Muhammad Musthafa.K vs State Of Kerala
2022 Latest Caselaw 335 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
    THURSDAY, THE 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
                       WP(C) NO. 12566 OF 2020
PETITIONER:

          MUHAMMAD MUSTHAFA.K., AGED 45 YEARS
          RESIDING AT KANIYARIYIL HOUSE, KOLAMANGALAM,
          VALACHERY.P.O, KATTIPPARUTHI, MALAPPURAM KERALA-676552

          KANDAMPULLY RAHUL
          SMT.RAAGA RAMALAKSHMI



RESPONDENTS:

    1     STATE OF KERALA, REPRESENTED BY THE SECRETARY TO
          GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM 695001

    2     THE VALANCHERY MUNICIPALITY
          REPRESENTED BY ITS SECRETARY, VALANCHERY.P.O, 676552,
          TIRUR TALUK, MALAPPURAM.

    3     DISTRICT COLLECTOR, MALAPPURAM COLLECTORATE, UP HILL,
          MALAPPURAM, KERALA-676505

    4     REVENUE DIVISIONAL OFFICER
          REVENUE DIVISIONAL OFFICE, TIRUR, MALAPPURAM.

    5     TAHSILDAR, MINI CIVIL STATION BUILDING,
          MALAPURAM DISTRICT, TIRUR, KERALA-676101

    6     VILLAGE OFFICER, KUTHUPARAMBA VILLAGE OFFICE,
          KUTHUPARAMBA, KERALA-670643

    7     TALUK SURVEYOR, MINI CIVIL STATION BUILDING, MALAPURAM
          DISTRICT, TIRUR, KERALA-676101

    8     DISTRICT SURVEYOR
          DISTRICT SURVEY SUPERINTENDENT OFFICE, 2ND FLOOR,
          COLLECTORATE B2 BLOCK, PARK PATHA, UP HILL, MALAPPURAM
          KERALA-676505
 WP(C) NO. 12566 OF 2020
                                      2


     9       STATION HOUSE OFFICER,
             VALANCHERY POLICE STATION, NEAR VAIKATHUR,
             VALANCHERY, PERINTHALMANNA ROAD, VALANCHERY,
             KERALA-676552

    10       DR.ABDUL VAHAB,
             KADAVATHU PARAMBIL HOUSE, VALANCHERY.P.O,
             676552, TIRUR TALUK, MALAPPUPRAM DISTRICT.

    11       DR.HASEENA
             KADAVATHU PARAMBIL HOSUE, VALANCHERY.P.O,
             676552, TIRUR TALUK, MALAPPURAM DISTRICT.

ADDL.R12. VARIKKOTTIL ABOOBACKER, AGED 47 YEARS,
          S/O KUNHIMUHAMMED, KUTTIPPURAM AMSOM,
          PAINKANNUR DESOM, TIRUR TALUK,
          MALAPPURAM DISTRICT - 676552

             ADDL.R12 IS IMPLEADED AS PER ORDER DATED
             3.11.2020 IN I.A.NO.1/2020 IN WP(C) 12566/2020

           SRI.MILLU DANDAPANI, SC
           SRI.V.H.NOUFALMON
           SRI.T.K.SAIDALIKUTTY(KUTTIPPURAM)
           SRI.P.M.GIRIJAVALLABHAN

             GP - RESHMI THOMAS


      THIS     WRIT       PETITION   (CIVIL)   HAVING   COME    UP    FOR
ADMISSION     ON    13.01.2022,      THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 12566 OF 2020
                                        3


                                     JUDGMENT

The petitioner has approached this Court making an

allegation that there are several encroachments into the

"Kothe Thodu", which is within the territory of Valanchery

Municipality.

2. Though there are plethora of materials on record and

various allegations and averments made by all sides, I am of

the view that it has now become unnecessary for this Court to

go into it in detail because, pending this lis, on the orders of

this Court, an Advocate Commissioner was deputed, who has

now filed his report dated 10.11.2021, appending thereto a

sketch prepared by the District Survey Superintendent,

Malappuram.

3. All the parties to this case are ad idem that the

aforementioned sketch is an accurate depiction of the ground

realities and that it can be ordered to be implemented by the

Municipality appropriately.

4. Sri.Millu Dandapani, learned standing counsel for the

Municipality, submitted that, going by the sketch produced by

the learned Advocate Commissioner, his client will have to now WP(C) NO. 12566 OF 2020

ensure that all encroachments into the "Thode: are removed

and that the private pathway mentioned therein is properly

maintained perpetually. He submitted that this will be done by

his client without any avoidable delay, but not later than four

months from today.

5. In the afore circumstances and since all parties are in

unison that the sketch appended to the report of the learned

Advocate Commissioner, dated 10.11.2021, can be put into

operation, I deem it appropriate to order this writ petition on

such terms.

6. Resultantly, this writ petition is allowed, with a

direction to the competent Authority of the Valanchery

Municipality to advert to the aforementioned sketch prepared

by the District Survey Superintendent, Malappuram and to

ensure that all encroachments mentioned therein into the

"Kothe Thodu" are removed forthwith, but not later than six

months from the date of receipt of a copy of this judgment;

with the further direction that the said Authority will ensure

that the private pathway mentioned therein is maintained,

without any of the parties being allowed to encroach into the

same in future.

WP(C) NO. 12566 OF 2020

I record this Court's deed appreciation for Sri.P.Abdul

Nishad, learned Advocate Commissioner, but for whose efforts,

this writ petition could not have been disposed of in such an

amiable fashion.

Sd/- DEVAN RAMACHANDRAN JUDGE stu WP(C) NO. 12566 OF 2020

APPENDIX OF WP(C) 12566/2020

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE LETTER DATED 03.06.2018 ISSUED BY M/S GAIL(INDIA) LTD

EXHIBIT P2 A TRUE COPY OF THE STOP MEMO ISSUED TO THE RESPONDENTS 10 & 11 BY THE 2ND RESPONDENT DATED 03.04.2019

EXHIBIT P3 TRUE COPY OF THE SURVEY REPORT AND SKETCH OF THE TALUK SURVEYOR DATED 15.05.2019

EXHIBIT P3(A) TRUE COPY OF THE SKETCH PRODUCED BY THE PETITIONER DATED 15.05.2019

EXHIBIT P4 TRUE COPY OF THE INTERIM ORDER DATED 10.06.2019 OF THIS HON'BLE COURT ISSUED IN WPC NO.15333/2019

EXHIBIT P4(A) TRUE COPY OF THE INTERIM ORDER DATED 26.06.2019 OF THIS HON'BLE COURT ISSUED IN WPC NO.15333/2019

EXHIBIT P5 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT IN WP(C) NO.15333/2019

EXHIBIT P6 TRUE COPY OF THE ORDER OF DISMISSAL DATED 29.07.2019 IN WP(C) NO.15333/2019

EXHIBIT P7 TRUE COPY OF THE LETTER DATED 30.05.2020 ISSUED BY M/S.GAIL (INDIA)LTD.

EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 27.05.2020 ISSUED BY PETITIONER TO THE 2ND RESPONDENT

EXHIBIT P9 TRUE COPY OF THE NEWSPAPER REPORT DATED 08.06.2020 OF MADHYAMAM DAILY WP(C) NO. 12566 OF 2020

EXHIBIT P10 TRUE COPY OF THE MADHYAMAM DAILY DATED 13.06.2020

EXHIBIT P11 TRUE COPY OF THE SKETCH PREPARED OF THE NEW POSITION OF THE SURVEY STONES

EXHIBIT P12 TRUE COPY OF THE APPEAL DATED 17.06.2020 SUBMITTED BY THE PETITIONER TO THE 8TH RESPONDENT

RESPONDENT EXHIBITS

EXHIBIT R10(A) TRUE COPY OF THE SALE DEED POSSESSED BY THESE RESPONDENTS VIDE DOCUMENT NO 4175/2006

EXHIBIT R10(B) TRUE COPY OF THE DOCUMENT POSSESSED BY THESE RESPONDENTS VIDE DOCUMENT NO 1104/2006

EXHIBIT R10(C) TRUE COPY OF THE REDIAL DISTANCE PETITIONER HOUSE TO KOTHETHODU MAP OBTAINED FROM THE GOOGLE

EXHIBIT R10(D) TRUE COPY OF THE PHOTOGRAPH SHOWING THE FLOOD HIT SITUATION OCCURED IN THE YEAR 2018 BY THESE RESPONDENTS

EXHIBIT R10(E) TRUE COPY OF THE SURVEY SKETCH AND REPORT BASED ON THE SURVEY CONDUCTED ON 15.6.2020

EXHIBIT R10(F) TRUE COPY OF THE COMPLAINT CMP NO 1741/2020

EXHIBIT R10(G) TRUE COPY OF THE EXPRESSION OF WILLINGNESS BY WAY OF LETTER DATED 3.6.2018 ISSUED TO THESE RESPONDENTS

EXHIBIT R10(H) TRUE COPY OF THE JUDGMENT DATED 29.6.2020 IN WPC NO 12449/2020 WP(C) NO. 12566 OF 2020

EXHIBIT R2(a) TRUE COPY OF THE PLAINT DATED 25.9.2020 FILED BY THE 10TH RESPONDENT AS OS NO 192/2020 ON THE FILE OF MUNSIFF COURT, TIRUR

EXHIBIT R2(B) TRUE COPY OF THE WRITTEN STATEMENT DATED 30.1.2021 FILE BY THE 2ND RESPONDENT MUNICIPALITY IN OS NO 192/2020 ON THE FILE OF MUNSIFF COURT, TIRUR