സസാപത്തി ച്ച ങ്ക് നരീ ഴ രസാഴുകത്തി ന ങ്ക് തടസ്സമസാകസാത വത്തി ധ റ ബങങ്ക് പുനക്രമരീ ക രത്തി ക ണറ. ഗതസാഗതതത്തി ന ങ്ക് തടസ്സമുണസാക്കുന്ന വത്തി ധ തത്തി ല്‍ ബങത്തി നു മുന്‍വശറ വസാഹനങ്ങള്‍ പസാടത്തി ല . നനസാ പസാര്‍കത്തി റ ഗങ്ക് നബസാര്‍ഡങ്ക് സസാപത്തി ക ണറ.

2. ബങത്തി ഴ ന്റെ മുന്‍വശറ വസാതത്തി ല്‍ നറസാഡത്തി ന ലകങ്ക് തുറന വയസാഴത നറസാളത്തി റ ഗങ്ക് നമസാഡല്‍ ഷട്ടര്‍ സസാപത്തി ക ണറ.

3. നത്തി ല വത്തി ഴ ല സത്തി ത ത്തി യ ത്തി ല്‍ നത്തി ന റ തറവത്തി സ രീ ര്‍ ണ്ണതത്തി ല്‍ യസാഴതസാരുമസാറവറ വരുത്തുവസാന്‍ പസാടത്തി ല സാതതസാണങ്ക് .

4. ഈ ഉതരവ കകപ്പറത്തി രണ്ടു മസാസതത്തി ന കറ ബങങ്ക് പുനക്രമരീ ക രത്തി ക സാതപകറ ഉതരവങ്ക് സസ്വ യ നമ റദസാകുന്നതുറ ബങങ്ക് അടത്തി യ നത്തി ര മസായത്തി WP(C).No.23415 OF 2019

ഴപസാളത്തി ച്ചു നരീ ന കണതുമസാകുന.

5. ബങങ്ക് പുനര്‍നത്തി ര്‍ മത്തി ച്ച നശഷറ പഞസായതത്തി ഴ ന്റെ കലസന്‍സങ്ക് എടുനകണതുറ യഥസാകസാലറ കലസന്‍സുകള്‍ പുതുനകണതുമസാകുന. "

4. The petitioner was thereafter again served with a

notice by the Special Tahasildar, Munnar (Ext.P11 dated

03.08.2019), mainly on the allegation that the conditions

imposed in Ext.P10 have been violated. An objection was filed

by the petitioner as Ext.P12. By Ext.P13, the objection has been

adjudicated and the petitioner has been directed to demolish

the shop in question principally on the ground that the

late.K.K.Udayan had originally been given permission to

establish a bunk shop alone, but he had established a fairly

large shop room over the "Thodu", and had violated the

stipulations in earlier Government orders etc., regarding the

conditions upon which late K.K.Udayan, was permitted to put up

a shop.

5. It is submitted that even in Ext.P1 proceedings, it

was stipulated that permission is being granted only upon the

premise that the bunk shop is one which can be easily shifted, if WP(C).No.23415 OF 2019

necessary at a later stage, and that this was purely a temporary

permission, and the petitioner cannot claim any right on the

basis of the same. It is also pointed out that the bunk shop is

situated over a public drainage and the same should be

removed from there, as the flood which ravaged the Munnar

town in 2018 has shown that no sort of construction should be

permitted over any public drainage.

6. It is also contended on behalf of the respondents that

the shop room in question is now being run as a textile shop by

a third person and not by the petitioner.

7. The learned counsel for the petitioner however

contended that, the petitioner had not violated any condition of

the permission granted to the petitioner, either vide Ext.P3 or by

Ext.P10. He would submit that the width of the public drainage

over which the petitioner was allowed to put up the shop room

is about 15 feet and when the shop room was put up without

causing hindrance to the flow of water the entire width of the

public drainage had to be covered and it is not any permanent

construction as is sought to be contended on behalf of the WP(C).No.23415 OF 2019

respondents. Both sides rely on photographs to establish their

contentions.

8. The learned Government pleader places reliance on

the judgment of the Hon'ble Supreme Court in Sarevepalli

Ramaiah (Died) as per LRs and Others v. District Collector, Chittoor

District and Others [2019 (4) SCC 500] and a judgment of a

Division Bench of this Court in W.A.No.1571/2020, to contend

that persons like the petitioner have no right to claim that they

are entitled to occupy Government land/thodu puramboke, and

that any permission granted cannot be taken to be a permission

forever, and that the Government is within its powers to revoke

such permission at any point of time.

9. The petitioner is clearly in occupation of the area only

on the basis of the permission granted to her husband late

K.K.Udayan, by the authorities concerned earlier (Ext.P3 and

Ext.P10). The petitioner cannot as a matter of right contend

that, she must be permitted to continue in occupation. As and

when the competent authority directs that the occupation

should cease the petitioner is bound to follow such direction. WP(C).No.23415 OF 2019

The petitioner cannot on the basis of Exts.P3 and P10 contend

that, she must be given a right to occupy the area in question

forever.

9. I notice from Ext.P13 that, the reasons for taking the

decision to direct the petitioner to demolish the shop room in

question is valid and calls for no interference. The authorities

have taken into consideration all relevant aspects while issuing

Ext.P13. Therefore, Ext.P13 calls for no interference at the

hands of this Court.

10. However, from the facts of the present case, I notice

that the late husband of the petitioner was eking out a living by

running a bunk shop selling tea powder, at the time when

Ext.P1 order was issued by the Government. Even in Ext.P1, it

is stated that the late husband of the petitioner was running the

bunk shop for quite a large number of years, though it is not

specified as to when exactly the bunk shop in question was put

up by the late husband of the petitioner. It is at the instance of

a private land owner that the petitioner's bunk shop was

directed to be shifted to a convenient location. Ext.P3 is the WP(C).No.23415 OF 2019

letter from the Executive Engineer of the PWD Roads Division,

permitting the petitioner to put up a bunk shop over the public

drainage. The respondents have no case that the petitioner or

her late husband had put up any construction in an area not

permitted under Ext.P3.

11. The learned counsel for the petitioner also submits

that late K.K.Udayan had committed suicide leaving behind his

wife (the petitioner) and two minor daughters, and the shop in

question was therefore being run by the petitioner's nephew,

and that all the licenses and permissions are still in the name of

the petitioner. He also submits that the income from the shop

rooms is the only source of livelihood of the petitioner and her

two daughters.

12. Taking note of all the above facts and circumstances,

I am of the opinion that the District Collector, Idukki must

consider:-

(i) whether the petitioner can be allowed to

continue at the same location subject to any

condition that he or she may impose.

WP(C).No.23415 OF 2019

(ii) If such permission cannot be granted to the

continue the same location, whether a suitable

convenient location can be provided to the

petitioner to put up a bunk shop. It is open to the

District Collector, Idukki, to specify the size and

nature of bunk shop, if permission is being

granted to the petitioner to put up the bunk shop

in any other area.

Till such time a decision is taken by the District Collector

as above, status quo, as on today shall be maintained.

This writ petition is disposed of as above.

Sd/-

GOPINATH P.

VPK JUDGE WP(C).No.23415 OF 2019

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ORDER NO GO(RT) 3341/1999/LSGD DATED 5.11.1999

EXHIBIT P1A THE LEGIBLE COPY OF EXT.P1 ORDER NO GO(RT) 3341/1999/LSGD DATED 5.11.1999

EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 9.6.2010 IN OP NO 7311 OF 2000

EXHIBIT P3 TRUE COPY OF THE REPORT DATED 26.4.2000 OF THE EXECUTIVE ENGINEER, PWD.

EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS DATED 27.6.2000 OF THE MUNNAR GRAMA PANCHAYATH

EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 5.1.2011 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONERS HUSBAND

EXHIBIT P6 TRUE COPY OF JUDGMENT IN WPC NO 691 OF 2011 DATED 21.5.2018

EXHIBIT P7 TRUE COPY OF THE REPORT DATED 4.12.2017 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 2ND RESPONDENT

EXHIBIT P8 TRUE COPY OF THE REPORT DATED 13.12.2017 SUBMITTED BY THE 4TH RESPONDENT

EXHIBIT P9 TRUE COPY OF THE REPLY TO THE 3RD RESPONDENT IN EXT P5 NOTICE.

EXHIBIT P10 TRUE COPY OF THE ORDER DATED 18.8.2018 OF THE 3RD RESPONDENT

EXHIBIT P10A TRUE COPY OF THE D & O LICENCE DATED 7.5.2019 ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT

EXHIBIT P11 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 3.8.2019

EXHIBIT P12 TRUE COPY OF THE REPLY DATED 9.8.2019 SUBMITTED BY THE PETITIONER

EXHIBIT P13 TRUE COPY OF THE ORDER NO A2-1/2011 DATED 22.8.2019 OF THE 3RD RESPONDENT WP(C).No.23415 OF 2019

EXHIBIT P14 PHOTOGRAPHS.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R3 A A TRUE COPY OF A PHOTOGRAPH OF THE SAMPLE BUNK SHOP.