Sameena O A vs Cheranalloor Grama Panchayath
2022 Latest Caselaw 1057 Ker

W.P.(C) No. 6449/2015              :1:



             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

         THURSDAY, THE 27TH DAY OF JANUARY 2022 / 7TH MAGHA, 1943

                          WP(C) NO. 6449 OF 2015

PETITIONER/S:

1           SAMEENA O A
            AGED 32 YEARS
            W/O.SIYAD, PATTAYAMCHERRY HOUSE, PONNEVAZHY, NEW CROSS
            ROAD, EDAPPALLI, ERNAKULAM.

            BY ADV SRI.S.MOHAMMED AL RAFI

RESPONDENT/S:
     1    CHERANALLOOR GRAMA PANCHAYATH
          REP. BY SECRETARY, SOUTH CHITTOOR PO, ERNAKULAM-682 027.

            ADDL.R2 & R3 IMPLEADED:

     2      JAMES GEORGE,
            AGED 45 YEARS
            S/O. GEORGE, PEEDIYEKAL HOUSE, CHERANELLOOR VILLAGE,
            KANAYANNOOR TALUK, CHERANELLOOR P.O., PIN CODE - 682 034.

     3      MARY DIXY JAMES,
            AGED 42 YEARS
            W/O. JAMES GEORGE, PEEDIYEKAL HOUSE, CHERANELLOOR VILLAGE,
            KANAYANNOOR TALUK, CHERANELLOOR P.O. - 682 034.

            (ADDL.R3 & R4 ARE IMPLEADED AS EPR ORDER DATED 07.06.2019 IN
            IA 1/2019 IN WPC 6449/2015)

            BY ADVS.
            SRI.T.K.AJITHKUMAR (VALATH)
            SRI.AJITH VISWANATHAN


            R1- SRI.T.K.AJITHKUMAR(VALATH)
            R2 AND 3 - SRI. AJITH VISWANATHAN

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.01.2022, THE

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 6449/2015             :2:



             Dated this the 27th day of January, 2022.

                              JUDGMENT

This writ petition is filed by the petitioner challenging Ext. P2

order dated 11.02.2015 issued by the Secretary of the Cheranalloor

Grama Panchayat.

2. The case put forth by the petitioner is that, he is the absolute

owner in possession and ownership of an extent of 13.86 Ares of

property situated in re-Survey No. 587/14 of Cheranalloor Village, and

described as a purayidam (dry land) in the revenue records. It is

further submitted that the property was inherited by the petitioner

from her deceased father and now her mother Arifa received Ext. P2

notice from the Cheranalloor Grama Panchayat stating that a water

course (thodu) situated in the property was filled up and directing the

petitioner/her mother to restore the original position of the water

course within 14 days from the date of receipt of the order.

3. The paramount contention advanced by the petitioner is that

there is no water course in her property and that the petitioner's

mother has no right in the property. It is also submitted that neither

the petitioner nor her mother were heard before issuing Ext. P2 notice.

It is also contended that Ext. P2 notice suffers from the vice of

arbitrariness and illegality liable to be interfered with by this Court. It

is further pointed out that respondents 2 and 3 namely James George

and Mary Diny James, have filed O.S. No. 402 of 2015 before the

Munsiff's Court, Ernakulam against the mother of the petitioner

namely Arifa and the same is pending consideration.

4. Today, when the matter was taken up, the learned counsel for

the petitioner submitted that the suit was later dismissed as

withdrawn. But, again an application was filed to restore the suit for

the third time, which is also pending consideration and again an

application is filed to withdraw the same. But, fact remains, the

Panchayat is not a party in the said suit proceedings.

5. Respondent Nos. 2 and 3 have filed a counter affidavit

disputing the allegations and the contentions raised by the petitioner

in the writ petition. It is also submitted that the petitioner has filled up

the water channel causing inconvenience to the said respondents and

others. Anyhow, it is submitted that proceedings in a suit by and

between the private parties are pending consideration before the

Munsiff's Court, Ernakulam.

6. The first respondent has filed a counter affidavit justifying its

action and also raising contentions relying upon Section 218 of the

Kerala Panchayat Raj Act, 1994 dealing with water courses etc.

7. I have heard the learned counsel for the petitioner Sri. S.

Mohammed Al Rafi, Sri. Jeffin, representing Senior Advocate Sri. P.

Viswanathan for respondents 2 and 3, and Sri. T.K. Ajith Kumar for the

Cheranalloor Grama Panchayat, and perused the pleadings and

materials on record.

8. The learned counsel for the petitioner addressed arguments

in accordance with the submissions recorded above. Respective

counsel appearing for respondents have also addressed arguments

basically contending that the petitioner has filled up a flowing water

course and therefore, it is the duty of the Panchayat to take necessary

action to restore the water course.

9. In my considered opinion by making a reference to certain

provisions of some of the relevant statutes, issues raised by the

petitioner can be sorted out. Section 218 of the Act, 1994, dealing

with vesting of watercourse, springs, reservoirs, etc., in Village

Panchayats, reads thus:

"218. Vesting of water course, springs, reservoirs, etc., in Village Panchayats. - (1) Notwithstanding anything contained in the Kerala Land Conservancy Act, 1957 (8 of 1958) or in any other law for the time being in force, all public water courses (other than river passing through more areas, than the panchayat area which the Government may, by notification in the gazette, specify), the beds and Banks of

rivers, streams, irrigation and drainage channels, canals, lakes, back waters and water courses and all standing and flowing water, springs, reservoirs, tanks, cisterns, fountains, wells, kappus, chals, stand pipes and other water works including those used by the public to such an extent as to give a prescriptive right to their use whether existing at the commencement of this Act or afterwards made, laid or erected and whether made, laid or erected at the cost of the panchayat or otherwise, and also any adjacent land, not being private property appertaining thereto shall stand transferred to and vest absolutely in the village panchayat:

Provided that nothing contained in this sub-section shall apply to any work which is or is connected with, a work or irrigation or to any adjacent land appertaining of any such work.

(3) Notwithstanding anything contained in sub-section (1) or sub- section (2), the government may, by notification in the Gazette, assume the administration of any public source of water supply and public land adjacent and appertaining thereto after consulting the village panchayat and giving due regard to its objection, if any. (4) It shall not be lawful for any person to remove or appropriate for himself any tree, earth, sand, metal, laterite, limeshell or such other articles of value as may be notified by the village panchayat from any land which is transferred to or vested in the village panchayat, under this Act whether a poramboke or not except under and in accordance with the terms and conditions of a permit issued by the village panchayat in this behalf and on payment of such fees and compensation at the rate determined by the village panchayat."

10. On a reading of Section 218 (1) as above, it is clear that

even a prescriptive right vests with the Panchayat. Moreover, the third

Schedule of the Act, 1994 deals with the mandatory functions of the

Village Panchayat. Entry 2 therein deals with protection of the public

lands against encroachments; entry 5 deals with maintenance of

waterways and canals under the control of Village Panchayats; and

entry 14 deals with protection of roads and other public properties.

Therefore it is explicit that all aspects raised in the writ petition are

within the realm and powers of the Secretary of a Grama Panchayat.

11. The case of the petitioner is that there is no public property

involved in the subject issue raised by the Panchayat and therefore,

the Panchayat is not competent to issue a notice and direct the

petitioner to restore the water course; but the provision discussed

above shows otherwise. It is also the contention of the petitioner that

no notice was issued prior to the issuance of Ext. P2 notice and

therefore, the entire action of the Panchayat is tainted with mala fides

and arbitrariness.

12. Having evaluated the rival submissions, I am of the

considered opinion that a writ court, exercising the power under Article

226 of the Constitution of India, in a summary manner, is not

expected to delve deep into the factual circumstances and decipher the

truth. Chapter II of the Kerala Survey and Boundaries Act, 1961 ('Act,

1961' for short) deals with the survey of properties and Section 4A

was incorporated in the Act on and with effect from 12.05.2000, which

reads thus:

"4A. Government may direct the survey and demarcation of any lans belonging to local authority.--Whenever a local, authority as defined in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or in the Kerala Municipality Act, 1994 (20 of 1994) requests the Government for surveying and demarcating the boundaries of any land vested or owned by it, the Government or any officer or authority authorized by the Government in this behalf, by notification in the Gazette shall get the land surveyed and demarcated.

13. Therefore, it is categoric and clear that a clear procedure is

prescribed under the law in order to identify any public property or

other aspects empowered under the Act 1994. I am of the undoubted

opinion that the Secretary of the Grama Panchayat is entitled and

empowered, as of right, to identify as to whether any public property

or a prescriptive right is encroached or interfered with by any person

and has filled up the same in order to prevent a water course.

However, I feel that before issuing Ext. P2 notice directing the

petitioner to restore the filled up water course, necessary opportunity

should have been given to the petitioner to identify as to whether any

public property is involved or a water course is prevented by the

petitioner by filling up the same interfering with the public rights in

contemplation of Section 218 of Act 1994.

In that view of the matter and taking into account the provisions

discussed above, I dispose of the writ petition with the following

directions:

1. Ext. P2 notice bearing No. C8.7618/2014 dated 11.02.2015

issued by the first respondent, the Secretary of the Cheranalloor

Grama Panchayat, shall be treated as a show cause notice.

2. The petitioner is granted one month's time to file an objection to

the same.

3. The Secretary of the Grama Panchayat shall, on receipt of the

objection from the petitioner, issue appropriate request as is

provided under Section 4A of the Act, 1961, carry out the

measurements at the earliest possible time in order to identify

whether any public property or a water course is interfered with

or whether a public waterway is filled up by the petitioner, and

take a decision at the earliest possible time and at any rate

within four months from the date of receipt of objection from the

petitioner.

sd/- SHAJI P. CHALY, JUDGE.

Rv

APPENDIX OF WP(C) 6449/2015

PETITIONER'S EXHIBITS:

EXHIBIT P1 EXT P1 : TRUE COPY OF THE LAND TAX RECEIPT DATED 31-12-2014 AND ITS ENGLISH TRANSLATION.

EXHIBIT P2 EXT P2 : TRUE COPY OF ORDER DATED 11-02-2015 AND ITS ENGLISH TRANSLATION ISSUED BY THE RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE PLAINT IN O.S.402/2015 FILED BY ADDITIONAL RESPONDENT NOS.2 AND 3, BEFORE THE MUNSIFFS COURT, ERNAKULAM.

EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.S.NO.402/15, BEFORE THE MUNSIFFS COURT, ERNAKULAM.

EXHIBIT P5 TRUE COPY OF THE ADVOCATE COMMISSION REPORT DTD.8/6/2015 IN O.S.N02/15.

EXHIBIT P6 TRUE COPY OF ADVOCATE COMMISSION REPORT DTD.

18/9/18 IN O.S.NO.402/15.

EXHIBIT P7 TRUE COPY OF THE JUDGMENT DTD.7/1/19 IN O.S.NO.402/15 OF IIND ADDITIONAL MUNSIFF COURT, ERNAKULAM.

RESPONDENTS' EXHIBITS: NIL

/True Copy/

PS To Judge.

rv