Kerala High Court
P.K. Manoj vs Thirumaradi Grama Panchayath on 29 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
WP(C) NO. 6833 OF 2011
PETITIONERS:
1 P.K. MANOJ
PAROKUTTILIL HOUSE, LAKSHAM VEEDU COLONY,,
THIRUMARADI.P.O,ERNAKULAM DISTRICT.
2 C.K.SHAJI, AGED 39 YEARS, S/O.KUNJUKOCHU
LAKSHAM VEEDU COLONY,THIRUMARADI.P.O, ERNAKULAM
DISTRICT.
3 P.C.JOLLY, AGED 46 YEARS, S/O.CHACKO
MUNDAKAL HOUSE,LAKSHAM VEEDU COLONY,THIRUMARADI.PO,
ERNAKULAM DISTRICT.
BY ADV SRI.T.N.SURESH
RESPONDENTS:
1 THIRUMARADI GRAMA PANCHAYATH
BY ITS SECRETARY,THIRUMARADI.P.O,ERNAKULAM, DISTRICT.
2 EDAPRA BHAGWATHI KSHETHRAM DEVASWOM
REPRESENTED BY ITS MANAGER P.R.MOHANAN NAIR,,
'SOWPARNIKA',THIRUMARADI.P.O,ERNAKULAM DISTRICT.
3 ARAVINDAN, AGED 45 YEARS, PROPRIETOR
THANNICKAL INDUSTRIES,THIRUMARADI.P.O,, ERNAKULAM
DISTRICT.
BY ADVS.
P.B.SAHASRANAMAN FOR R2
SMT.ANITHA MATHAI MUTHIRENTHY
SRI.T.S.HARIKUMAR
SRI.K.JAGADEESH
SRI.MATHAI VARKEY MUTHIRENTHY
SRI.P.V.SANTHOSH JOSE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.6833/2011 2
JUDGMENT
Dated this the 29th day of October, 2021
The grievance highlighted by the petitioners pertains to the alleged lethargy
of Thirumarady Grama Panchayat, Ernakulam District - 1 st respondent, to evict
respondents 2 & 3 viz., Edapra Bhagawathi Kshethram Devaswom, represented by
its Manager, Thirumarady.P.O. Ernakulam and Aravindan, Proprietor, Thannickal
Industries, Thirumarady. P.O Ernakulam District, from the land and building
allegedly owned by the 1st respondent Grama Panchayat, who is the exclusive
owner of 25 cents of land and a building bearing No.484(old), 9/533 (new),
constructed by spending public funds to start ICDP project in the year 1967.
2. According to the petitioners, a veterinary hospital was functioning in the
property. It is also submitted that in the year 2000, the veterinary hospital was
shifted to some other place and thereafter, the 2 nd respondent i.e., Edapra
Bhagawathi Kshethram Devaswom, trespassed into the property and is
unauthorisedly occupying 25 cents of land and the building owned by the 1 st
respondent. It is submitted that against the unauthorised occupation by the 2 nd
respondent, the Veterinary Surgeon of the hospital complained to the Panchayat on
10.8.2008, evident from Exhibit P1. According to the petitioners, no action was
taken and thereupon, local people have submitted a mass memorandum dated
21.2.2009 to the Grama Panchayat, espousing the public grievance and seeking
immediate action to remove the unauthorised occupation of the 2 nd respondent,
evident from Ext.P2.
3. It is also the case of the petitioners that since the Grama Panchayat has
not taken any action, the 2 nd respondent let out a portion of the building to the 3 rd
respondent and he has started a business of selling building materials under the
name and style "Thannickal Industries". Third petitioner has submitted Exhibit P4
complaint dated 17.8.2020 and on the basis of the same, 1 st respondent has issued
Exhibits P5 and P6 notices to the Devaswom and the proprietor of Thannickal
Industries, directing them to vacate the premises, failing which, proceedings were
threatened to be initiated under the Kerala Panchayat Raj (Removal of
Encroachment and imposition and recovery of Penalty for Unauthorised
Occupation) Rules, 1996.
4. The case projected by the petitioners is that in spite of the same, no
action was initiated. Notices are apparently dated 11. 11. 2010. Anyhow, the 3rd
petitioner again submitted Exhibit P7 before the Secretary of the Grama Panchayat
and requested for taking appropriate action to protect the property of the
Panchayat. These are the background facts projected in the writ petition to secure
the following reliefs:
(i) issue a writ of mandamus or any other appropriate writ or order, directing
the 1st respondent to take immediate and coercive steps to remove the
unauthorised occupation of the 2 nd and 3rd respondents from the public
property mentioned in Exhibits P5 and P6.
(ii) Grant such other reliefs as this Honourable Court may deem fit and proper in
the circumstances of the case.
5. The 1st respondent Grama Panchayat has filed a detailed counter affidavit
submitting that there is no records regarding the ownership of the building bearing
No.9/533 and whether any public fund was spent for the construction of the said
building to start an Intensive Cattle Development Project (ICDP) in the year 1967;
the said project was subsequently upgraded as veterinary hospital and a full-time
veterinary Doctor was appointed; the project and the hospital were working under
the Animal Husbandry Department of the State till the year 1996-1997; the 1 st
respondent took over the administration of the said project in the year 1996-1997,
being part of the Janakeeya Assothrana Project; as per the orders issued by the
Government, the said project came under the authority of the respondent
Panchayat but no documents vesting any ownership of the land and building in
question was given; the veterinary hospital was functioning in the said building
under the administration of the 1st respondent Grama Panchayat till the year 2000;
the Panchayat purchased land and constructed a building for the veterinary hospital
and the same was shifted to a new building on 5.8.2000; the building in question
was closed and locked after the veterinary hospital was shifted to the new building;
the Panchayat came to know about the trespass of the 2 nd respondent into the said
building and property during March, 2008 and the Panchayat committee resolved to
request the Revenue Divisional Officer, Muvattupuzha, to take appropriate action
on the issue and to evict the trespass from the public property, evident from
Exhibits R1 and R2, copy of the resolution dated 10.3.2008 and letter dated
10.3.2008, respectively; the Panchayat had admitted that it has received Exhibit P1
letter dated 10th August, 2008 from the Veterinary Surgeon and Exhibit P2 mass
petition dated 21.2.2009 and Exhibit P7 complaint dated 25.2.2011 from the
petitioners and others; and it was on the basis of Exhibits P1 and P2 letters, the
Panchayat has issued Exhibits P5 and P6 notice to the 2nd respondents dated
11.11.2010.
6. According to the Panchayat, the Panchayat is taking effective steps to
evict the trespass, if any, on the public property. However, it is admitted that delay
is caused in the matter because of the difficulty in tracing out the documents
pertaining to the ownership of the property in dispute. It is also admitted that the
Grama Panchayat is not having any records showing the handing over or surrender
of the disputed land situated in Sy.No.117/1A and building bearing No.9/533 to the
Panchayat and is earnestly trying to get the same from the concerned Department
of the Government.
7. Second respondent i.e., Devaswom, has filed a counter affidavit refuting
the allegations and claims and demands raised by the petitioners. According to the
Devaswom, an extent of 4.02 acres of land in Sy.No.117/1A of the Thirumarady
Village is in possession and enjoyment of the Devaswom as per the Thandaper A/C
No.1378 of the Thirumarady Village and the land is used by the devotees of the
temple and land tax is remitted. The photocopy of the possession certificate dated
8.12.2010 is produced as Exhibit R2(a). According to the Devaswom, when an
Intensive Cattle Development Project was allotted to the Thirumarady Panchayat, it
was not having sufficient space for the establishment of the same and thereupon,
the Devaswom allowed the Panchayat to use Building No.VI/561, wherein the
veterinary hospital was functioning for the ICDP sub-centre; that they occupied the
building for a long period and used the temple for the said purposes without
causing any inconvenience to the devotees; there is a Lakshamveedu colony near
the said property and people used to walk through the temple land; there is a
public health centre, to which, patients are taken through the temple property on
certain occasions, but the same was misused and several others started plying
vehicles through the land in question and anti-social elements started to occupy the
same.
8. Thereupon, committee members have approached this Court by filing
O.P.No.1849/1997 and in CMP No.3349/1997, this Court has passed an interim
order directing the District Collector, Ernakulam and the Thirumarady Grama
Panchayat, to take steps to prevent the plying of vehicles through the temple
compound except the vehicles carrying patients to the Primary Health Centre or
taking patients away from the Primary Health Centres, until further orders. Again in
CMP No.52742/2000, the District Collector and the Thirumarady Grama Panchayat
were restrained from making use of the building No.VI/561 of Thirumarady
Panchayat for any purpose other than the purpose of ICDP sub-centre and further
restrained the Panchayat from using the building for any other purpose or letting
any other organisation into the building, will continue to be in force.
9. According to the Devaswom, the said writ petition was closed since the
Grama Panchayat has withdrawn from the proceedings, as per a judgment dated
7.6.2007. However the case of the Devaswom is that, the 1st respondent again
started proceedings against the Devaswom and approached the Revenue Divisional
Officer, Muvattupuza, who in turn sent a communication to the Panchayat on
30.8.2008, stating that the building and the property is that of the 2 nd respondent
and there is nothing on record to show that the property has been assigned to the
1st respondent, evident from Exhibit R2(d). Other contentions are also raised and
the Devaswom has disputed the allegations made by the petitioners that illegal and
unauthorised constructions are put up by the Devaswom.
10. A reply affidavit is filed by the petitioners reiterating the stand adopted in
the writ petition and also disputing the correctness of the claims raised by the
Devaswom in its counter affidavit.
11. I have heard, learned counsel for the petitioners Sri.T.N.Suresh, learned
counsel appearing for the Devaswom Sri.P.B.Sahasranamam and perused the
pleadings and materials on record.
12. Learned counsel appearing for the petitioners submitted that Exhibits P4
& P5 communications issued by the Panchayat dated 11.11.2010, would make it
clear that the building belongs to the Panchayat. The Panchayat has clearly stated
in the said notices that the Devaswom and proprietor of Thannickal Industries,
have trespassed into the building of the Panchayat. That apart, it is contended that
the Panchayat has even stated that it would take coercive action against
respondents 2 & 3 under the Rules, 1996 to evict the Devaswom and Thannickal
Industries, but no effective steps are taken and therefore, the Panchayat is
colluding with respondents 2 & 3.
13. On the other hand the counter affidavit filed by the Panchayat would
show that even the Panchayat is not having a concrete case that the building and
the property is belonging to Panchayat since it is stated in the counter affidavit that
Panchayat is making earnest efforts to secure some documents from the concerned
department of the Government to establish that the building and the property in
question was surrendered to the Panchayat. Therefore, it is clear that the contents
in Exhibits P5 and P6 notices issued by the Panchayat to the Devaswom and the
Thannickal Industries, that the property in which the building situated belongs to
the Panchayat, is controverted by the Panchayat itself . As per the submissions
made in the counter affidavit filed in this writ petition, it is also clear that even the
Panchayat is not having any documents with respect to the ownership of the
building and property in question. At the same time, the Devaswom filed the
counter affidavit asserting its possession and also stating that in the village records,
the property is having thandaper No.1378 in favour of the Devaswom. The
Devaswom has also produced Exhibit R2(a) possession certificate issued by the
Thirumarady Village dated 08.12.2010, wherein it is stated that the property is
remaining in Thandaper Account No.1378. The Devaswom also asserts that it is
paying property tax to the building. That apart, on the basis of a complaint filed
before the Revenue Divisional Officer, Muvattupuzha, the Revenue Divisional
Officer has replied as per Exhibit R2(d) letter dated 30.8.2008, that as per the
village records, the property in which the building is situated is included in
Thandaper Account of the Dewaswom and there is no evidence to show that the
said building was handed over to the Panchayat and therefore, Panchayat was
directed to take appropriate decision.
14. I have evaluated the rival submissions made across the Bar. In my
considered opinion, the discussion of facts made above would make it clear that
the claim made by the petitioners that the building is belonging to the Panchayat is
not established even by a prima facie proof Even though the petitioners have
produced Exhibits P5 and P6 notices dated 11.11.2010 issued by the Panchayat to
the Devaswom and Thannickal Industries asserting its right over the building in the
counter affidavit such assertion has vanished since it states that still it is searching
for proof of its ownership .
15. Going by the counter affidavit filed by the Panchayat, Panchayat admits
that it does not have any record to show that the building belongs to the
Panchayat. Panchayat has produced Ext.R1(a) dated 10.3.2009, which is the
resolution passed by the Panchayat, wherein it is recorded that, consequent to the
allegation that the Devaswom has trespassed into the building of the Panchayat, it
has decided to approach the Revenue Divisional Officer. It is clear that it was on
the basis of the said letter, the Revenue Divisional Officer has responded as per
Ext.R2(d) communication dated 30.08.08 from where also it is evident that the
property, in which the building situated is remaining in the Thandaper Account of
the Devaswom.
16. Therefore, on assimilation of facts, it is clear that the petitioners could
not establish any full proof case before this court, and consequent to the affidavits
filed by the Panchayat as well as Devaswom, the issues raised by the petitioners
have become complex the truth of which could be only deciphered by a fact finding
body. If the Panchayat has a case that the building belongs to the Panchayat, the
Panchayat has remedy as per the provisions of the Act, 1996. Even though action
was threatened under Rules, 1996 in Exts.P5 and P6 communication issued to the
Devaswom and Thannickal Industries, no follow-up action was taken.
17. In view of the disputed factual circumstances in respect of an immovable
property, the writ court is not expected to adjudicate the issue and that too without
any authoritative and authentic documents before it. The letter issued by the
Revenue Divisional Officer and the documents produced by the Panchayat would
show that the property in which the building is situated is still remaining in the
Thandaper account of the Devaswom. Therefore, I am of the considered opinion
that petitioners have not made out any case for interference invoking the
discretionary remedy conferred on this court under Article 226 of the Constitution
of India. Therefore, the writ petition fails, accordingly it is dismissed.
Sd/-
SHAJI P. CHALY,
smv JUDGE
APPENDIX OF WP(C) 6833/2011
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE COMPLAINT DATED 10/08/2008
BY THE THEN VETERINARY SURGEON TO THE 1ST
RESPONDENT.
Exhibit P2 TRUE COPY OF THE MASS PETITION DATED
21/02/2009 SUBMITTED BY THE PETITIONERS AND
OTHERS BEFORE THE 1ST RESPONDENT.
Exhibit P3 TRUE PHOTOGRAPH SHOWING THE BUSINESS OF THE
2ND AND 3RD RESPONDENTS.
Exhibit P4 TRUE COPY OF THE COMPLAINT DATED 17/08/2010
MADE BY THE 3RD PETITIONER BEFORE THE 1ST
RESPONDENT.
Exhibit P5 TRUE COPY OF THE NOTICE DATED 11/11/2010
ISSUED BY THE 1ST RESPONDENT TO THE 2ND
RESPONDENT.
Exhibit P6 TRUE COPY OF THE NOTICE DATED11/11/2010
ISSUED BY THE 1ST RESPONDENT TO THE 3RD
RESPONDENT.
Exhibit P7 TRUE COPY OF THE COMPLAINT DATED 25/02/2011
SUBMITTED BY THE 3RD PETITIONER TO THE 1ST
RESPONDENT.
RESPONDENT EXHIBITS
Exhibit R1 THE TRUE COPY OF THE RESOLUTION NO. I DATED
10/03/2008, TAKEN BY THE FIRST RESPONDENT.
Exhibit R2 TRUE COPY OF THE LETTER NO. A6-68/2008 DATED
10/03/2008 SENT TO THE REVENUE DIVISIONAL
OFFICER, MUVATTUPUZHA BY THE 1ST RESPONDENT.
Exhibit R2(A) TRUE PHOTOSTAT COPY OF THE POSSESSION
CERTIFICATE ISSUED BY THE VILLAGE OFFICER,
THIRUMARADY, DATED 08/12/2010.
Exhibit R2(B) TRUE PHOTOSTAT COPY OF THE ORDER PASSED IN
CMP NO.3349/1997 IN OP NO.1849/1997 DATED
19/12/1997 OF THE HON'BLE HIGH COURT.
Exhibit R2(C) TRUE PHOTOSTAT COPY OF THE ORDER IN CMP
NO.52742/2000 IN OP NO.1849/1997, DATED
15/11/2000 OF THIS HON'BLE HIGH COURT.
Exhibit R2(D) TRUE PHOTOSTAT COPY OF THE LETTER NO.
3122/08/K.DIS. DATED 30/08/2008 ISSUED BY THE
RDO, MUVATTUPUZHA.
