Thomaskutty @ Chellan vs Melila Grama Panchayath
2022 Latest Caselaw 652 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
     FRIDAY, THE 14TH DAY OF JANUARY 2022 / 24TH POUSHA, 1943
                       WP(C) NO. 17990 OF 2012
PETITIONER:

          THOMASKUTTY @ CHELLAN
          AGED 50 YEARS, S/O. CHACKO,
          KALLIMPURATHU VEEDU, VILOOR MURI,
          MELILA VILLAGE, KOTTARAKKARA TALUK, PIN-691 571.

          BY ADV SRI.SYAM J SAM


RESPONDENTS:

    1     MELILA GRAMA PANCHAYATH
          REP. BY SECRETARY, MELILA VILLAGE,
          KOTTARAKKARA TALUK, KOLLAM, PIN-691 571.

    2     THE VILLAGE OFFICER
          MELILA VILLAGE, KOTTARAKKARA TALUK, KOLLAM-691 571.

    3     THE TAHSILDAR
          KOTTARAKKARA TALUK, KOLLAM DISTRICT, PIN-691 571.

    4     THE DISTRICT COLLECTOR
          KOLLAM, KOLLAM DISTRICT-691 001.
    5     SHEEJA
          D/O. LILLYKUTTY, VAZHAVILA VEEDU, VILOOR MURI, MELILA
          VILLAGE, KOTTARAKKARA TALUK, PIN-691 571.

    6     CIRCLE INSPECTOR OF POLICE,
          PUNALUR, KOLLAM-691 333.

          BY ADVS.
          SRI.ALEXANDER GEORGE
          SRI.B.MOHANLAL
          SRI.K.M.FAISAL,GOVERNMENT PLEADER


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.17990 of 2012
                                    2


                             JUDGMENT

Dated this the 14th day of January, 2022

This writ petition is filed by the petitioner seeking the

following reliefs:

"I. to issue a writ of mandamus or any appropriate writ directing the 1st respondent to implement P2 order after declaring that P3 judgment is not an impediment to proceed with P2 order.

II. to issue a writ of mandamus or any appropriate writ directing the 4th respondent to assist the 1st respondent in repossessing the P1 pathway and by considering the Exhibit P4.

III. To issue a writ of mandamus against the first respondent to consider P5 request.

IV. to direct the 6th respondent to assist 1st respondent in repossessing the public pathway by considering Exhibit P6."

2. The sum and substance of the contention advanced in

the writ petition based on the revenue records and the

judgment in O.S.No.595 of 2010 of Munsiff Court,

Kottarakkara dated 7.12.2011 that the 5th respondent namely

Sheeja, D/o.Lillykutty, Vazhavila veedu, Viloor Muri, Melila

Village, Kottarakkara Taluk, has encroached into a public

property vested with the Panchayat. W.P.(C)No.17990 of 2012

3. In my considered opinion, going through the

pleadings it is quite clear and evident that the subject issue

raised by the petitioner is surrounded by various factual and

complex circumstances which can only be deciphered by a fact

finding body. As per Section 4A of the Kerala Survey and

Boundaries Act, 1961, the Secretary is vested with ample

powers to request the revenue authorities to measure out any

property if any complaint of encroachment is received. The

said provision reads thus:

"4A. Government may direct the survey and demarcation of any lands 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."

4. In that view of the matter and since there is a statutory

remedy available to the petitioner, it is for the petitioner to

pursue the remedy before the Panchayat authorities. W.P.(C)No.17990 of 2012

5. The 5th respondent as well as the Panchayat have filed

counter affidavits before this court. But in view of the fact

that the issue is surrounded by complex situations, I am not

traversing through the counter affidavits filed by the

respective parties. It is for the Secretary of the Grama

Panchayat to pursue appropriate remedy in accordance with

law taking into account the provision of law extracted above.

Therefore, this writ petition is disposed of leaving open

the liberty of the petitioner to approach the Secretary of the

1st respondent - Melila Grama Panchayat, Kottarakkara Taluk

and if any such application is received, the Secretary of the

Panchayat shall consider the same, after providing notice of

hearing and participation to all concerned and attain finality

at the earliest and at any rate within two months from the

date of receipt of the application from the petitioner.

Sd/-

Shaji P.Chaly Judge

vpv W.P.(C)No.17990 of 2012

APPENDIX

PETITIONER'S EXHIBITS:

EXT.P1: TRUE COPY OF THE ROAD REGISTER MAINTAINED BY THE 1ST RESPONDENT.

EXT.P2: TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DT. 23.12.2010.

EXT.P3: TRUE COPY OF THE JUDGMENT IN O.S.NO.595/2010 OF LEARNED MUNSIFF, KOTTARAKKARA.

EXT.P4: TRUE COPY OF THE REPRESENTATION GIVEN BY THE PETITIONER TO THE 4TH RESPONDENT ALONG WITH THE LETTER OF THE FIRST RESPONDENT.

EXT.P5: TRUE COPY OF THE REPRESENTATION GIVEN TO THE 1ST RESPONDENT.

EXT.P6: TRUE COPY OF THE REPRESENTATION GIVEN TO THE 6TH RESPONDENT.

//TRUE COPY//

P.A. TO JUDGE