M.T.Phalgunan vs The District Collector
2021 Latest Caselaw 10557 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

     MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943

                        WP(C).No.4047 OF 2012(E)


PETITIONER :

                M.T.PHALGUNAN,
                AGED 62 YEARS, S/O.THANKAPPAN, MARAYKARUPARAMBIL,
                THOPPIL, PURAKKAD, NOW RESIDING AT THOPIL(H),
                THOTTAPPALLY, P.O.AMBALAPUZHA, ALAPPUZHA DISTRICT,
                PIN - 688 563.

                BY ADVS.
                SRI.K.C.ELDHO
                SRI.JIJO THOMAS

RESPONDENTS :

      1         THE DISTRICT COLLECTOR,
                ALAPPUZHA, PIN - 688 001.

      2         THE DIRECTOR OF SOCIAL WELFARE,
                DIRECTORATE OF SOCIAL WELFARE, VIKAS BHAVAN,
                THIRUVANANTHAPURAM, PIN - 695 001.

      3         CHILD DEVELOPMENT PROJECT OFFICER,
                INTEGRATED CHILD DEVELOPMENT SCHEME AMBALAPUZHA
                PROJECT, ALAPPUZHA, PIN - 688 004.

      4         REVENUE DISTRICT OFFICER
                ALAPPUZHA, PIN - 688 001.

                BY SR.GOVERNMENT PLEADER SRI.MATHEW GEORGE VADAKKEL


     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD             ON
29.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :
 WP(C).No.4047 OF 2012(E)

                                   2


                             JUDGMENT

Dated this the 29th day of March 2021

In this writ petition, a direction is sought to take a decision

on Ext.P4 in a time bound manner and also to shift the Anganwadi

functioning in the property covered by Ext.P1.

2. Petitioner contends that he is the owner of 2 cents of

land in Survey No.275/6 of Purakkad village obtained as per Ext.P1

assignment deed. It is contended that a building for housing an

anganwadi was constructed by the Government in the property with

the permission of the petitioner even though petitioner had not

relinquished the property and the same continued to function in the

said building, but in 2011 when petitioner requested the respondents

to vacate the building, they turned a deaf ear to his request. A

representation was submitted by the petitioner to the respondents in

2011 requesting them to make arrangements to shift the anganwadi

from the premises. In spite of these requests, Ext.P4 has not been

considered and it was in such circumstances that this writ petition was

filed.

3. A counter affidavit has been filed by the 3 rd respondent

contending that the property was voluntarily surrendered by the WP(C).No.4047 OF 2012(E)

petitioner to the Government for construction of an anganwadi

building and that on the basis of the relinquishment letter and the

consent given by the petitioner, a proper building was constructed

utilising the Government funds and that the anganwadi started

functioning in the said building in 1997. It is reiterated that the

petitioner had relinquished the 2 cents of land to the Social Welfare

Department in the year 1993 for construction of the anganwadi

building. Counter affidavit further averred that the intention behind

the petitioner surrendering the land for constructing the anganwadi

building was to enable a transfer for petitioner's wife to a nearby place

and that in fact she was transferred to an anganwadi much closer to

her residence where she continued to work till 2011. According to

them, since the services of the petitioner's wife was not extended

beyond six months after retirement, petitioner became inimical to the

Department which resulted in this writ petition.

4. The facts narrated above clearly gives rise to a dispute

as to whether petitioner had relinquished his 2 cents of land over

which the Government had constructed the building for housing the

anganwadi. This Court cannot decide such a factual dispute in

exercise of the jurisdiction under Article 226 of the Constitution of

India. The remedy of the petitioner lies elsewhere. As a matter of WP(C).No.4047 OF 2012(E)

fact, the reliefs claimed for is also only for a direction to consider

Ext.P4.

5. The learned counsel for the petitioner invited my

attention to Ext.P4, which is a letter dated 22.11.2011 filed by the

petitioner before the respondents and pleaded for a direction to

consider the same. It is seen from the postal receipt and the

acknowledgment card produced as Exts.P5 and P6 that the said

representation had been received by the respondents.

In the circumstances of the case, I am of the view that

interest of justice will be served by directing the 2 nd respondent -

Director of Social Welfare to consider and pass appropriate orders, in

accordance with law, on Ext.P4, within a period of six months from the

date of receipt of a copy of this judgment. Needless to state, I have

not considered anything on the merits of the case and the same is left

to be considered in any appropriate proceedings which the petitioner

chooses to initiate.

The writ petition is allowed in part, as above.

Sd/-

BECHU KURIAN THOMAS, JUDGE

RKM WP(C).No.4047 OF 2012(E)

APPENDIX

PETITIONER'S EXHIBITS :

P1 : COPY OF THE PATTA NO.LA 217 OF 1985 ISSUED TO THE PETITIONER.

P2 : COPY OF THE REVOCATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

P3 : COPY OF THE ACKNOWLEDGMENT CARD SHOWING THE ACKNOWLEDGMENT OF EXT.P2.

P4 : COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 22.11.2011.

P5 : COPY OF THE POSTAL RECEIPT DATED 23.11.2011.

P6 : THE ACKNOWLEDGMENT CARD SHOWING THE RECEIPT OF EXT.P4 BY THE 1ST RESPONDENT.

P7 : THE ACKNOWLEDGMENT CARD SHOWING THE RECEIPT OF EXT.P4 BY THE 2ND RESPONDENT.

P8 : THE ACKNOWLEDGMENT CARD SHOWING THE RECEIPT OF EXT.P4 BY THE 4TH RESPONDENT.

P9 : COPY OF THE ORDER IN W.P.(C).NO.13019 OF 2011 OF THIS HON'BLE COURT.