K.M.Yoosuf vs State Of Kerala
2021 Latest Caselaw 15706 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
        FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
                       WP(C) NO. 16124 OF 2013
PETITIONER:

           K.M.YOOSUF
           AGED 58 YEARS,
           S/O MOHAMMED
           CHICHAKANDAM HOUSE, KOTTYADI,
           MUNDOOR VILLAGE, PUTTUR TALUK, KARNATAKA.

           BY ADV SRI.S.MOHAMMED AL RAFI


RESPONDENTS:

    1      STATE OF KERALA
           REPRESENTED BY SECRETARY TO LOCAL SELF GOVERNMENT
           DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695 001

    2      MADHUR GRAMA PANCHAYATH
           REPRESENTED BY SECRETARY, KASARAGOD DISTRICT,
           KASARAGOD. 671 123.

           BY ADV SRI.A.J.VARGHESE
           SNR.GP.REKHA C NAIR



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
30.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.16124 OF 2013

                                            2


                                  JUDGMENT

Dated this the 30th day of July 2021

The petitioner has approached this Court

challenging Ext.P6 order issued by the 1st respondent.

Ext.P6 order requires the Secretary of the Madhur

Grama Panchayath, Kasaragod, to initiate action

against the petitioner and demolish a building

belonging to the petitioner, on the premise that it is

constructed in violation of rules and upon puramboke

land. It is the case of the petitioner that he had

purchased certain land in the possession and ownership

of one Hariraya Kamath vide Ext.P1 Sale Deed

No.2953/2009 of Kasaragod SRO. It is also his case

that there is no unauthorised construction and a small

shed put up by him on the land purchased from the

aforesaid Hariraya Kamath is being used by him for the

purpose of storing firewood and for keeping garden

implements. Earlier, through Ext.P4 dated 28.09.2010

Sri.Hariraya Kamath was proceeded against on the

premise that he had constructed the building in WP(C).No.16124 OF 2013

question in an illegal manner. The petitioner together

the aforesaid Hariraya Kamath approached the Tribunal

for Local Self Government Institutions,

Thiruvananthapuram, through Appeal No.1015/2010

which was allowed by Ext.P5 order 16.02.2011.

Paragraphs 8 and 9 of Ext.P5 order reads as follows:-

"I have gone through the contentions of the parties. It is the contention of the 2 nd Respondent that the construction was made by the Appellants encroaching upon a public pathway. But the impugned order is silent about the unauthorised constructions. The only direction upon the 1 st Appellant is that the building in Re-survey No.112/3 A has been constructed violating the Kerala Municipality Building Rules and the same has to be demolished within 15 days. What exactly is the construction, where exactly is the construction what are provisions of law violated etc are not made in the impugned order. Thus the impugned order is not a speaking order.

9. It is mandatory law that the statutory authorities should pass orders bearing on reasons. The present order is not reasoned at all. Hence on the basis of this order it could not have been possible for the Appellants to make compliance. Hence I have to say that the present order is unsustainable in law. The points are found so.

In the result, the Appeal is allowed. The impugned order is set aside. However, the Secretary may initiate fresh proper proceedings showing the correct details of violations if there are reasons for doing so without any delay."

2. The learned counsel for the petitioner would

submit that pursuant to Ext.P5 order, no further action WP(C).No.16124 OF 2013

was taken by any authority against him and that

suddenly Ext.P6 order was issued by the 1st

respondent, as above. He reiterates that Ext.P6 is

clearly in violation of principles of natural justice and

further that the findings therein are incorrect and

unsustainable in law.

3. I have heard the learned counsel for the

petitioner and the learned Government Pleader

appearing for the 1st respondent.

4. I am of the opinion that Ext.P6 order suffers

from the following defects:-

(i) It is issued in total violation of principles of

natural justice.

(ii) The order does not disclose the statutory

authority being exercised by the Government in

directing the eviction of the petitioner and the

demolition of the alleged unauthorised structures.

The earlier proceedings initiated by the

Panchayath have obviously ended with Ext.P5 order of WP(C).No.16124 OF 2013

the Tribunal for Local Self Government Institution

Thiruvananthapuram. Ext.P6 is therefore clearly

without jurisdiction. For the above reasons, I allow this

writ petition and quash Ext.P6 order issued by the 1 st

respondent. It is made clear that this judgment will not

stand in the way of the respondents taking action

against the petitioner in accordance with law, if it is

found that the petitioner in occupation of any

Government land.

Sd/-

GOPINATH P.

VPK JUDGE WP(C).No.16124 OF 2013

APPENDIX OF WP(C) 16124/2013

PETITIONER EXHIBITS

EXT.P1 - TRUE COPY OF THE SALE DEED DTD.30-4-2009 NO.2953/2009

EXT.P2 - TRUE COPY OF THE RECEIPT DTD.22-9-12 EVIDENCING THE PAYMENT OF LAND TAX

EXT.P3 - TRUE COPY OF THE POSSESSION CERTIFICATE DTD.12-7-2010 ISSUED BY THE VILLAGE OFFICER, MADHUR VILLAGE.

EXT.P4 - TRUE COPY OF THE ORDER NO.B1/4021/09. DTD.28-9-2010 ISSUED BY THE 2ND RESPONDENT.

EXT.P5 - TRUE COPY OF THE ORDER DTD.16-2-2011 IN APPEAL NO.1015/2010 ISSUED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS.

EXT.P6 - TRUE COPY OF THE ORDER NO.43329/RB/2/09/LSGD DTD.25-3- 13 ISSUED BY THE 1ST RESPONDENT.