Rajan Thomas vs Kanjirappally Grama Panchayat
2021 Latest Caselaw 20416 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
  FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943
                    WP(C) NO. 16067 OF 2020
PETITIONER:

         RAJAN THOMAS
         AGED 60 YEARS
         S/O. THOMAS, MALIYEKKAL HOUSE, KAPPAD P. O.,
         PUNNACHODE VIA, KNJIRAPPALLY.

         BY ADV GEORGE ABRAHAM


RESPONDENTS:

    1    KANJIRAPPALLY GRAMA PANCHAYAT
         REPRESENTED BY ITS SECRETARY,
         KANJIRAPPALLY P. O.,
         KOTTAYAM DISTRICT - 686 507.

    2    SECRETARY
         KANJIRAPPALLY GRAMA PANCHAYAT
         KANJIRAPPALLY P. O.,
         KOTTAYAM DISTRICT - 686 507.

    3    PRESIDENT
         KANJIRAPPALLY GRAMA PANCHAYAT
         KANJIRAPPALLY P. O.,
         KOTTAYAM DISTRICT - 686 507.

    4    TAHSILDAR
         TALUK OFFICE, KANJIRAPPALLY TALUK,
         KOTTAYAM DISTRICT.

    5    RAJU GEORGE
         THEKKUMTHOTTAM HOUSE, VANCHIMALA P. O.,
         KALAKKETTY, THAMBALAKKAD, VIA KANJIRAPPALLY,
         KOTTAYAM DISTRICT - 686 508.

    6    R. RAJU
         KADAKAYAM HOUSE, THAMBALAKKAD P. O., VIA
         KANJIRAPPALLY, KOTTAYAM DISTRICT - 686 506.
 WP(C) No.16067/2020
                            :2 :


     7     MANI RAJU
           MEMBER, WARD NO.III, KANJIRAPPALLY GRAMA
           PANCHAYAT, KAPPAD P. O., KANJIRAPPALLY VIA,
           KOTTAYAM.

           BY ADVS.
           SRI.V.K.SUNIL
           SRI.ABRAHAM GEORGE JACOB
           SRI.C.MURALIKRISHNAN (PAYYANUR)
           SRI.SYAMANTHAK B.S, GOVT. PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP           FOR
ADMISSION ON 01.10.2021, THE COURT ON THE SAME           DAY
DELIVERED THE FOLLOWING:
 WP(C) No.16067/2020
                                :3 :




                        JUDGMENT

~~~~~~~~~

Dated this the 1st day of October, 2021

Petitioner has filed this writ petition seeking to

quash Exts.P7, P13 and P15 orders issued by respondents 1

and 2 and to desist respondents 1 to 3 from taking any action

based on Exts.P13 and P15 against the petitioner. The

petitioner further seeks to declare that the private pathway

owned by the petitioner covered by Ext.P3 judgment is not a

public pathway.

2. To put it in a nutshell, the dispute arising in this writ

petition is whether a road passing through 40 Acres of

property owned by the petitioner and members of his larger

family, is a public road vested with the Panchayat or not.

Ext.P7 notice issued by the Panchayat indicates that the

petitioner has obstructed the said road claiming it to be his WP(C) No.16067/2020

private road and the petitioner has been directed by the

Grama Panchayat to remove the obstructions immediately. By

Ext.P7, the petitioner was cautioned that unless the petitioner

himself removes the obstruction, the Panchayat will be taking

steps to do the same.

3. The petitioner approached this Court aggrieved by

the action taken by the Panchayat filing W.P.(C)

No.11721/2020. In the said writ petition, this Court gave the

following directions:

"(i) The 2nd respondent, Secretary of the Kanjirappally Grama panchayat will immediately take up for consideration the matters raised in Ext.P11 and should ensure that an inspection is conducted by an authorised officer of the Panchayat, with due prior notice to the petitioner to ascertain the correctness or otherwise of the matters raised in Exts.P7 and P11, and copy of the inspection report is given to the petitioner in advance, and the inspection process will be duly completed within ten days from the date of production of a certified copy of this judgment. Thereafter, the 2nd respondent, Secretary of the Grama Panchayat should afford reasonable opportunity of being heard to the petitioner, through his authorised representative, counsel, if any, and then should take a considered decision on the matters raised in Ext.P11 on the request of the petitioner to revoke Ext.P7, without much delay, preferably within a period of two weeks from the date of receipt of the inspection report as aforesaid.

WP(C) No.16067/2020

(ii) Until orders are passed by the 2nd respondent, Secretary of the Kanjirappally Grama Panchayat on Ext.P11, further coercive steps in pursuance of Ext.P7 dated 03.06.2020, shall be kept in abeyance.

(iii) The petitioner will produce certified copy of this judgment along with copy of the memorandum in the writ petition with all the exhibits before the 2nd respondent, Secretary of the Kanjirappally Grama Panchayat, for necessary information and further action."

4. Based on the directions of this Court, a Sub

Committee of the Panchayat submitted Ext.P13 report wherein

it has been stated that the road in question is of 1.622 metres

long and it is included in the Asset Register. Based on the

report, the Panchayat authorities issued Ext.P15 notice to the

petitioner stating that the road passing through the 40 Acres of

property belongs to and is owned by the Panchayat and that

the claim of the petitioner that it is a private road is

unsustainable. The petitioner challenges Exts.P7, P13 and

P15.

5. The learned Standing Counsel for the Panchayat

submitted that this road is a public road and is entered in the

road register maintained by the Panchayat. Considerable WP(C) No.16067/2020

amount has been expended for maintaining this road. The

road is used by the general public. The attempt of the

petitioner is to appropriate a public road for his personal

benefit.

6. Respondents 5 and 6 also entered appearance and

opposed the writ petition filing counter affidavit. Respondents

5 and 6 also stated that this is a public road entered in the

Asset Register of the Panchayat and is maintained by the

Panchayat. This road is used by general public. The

petitioner is trying to appropriate this public road as his private

property which cannot be permitted. As the road is an asset

of the Panchayat finding a place in the Asset Register of the

Panchayat, the petitioner cannot be permitted to block the

public road.

7. Heard the learned counsel for the petitioner, the

learned counsel for respondents 1 to 3, the learned

Government Pleader representing the 4 th respondent and the

learned counsel appearing for respondents 5 and 6. WP(C) No.16067/2020

8. From the pleadings in the writ petition and the

arguments raised by the parties to the writ petition, it emerges

that the dispute relates to the ownership of the disputed road.

At Serial No.21 in Ext.P10, which is Asset Register of the

Kanjirappally Grama Panchayat, one road named

'Mattathippara-Ambayil-Erikkad road' is entered. It is the case

of the petitioner that this is another road existing even now.

But, according to the Panchayat as well as the contesting

respondents, this Mattathippara-Ambayil-Erikkad road is the

road in question which passes through the property of the

petitioner. The resolution of the dispute can be arrived at if

the facts are ascertained whether there exists a road called

Mattathippara-Ambayil-Erikkad road which does not pass

through the property of the petitioner and members of his

larger family.

9. However, it was brought to my notice that the

petitioner has also filed a statutory appeal against Ext.P15. It

is pending consideration before the Committee of the Grama

Panchayat. Ext.P17 decision No.5(1) dated 03.09.2020 of the WP(C) No.16067/2020

Steering Committee of the Panchayat would show that the

appeal filed by the petitioner is pending before the Committee

and the appeal is not proceeded with for the reason that the

petitioner has filed this writ petition (W.P.(C) No.16067/2020)

and there is an interim order in the writ petition. This Court,

while admitting this writ petition, passed an interim order on

21.08.2020 staying the operational enforcement of the

impugned Ext.P15 order dated 30.07.2020. This Court is of

the opinion that when a statutory appeal is pending before the

Grama Panchayat, an adjudication in this writ petition under

Article 226 of the Constitution is unnecessary and

unwarranted.

In such circumstances, the writ petition is disposed

of directing the 1st respondent to consider and pass

appropriate orders in the appeal preferred by the petitioner

and made mention in Ext.P17, in accordance with law, within a

period of two months after giving an opportunity of hearing to

the petitioner as well as respondents 5 and 6 and any other

affected parties. It is made clear that the interim order passed WP(C) No.16067/2020

by this Court on 21.08.2020 will continue to enure to the

benefit of the petitioner till a decision is taken in the appeal

filed by the petitioner.

Sd/-

N. NAGARESH, JUDGE

aks/04.10.2021 WP(C) No.16067/2020

APPENDIX OF WP(C) 16067/2020

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE D AND O LICENCE ISSUED IN FAVOUR OF THE PETITIONER FOR CONDUCTING QUARRYING OF GRANITE STONES DATED 01.03.2019.

EXHIBIT P2 TRUE COPY OF THE LICENCE ISSUED IN FAVOUR OF THE PETITIONER FOR THE METAL CRUSHER UNIT DATED 01.03.2019.

EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN O.S.NO.190/2003.

EXHIBIT P4 TRUE COPY OF THE DOCUMENT DATED 20.04.2012.

EXHIBIT P5 TRUE COPY OF THE DOCUMENT DATED 17.02.2012.

EXHIBIT P6            TRUE COPY OF THE RESOLUTION OF THE 1ST
                      RESPONDENT   GRAMA    PANCHAYAT     DATED
                      07.06.2019.
EXHIBIT P7            TRUE COPY OF THE NOTICE ISSUED BY THE
                      SECRETARY,   GRAMA    PANCHAYAT     DATED
                      03.06.2020.
EXHIBIT P8            TRUE COPY OF THE REPLY SUBMITTED BY THE
                      PETITIONER ON 04.06.2020.
EXHIBIT P9            TRUE   COPY    OF  THE    ACKNOWLEDGMENT

OBTAINED FROM THE 1ST RESPONDENT GRAMA PANCHAYAT.

EXHIBIT P10 TRUE COPY OF THE RELEVANT PAGE OF THE ROAD REGISTER OF THE KANJIRAPPALLY GRAMA PANCHAYAT SHOWING THE MATTATHIPRA

- AMBIYIL-ERIKAD ROAD.

EXHIBIT P11 TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 06.06.2020.

EXHIBIT P12 TRUE COPY OF THE JUDGMENT IN WP(C) NO.11721/2020.

EXHIBIT P13 TRUE COPY OF THE INSPECTION REPORT ALONG WITH THE MEETING OF THE STEERING COMMITTEE DATED 28.07.2020.

WP(C) No.16067/2020

EXHIBIT P14 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER AS AGAINST THE INSPECTION REPORT.

EXHIBIT P15 TRUE COPY OF THE ORDER DATED 30.07.2020 ISSUED BY THE SECRETARY.

EXHIBIT P17 COPY OF DECISION (SL.NO.5(1) TAKEN BY THE KANJIRAPALLY GRAMA PANCHAYAT IN THE MEETING.

RESPONDENT EXHIBITS

EXHIBIT R5(A) TRUE COPY OF THE PLAINT FILED IN OS NO 190/2003 OF THE COURT OF MUNSIFF KANJIRAPPALLY DATED 22.7.2003 EXHIBIT R5(B) TRUE COPY OF THE DOCUMENT MARKED AS EXHIBIT X1 IN OS NO 190/2003 OF MUNSIFF COURT KANJIRAPPALLY EXHIBIT R5(C) TRUE COPY OF THE DOCUMENT MARKED AS EXHIBIT X1(A) IN OS NO 190/2003 OF MUNSIFF COURT KANJIRAPPALLY EXHIBIT R5(D) TRUE COPY OF THE DECREE DATED 22.7.2003 IN OS NO 190/2003 OF MUNSIFF COURT KANJIRAPPALLY EXHIBIT R5(E) TRUE COPY OF THE PLAINT FILED IN OS 110/2020 DATED 1.6.2020 OF MUNSIFF COURT KANJIRAPPALLY EXHIBIT R5(F) TRUE COPY OF THE INTERIM INJUCTION PETITION FILED IN OS NO 110/2020 OF THE KANJIRAPPALLY MUNSIFF'S COURT DATED 1.6.2020 EXHIBIT R5(G) TRUE COPY OF THE ORDER OF INJUNCTION GRANTED IA NO 1/2020 IN OS NO 110/2020 OF MUNSIFF'S COURT KANJIRAPPALLY DATED 2.6.2020 EXHIBIT R5(H) TRUE COPY OF THE SURVEY PLAN ISSUED BY THE KANJIRAPPALLY VILLAGE OFFICER DATED 17.8.2011 EXHIBIT R5(I) TRUE COPY OF THE SURVEY PLAN OF THE AREA ISSUED BY THE KANJIRAPPALLY VILLAGE OFFICER DATED 10.5.2015 EXHIBIT R5(J) TRUE COPY OF THE SALE DEED NO 1333/2010 OF THE KANJIRAPPALLY SRO DATED 29.3.2010 WP(C) No.16067/2020

EXHIBIT R5(K) TRUE COPY OF THE SALE DEED NO 4436/2010 THE KANJIRAPPALLY SRO DATED 9.11.2010 EXHIBIT R5(L) TRUE COPY OF THE SALE DEED NO 1673/2011 OF THE KANJIRAPPALLY SRO DATED 25.4.2011 EXHIBIT R5(M) TRUE COPY OF THE SALE DEED NO 2949/2014 OF SRO KANJIRAPALLY DATED 19.12.2014 EXHIBIT R5(N) PHOTOGRAPHS TAKEN OF THE QUARRY OF THE PETITIONER IN KANJIRAPPALLY VILLAGE