Ramachandran Nair vs Nedumkandam Grama Panchayat
2021 Latest Caselaw 23297 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                  THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

      THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943

                             WP(C) NO. 35120 OF 2017

PETITIONER:

      RAMACHANDRAN NAIR, AGED 66 YEARS, AGED 66 YEARS, S/O. KESAVAN NAIR,
      BLOCK NO.25, NEDUMKANDOM DESOM, PALATHODU VILLAGE, IDUKKI DISTRICT.

      BY ADV SRI.RAJIT



RESPONDENTS:

  1   NEDUMKANDAM GRAMA PANCHAYAT, IDUKKI DISTRICT,
      REPRESENTED BY THE SECRETARY - 696 301.

  2   THE SECRETARY, NEDUMKANDAM GRAMA PANCHAYAT,
      IDUKKI DISTRICT - 696 301.

  3   KERALA STATE HUMAN RIGHTS COMMISSION TURBO PLUS TOWERS
      PMG JUNCTION, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM - 695 033.

  4   TAHSILDAR, UDUMBUMCHOLA TALUK, IDUKKI DISTRICT - 696 331.

  5   HEAD SURVEYOR, UDUMBUMCHOLA TALUK, IDUKKI DISTRICT - 696 331.

  6   P.C SOMAN, AGED 60 YEARS, S/O. CHELLAPPAN, PEZHATHOLIL HOUSE,
      NEDUMKANDAM DESOM, PARATHODU VILLAGE, IDUKKI DISTRICT- 696 301.

      BY ADVS.V.H.JASMINE, SC
      KALEESWARAM RAJ
      THULASI K. RAJ
      SRI.JACOB E SIMON, SR.G.P.

      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.11.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 35120 OF 2017
                                           :: 2 ::




                                        JUDGMENT

Dated this the 25th day of November 2021

This writ petition is filed by the petitioner seeking following reliefs:

a) issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P2 issued by the 2 nd respondent.

b) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 2nd respondent to independently consider the complaint of the 6 th respondent, without reference to the order passed by the 3rd respondent, after affording an opportunity of hearing to the petitioner and the 6th respondent and after taking into consideration Ext.P3 report filed by the 5th respondent.

c) declare that the order passed by the 3 rd respondent without notice to the petitioner is not legally valid and violates the principles of natural justice.

2. The grievance of the petitioner is that Ext.P2 order dated 28.10.2017

is passed by the Secretary of the Nedumkandam Grama Panchayat directing

the petitioner to remove unauthorised construction carried out on a stream.

According to the petitioner, the property through which the stream is

passing is absolutely belonging to the petitioner and therefore, the Secretary

of the Grama Panchayat has no power to issue such a notice to the

petitioner. That apart, it is contended that the petitioner was not provided

with sufficient opportunity of hearing and participation before passing of

Ext.P2 order directing the petitioner to remove the alleged constructions WP(C) NO. 35120 OF 2017 :: 3 ::

put up by the side of the stream. It is thus, challenging the legality and

correctness of Ext.P2, this writ petition is filed.

3. The 6th respondent has filed a detailed counter affidavit refuting the

allegations made by the petitioner in the writ petition wherein among other

contentions it is stated that the petitioner has obstructed a flowing stream

causing serious prejudice to others including the 6 th respondent. It is also

contended that the water body in question is a public water source and

therefore, the petitioner is not entitled to put up any constructions on the

water body or by the side of it. The 6 th respondent has produced various

photographs in order to demonstrate the contentions raised therein with

respect to the constructions put up by the petitioner. The 6th respondent has

also submitted that the writ petition is filed by the petitioner suppressing

material facts and not producing appropriate and relevant documents in

order to decide the issue.

4. We have heard Sri.Rajith, learned counsel appearing for the

petitioner also Smt.V.H.Jasmin, learned Standing Counsel appearing for the

Nedumkandam Grama Panchayat, Sri.Jacob E.Simon, learned Senior

Government Pleader appearing for respondents 3 to 5 and Sri.Kaleeswaram

Raj, learned counsel appearing for the 6 th respondent and perused the

pleadings and materials on record.

WP(C) NO. 35120 OF 2017 :: 4 ::

5. The contentions advanced by the petitioner and the 6 th respondent

would make it clear that various factual circumstances are involved in order

to trace out the actual issue to arrive at a conclusion. Writ court is not

expected to adjudicate such complex situations in a proceeding under

Article 226 of the Constitution of India. Anyhow, petitioner has a contention

that Ext.P2 order was passed without providing adequate opportunity of

hearing to the petitioner.

6. On a perusal of Ext.P2 impugned order, it is clear that the Secretary

has stated that a show cause notice was issued to the petitioner and the

petitioner has not responded to the same, which compelled the Secretary to

pass Ext.P2 impugned order. True, it is stated in Ext.P2 order that it is

passed by virtue of the powers vested with the Secretary as per Section 218

(1) and (2) of Kerala Panchayat Raj Act 1994. In that view of the matter, after

hearing respective counsel, I am of the view that an opportunity can be

provided to the petitioner to contest the proceedings.

7. With the above, writ petition is disposed of directing the Secretary

of the Grama Panchayat to issue a fresh notice to the petitioner exactly

showing the alleged unauthorised constructions put up in the stream in

question within a month from the date of receipt of a copy of this judgment,

receive suitable objections from the petitioner and any representation from WP(C) NO. 35120 OF 2017 :: 5 ::

the 6th respondent and finalise the proceedings within two months

thereafter, after providing an opportunity of hearing to both parties.

However, I make it clear that if in any manner the proceedings pertaining to

Ext.P2 is complete, under no circumstances the proceedings shall be

reopened by the Secretary.

Writ petition is disposed of.

SD/-

SHAJI P. CHALY JUDGE jes WP(C) NO. 35120 OF 2017 :: 6 ::

APPENDIX

PETITIONER'S EXHIBIT:

EXHIBIT P1 TRUE COPY OF THE JUDGMENT DTD. 4.1.2016 IN CRL.M.C NO.2366/2015. EXHIBIT P2 TRUE COPY OF THE ORDER DTD.28.10.2017 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P3 TRUE COPY OF THE REPORT SUBMITTED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT DTD. 5.12.2014.

RESPONDENTS' EXHIBITS

EXHIBIT R6(a) TRUE COPY OF THE PHOTOGRAPHS SHOWING THE CEMENT PIPE INSTALLED BY THE PETITIONER EXHIBIT R6(b) TRUE COPY OF THE REQUEST DATED 26.9.2014 SUBMITTED BY THE 6TH RESPONDENT.

EXHIBIT R6(c) TRUE COPY OF THE REQUEST DATED 26.9.2014 BEFORE THE TAHSILDAR. EXHIBIT R6(d) TRUE COPY OF THE LETTER DATED 4.10.2014. EXHIBIT R6(e) TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER, PARATHODE DATED 30.9.2014.

EXHIBIT R6(f) TRUE COPY OF THE LETTER DATED 13.10.2014. EXHIBIT R6(g) TRUE COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER DATED 13.10.2014 TO THE SECRETARY, NEDUMKANDOM GRAMA PANCHAYAT. EXHIBIT R6(h) TRUE COPY OF THE REQUEST DATED 3.2.2015 SUBMITTED BY THE 6TH RESPONDENT.

EXHIBIT R6(i) TRUE COPY OF THE LETTER IN MARCH 2015 FROM THE PUBLIC INFORMATION OFFICER ISSUED TO THE 6TH RESPONDENT SHOWING THE RELEVANT PART OF THE MINUTES OF THE TALUK SABHA.

EXHIBIT R6(j) TRUE COPY OF THE NOTICE DATED 3.9.2015. EXHIBIT R6(k) TRUE COPY OF THE PROCEEDINGS DATED 30.4.2016 OF THE RDO, DEVIKULAM. EXHIBIT R6(l) TRUE COPY OF THE LETTER DATED 16.4.2015. EXHIBIT R6(m) TRUE COPY OF THE LETTER DATED 30.3.2017. EXHIBIT R6(n) TRUE COPY OF THE ORDER DATED 30.5.2017. EXHIBIT R6(o) TRUE COPY OF THE ORDER DATED 30.6.2017. EXHIBIT R6(p) TRUE COPY OF THE LETTER ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER TO THE REGISTRAR, HUMAN RIGHTS COMMISSION DATED 9.11.2017.

//TRUE COPY // P.S. TO JUDGE