Velayudhan vs The State Of Kerala
2022 Latest Caselaw 1900 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
     FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943
                        WP(C) NO. 12666 OF 2021
PETITIONER:

          VELAYUDHAN
          AGED 72 YEARS
          S/O. PARAN, VATTATHARA HOUSE, KURUVILASSERY DESOM,
          KURUVILASSERY VILLAGE, CHALAKUDY TALUK, THRISSUR
          DISTRICT, PIN-680 732
          BY ADV N.L.BITTO


RESPONDENTS:

    1     THE STATE OF KERALA
          REP. BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF
          GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM-695 001
    2     MALA GRAMA PANCHAYATH,
          REP. BY THE SECRETARY, MALA P.O, CHALAKUDY TALUK,
          THRISSUR DISTRICT, KERALA, PIN-680 732.
    3     SECRETARY,
          MALA GRAMA PANCHAYATH, MALA P.O, CHALAKUDY TALUK,
          THRISSUR DISTRICT, KERALA, MALA GRAMA PANCHAYATH,
          PIN-680 732
    4     BINDU BABU
          AGED 50 YEARS
          W/O.BABU, CHOOLACKAL HOUSE, KURUVILASSERY DESOM,
          KURUVILASSERY P.O, CHALAKUDY TALUK, THRISSUR DISTRICT,
          PIN-680 732
          BY ADVS.
          SRI.PHILIP T.VARGHESE, SC, MALA GRAMA PANCHAYATH
          SRI.M.H.HANIL KUMAR - R4



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 12666 OF 2021
                                    2



                 P.V.KUNHIKRISHNAN, J
               -------------------------------
               W.P.(C)No. 12666 of 2021
              --------------------------------
     Dated this the 18th day of February, 2022

                            JUDGMENT

The above writ petition is filed with the following

prayers:

"(i) Issue a writ of Mandamus or any other appropriate writ, order or direction commanding respondents 1 to 3 to consider Exhibit -P1 and remove the property from asset register of the panchayath, not to proceed further with repairing or widening the property as panchayath road, as the petitioner got half right over the same.

(ii) To pass any such or further orders as the petitioner may seek and this Hon'ble Court deem fit to grant."[SIC]

2. It is the case of the petitioner that he is the

co-owner of a disputed private pathway and he obtained

half right as per the compromise decree in O.S No.425 of

1980 of the Irinjalakkuda Munsiff Court. Ext.P1 is the

decree. According to the petitioner, one Bahuleyan was

the owner of the pathway and half right over the WP(C) NO. 12666 OF 2021

pathway purchased by the petitioner for valid

consideration and accordingly compromise decree was

passed. Later the said pathway was tarred by the

petitioner and Bahuleyan and according to the petitioner

it is maintained as a private road. Subsequently

Bahuleyan sold his remaining adjacent properties. It is

the case of the petitioner that they are attempting to

make the said pathway as public. It is the case of the

petitioner that there is no relinquishment of right or

acquisition property in the above with regard to the right

of the petitioner. It is the case of the petitioner that the

respondent Panchayat is attempting to widen the road

by tarring the same. It is the case of the petitioner that

the Panchayat has no right to trespass to the property of

the petitioner and the Panchayat has no right to improve

or widen the property without relinquishment of right by

the petitioner. It is the case of the petitioner that the

Panchayat included the property in the asset register.

Petitioner submitted Ext.P3 representation before the

Panchayat, but there is no response to the same and WP(C) NO. 12666 OF 2021

hence this writ petition is filed.

3. Heard the learned counsel for the petitioner,

the learned Government Pleader, the learned Standing

Counsel for the Panchayat and the learned counsel

appearing for the 4th respondent.

4. The counsel for the petitioner submitted that,

in the light of Ext.P1 decree the Panchayat can not

include the pathway in the asset register of the

Panchayat. On the other hand the learned counsel

appearing for the 4th respondent submitted that the point

raised by the petitioner is decided against the petitioner

in the judgment of this Court dated 08.02.2017 in

W.A.No.1537 of 2015.

5. Admittedly Ext.P3 is pending before the 2nd

respondent. The petitioner narrated his grievance in

Ext.P3. There can be a direction to the 2nd respondent to

consider Ext.P3 in the light of Ext.P1 decree. The

Panchayat will also consider the applicability of the

dictum laid down by this Court in W.A.No.1537 of 2015,

while deciding this matter.

WP(C) NO. 12666 OF 2021

Therefore, this writ petition is disposed of in the

following manner:

i. The 2nd respondent is directed to consider Ext.P3

representation, as expeditiously as possible, at any

rate, within two months from the date of receipt of a

copy of this judgment.

ii. Before passing final orders, the 2 nd respondent will give

an opportunity of hearing to the petitioner and the

Panchayat will consider all the contentions raised by

the petitioner.

iii. The petitioner will produce a copy of this writ petition

along with a certified copy of this judgment before the

2nd respondent for compliance.

Sd/-

P.V.KUNHIKRISHNAN JUDGE

DM WP(C) NO. 12666 OF 2021

APPENDIX OF WP(C) 12666/2021

PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE COMPROMISE FILED IN OS. NO. 425 OF 1980 OF THE MUNSIFF COURT, IRINJALAKUDA DATED 5.11.1981. EXHIBIT P2 A TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER DATED 30.03.2021 ALONG WITH REPLY FROM 2ND RESPONDENT. EXHIBIT P3 A TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 2.3.2019.

RESPONENTS EXHIBITS : NIL

//TRUE COPY//

PA TO JUDGE