Mammen Varghese vs State Of Kerala
2022 Latest Caselaw 8126 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
         THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
   FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                 WP(C) NO. 35176 OF 2015
PETITIONER:


         SHAJAN. C. VARGHESE
         AGED 52 YEARS
         S/O.LATE C.C.VARGHESE,
         CHERIYATHU HOUSE,
         KOIPURAM P.O.,
         PATHANAMTHITTA DISTRICT - 689 531.

         BY ADVS.SRI.V.PHILIP MATHEW
                 SRI.JEPH JOSEPH
RESPONDENTS:

    1    STATE OF KERALA
         REPRESENTED BY ITS SECRETARY,
         DEPARTMENT OF REVENUE,
         KERALA GOVERNMENT SECRETARIAT,
         THIRUVANANTHAPURAM-695 001.

    2    DISTRICT COLLECTOR
         PATHANAMTHITTA - 689 645.

    3    REVENUE DIVISIONAL OFFICER
         REVENUE DIVISIONAL OFFICE,
         THIRUVALLA,
         PATHANAMTHITTA DISTRICT - 689 101.

    4    ADDITIONAL TAHSILDAR, TALUK OFFICE
         THIRUVALLA, PATHANAMTHITTA DISTRICT - 689 101.

    5    VILLAGE OFFICER, KOIPURAM
         PATHANAMTHITTA DISTRICT - 689 531.

    6    KOIPURAM GRAMA PANCHAYAT
         KOIPURAM GRAMA PANCHAYAT OFFICE, PULLAD P.O,
         THIRUVALLA PATHANAMTHITTA DISTRICT - 689 548,
         REPRESENTED BY ITS SECRETARY.
 W.P.(C.) Nos. 35176/2015 & 8616/2016
                                       2


     7       THE SECRETARY
             KOIPURAM GRAMA PANCHAYAT,
             KOIPURAM GRAMA PANCHAYAT OFFICE,
             PULLAD P.O,
             THIRUVALLA, PATHANAMTHITTA DISTRICT - 689 548.

     8       JIJU VARGHESE MAMMEN
             S/O.MAMMEN VARGHESE,
             THENGONE HOUSE,
             KOIPURAM P.O.,
             PATHANAMTHITTA DISTRICT - 689 531.

     9       MAMMEN VARGHESE @ KUNJUMON (T.M.VARGHESE)
             THENGONE HOUSE, KOIPURAM P.O.,
             PATHANAMTHITTA DISTRICT - 689 531.

             R1 TO R5 BY SRI.K.P.HARISH,SENOR GOVERNMENT
             PLEADER
             BY ADV.SRI.VENUGOPAL.M.R.
             R6 & R7 BY ADVS. SRI.S.JAYAKRISHNAN
                               SRI.S.PARAMESWARA PRASAD
             R9 BY SRI.JENNIS STEPHEN
                   SRI.SANTHOSH MATHEW
                   SRI.ARUN THOMAS
                   SRI.ALPHIN ANTONY
             SRI.VIJAY V. PAUL
             DHANYA P.ASHOKAN(K/001671/2000)




         THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 01.07.2022, ALONG WITH WP(C).No.8616/2016, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C.) Nos. 35176/2015 & 8616/2016
                                          3




             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                       PRESENT
             THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
    FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                         WP(C) NO. 8616 OF 2016
PETITIONER:

             MAMMEN VARGHESE @
             AGED 75 YEARS
             THENGONE HOUSE,
             KOIPURAM P.O.,
             PATHANAMTHITTA DISTRICT - 689 531.

             BY ADVS.SRI.ARUN THOMAS
                     SRI.ALPHIN ANTONY
                     SRI.JENNIS STEPHEN
                     SRI.SANTHOSH MATHEW
                     SRI.VIJAY V. PAUL


RESPONDENTS:

     1       STATE OF KERALA
             REPRESENTED BY ITS SECRETARY TO
             GOVERNMENT,DEPARTMENT OF REVENUE,
             GOVERNMENT SECRETARIAT,
             THIRUVANANTHAPURAM - 695 001.

     2       DISTRICT COLLECTOR,
             PATHANAMTHITTA - 689 645.

     3       REVENUE DIVISIONAL OFFICER
             REVENUE DIVISIONAL OFFICE,
             THIRUVALLA,
             PATHANAMTHITTA DISTRICT - 689 101.

     4       TALUK SURVEYOR
             TALUK OFFICE,
             THIRUVALLA
             PATHANAMTHITTA DISTRICT - 689 101.

     5       VILLAGE OFFICER KOIPURAM,
             PATHANAMTHITTA
             DISTRICT - 689 531.
 W.P.(C.) Nos. 35176/2015 & 8616/2016
                                       4


     6       KOIPURAM GRAMA PANCHAYATH
             KOIPURAM GRAMA PANCHAYATH OFFICE,
             PULLAD P.O.,
             THIRUVALLA, PATHANAMTHITTA,
             DISTRICT - 689 548,
             REPRESENTED BY ITS SECRETARY.

     7       ASSISTANT ENGINEER
             LSGD, KOIPURAM GRAMA PANCHAYATH,
             KOIPURAM GRAMA PANCHAYATH OFFICE,
             PULLAD P.O.,
             THIRUVALLA,
             PATHANAMTHITTA DISTRICT - 689 548.

     8       SHAJAN C.VARGHESE
             AGED 52 YEARS
             S/O.LATE C.C.VARGHESE,
             CHERIYATHU HOUSE,
             KOIPURAM P.O.,
             PATHANAMTHITTA DISTRICT -689 531.

             R1 TO R5 BY SRI.K.P.HARISH,SENOR GOVERNMENT
             PLEADER
             R6 BY SMT.P.K.PRIYA
             R8 BY ADVS.SRI.V.PHILIP MATHEW



         THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 01.07.2022, ALONG WITH WP(C).No. 35176/2015, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C.) Nos. 35176/2015 & 8616/2016
                                         5




                                  JUDGMENT

W.P.(C.) No. 35176/2015 is filed by the petitioner

seeking the following reliefs:-

"i) Issue a writ of mandamus or other appropriate writ, order or direction commanding respondents 2 to 7 to take immediate action to remove the encroachments made by respondents 8 and 9 into the Panchayat road/Puramboke in Survey No. 339/10 of Koipuram Village, Thiruvalla Taluk, Pathanamthitta District as evident from Ext.P4 for sketch and Ext. P5 report.

ii) Issue a writ of mandamus or other appropriate writ, order or direction commanding respondents 2 to 5 to take action against Respondents 8 and 9 based on the findings and conclusions in Exts.P4 to P6

iii) Issue a writ of mandamus or other appropriate writ, order or direction commanding 7th respondent to take further action against the constructions made by Respondents 8 and 9 based on Ext.P11 report of the Assistant Engineer, Local Self Government Department, Koipuram Panchayat."

2. W.P.(C.) No. 8616/2016 is filed by the

petitioner seeking the following reliefs:-

"i) Call for records leading to Exhibit P1 and P2 and issue a writ of certiorari for quashing the same;

ii) Call for the records leading to Exhibit P6 and issue a writ of certiorari for quashing the same;"

W.P.(C.) Nos. 35176/2015 & 8616/2016

3. Apparently, the challenge made by the

petitioner in W.P.(C.) No. 8616/2016 is against

Ext.P1 Survey Sketch of the Taluk Surveyor of the

Thiruvalla Taluk, Koipuram Village and Ext.P2 report

of the Taluk Surveyor dated 26.02.2015 wherein it

is stated that the encroachment made by the

petitioner is clearly demarcated in the sketch and

Ext.P6 report prepared by the Assistant Engineer,

Local Self Government Department, Koipuram

Grama Panchayat wherein it is stated that the

petitioner has not maintained three meters

distance from the road to the building. According to

the petitioner, the measurement was carried out by

the Revenue Authorities as well as the Assistant

Engineer, Local Self Government Department,

without providing notice of hearing to the

petitioner. It is thus submitted that the entire action

of the Revenue as well as the other authorities are W.P.(C.) Nos. 35176/2015 & 8616/2016

arbitrary and illegal and liable to be interfered with

by this Court under Article 226 of the Constitution

of India.

4. On the other hand, the petitioner in W.P.

(C.) No. 35176/2015 seeks implementation of the

demarcation made as per Exts. P1 and P2 (in W.P.

(C.) No. 8616/2016) and Ext. P6 report of the

Assistant Engineer, Local Self Government

Department. I do not propose to go into a detailed

deliberation of the matter since the learned counsel

for the petitioner in W.P.(C). No. 35176/2015 also

submitted that a measurement can be conducted

after providing an opportunity of participation to

the petitioner in W.P.(C.) No. 8616/2016.

5. I have heard the learned counsel for the

petitioners and the learned Government Pleader

and perused the pleadings and materials on record. W.P.(C.) Nos. 35176/2015 & 8616/2016

6. Taking into account the rival submissions

made and the reliefs sought for by the petitioner in

W.P.(C.) No. 8616/2016 that the impugned survey

sketch and the reports has to be interfered with

since they are drawn without the presence of the

petitioner therein, it is only appropriate that an

opportunity is provided to the petitioner therein to

participate in the survey proceedings and thereby,

finalise the proceedings to the satisfaction of all

concerned.

7. Therefore, I set aside Exts.P1 survey

sketch and P2 report (in W.P.(C.) No. 8616/2016)

and direct the Taluk Surveyor to conduct the

measurement of the property in question, after

providing notice to the petitioners in both the writ

petitions and finalise the proceedings, at the

earliest, at any rate, within three months from the

date of receipt of a copy of this judgment. The W.P.(C.) Nos. 35176/2015 & 8616/2016

parties will be guided by the survey sketch

prepared by the Taluk Surveyor and any report

drawn accordingly.

The writ petitions are disposed of as above.

Sd/-

SHAJI P. CHALY JUDGE

DCS/01.07.2022 W.P.(C.) Nos. 35176/2015 & 8616/2016

APPENDIX OF W.P.(C.) No. 35176/2015

PETITIONER EXHIBITS

Exhibit P1 COPY OF REPRESENTATION DATED 02.07.2014 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

Exhibit P2 P2 - COPY OF REPRESENTATION (C8-

4326/14) DATED NIL SUBMITTED BY THE PETITIONER BEFORE THE 7TH RESPONDENT

Exhibit P3 P3 - COPY OF BUILDING PERMIT DATED 04.11.2014

Exhibit P4 COPY OF THE SKETCH PREPARED BY THE TALUK SURVEYOR

Exhibit P5 COPY OF REPORT SUBMITTED BY THE TALUK SURVEYOR.

Exhibit P6 COPY OF COMMUNICATION DATED 06.03.2015 ISSUED BY THE 4TH RESPONDENT TO THE 7TH RESPONDENT.

Exhibit P7 COPY OF COMMUNICATION DATED 18.03.2015 ISSUED BY THE 7TH RESPONDENT TO THE 8TH RESPONDENT.

Exhibit P8 COPY OF REPRESENTATION DATED 19.03.2015 SUBMITTED BY THE PETITIONER TO THE 7TH RESPONDENT.

Exhibit P9 COPY OF REPRESENTATION DATED 29.04.2015 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

Exhibit P10 COPY OF COMMUNICATION NO.B3-4811/14 DATED 01.01.2015 ISSUED BY THE 3RD RESPONDENT

Exhibit P11 COPY OF THE REPLY DATED 14.10.2015 FROM THE 7TH RESPONDENT UNDER THE RIGHT TO INFORMATION ACT.

W.P.(C.) Nos. 35176/2015 & 8616/2016

RESPONDENTS EXHIBITS

Exhibit R9(A) TRUE COPY OF THE COMMISSIONER'S REPORT IN O.S. NO. 169 OF 2015

Exhibit R9(B) TRUE COPY OF THE CERTIFICATE ISSUED BY THE KOIPURAM GRAMA PANCHAYAT DATED 15.12.2015

Exhibit R9(C) TRUE COPY OF THE CORRECTED PLAN SUBMITTED BEFORE THE PANCHAYAT FOR APPROVAL BY THE PETITIONER.

APPENDIX OF W.P.(C.) No. 8616/2016

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE SKETCH PREPARED BY THE TALUK SURVEYOR OBTAINED FROM WPC NO.35176/2015

Exhibit P2 TRUE COPY OF THE REPORT OF THE TALUK SURVEYOR

Exhibit P3 TRUE COPY OF THE ADVOCATE COMMISSIONER'S REPORT IN OS NO.169 OF

Exhibit P4 TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE 6TH RESPONDENT

Exhibit P5 TRUE COPY OF THE CORRECTED FINAL PLAN SUBMITTED BEFORE THE 6TH RESPONDENT FOR APPROVAL BY THE PETITIONER

Exhibit P6 TRUE COPY OF THE REPORT DATED 3.8.2015 SUBMITTED BY THE 7TH RESPONDENT