Merlin Xavier vs The Azhoor Grama Panchayat
2022 Latest Caselaw 8342 Ker

                          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                PRESENT

                          THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

                                     ST
                     FRIDAY, THE 1        DAY OF JULY 2022 / 10TH ASHADHA, 1944


                                          WP(C) NO. 3606 OF 2016

PETITIONER:

              MERLIN XAVIER, S/O.M.XAVIER (LATE), NADUVATH VILAI, KARAKKAMANDAPAM,
              NAMOM P.O., THIRUVANANTHAPURAM, REPRESENTED BY HIS POWER OF ATTORNEY
              HOLER FRANKLIN XAVIER, S/O.M.XAVIER (LATE) T.C.54/654, SABITHA NIVAS,
              NADUVATH VILAI, KARAKKAMANDAPAM, NAMOM P.O., THIRUVANANTHAPURAM.

              BY ADVS.SRI.D.KISHORE
              SMT.MINI GOPINATH
              SMT.MEERA GOPINATH
              SRI.R.MURALEEKRISHNAN MALAKKARA


RESPONDENTS:

     1        THE AZHOOR GRAMA PANCHAYAT
              REPRESENTED BY SECRETARY, PERUNGUZHI P.O., THIRUVANANTHAPURAM,
              CHIRAYINKEEZHU, THIRUVANANTHAPURAM, PIN- 695 305.

              THE SECRETARY, AZHOOR GRAMA PANCHAYAT, PERUNGUZHI P O,
     2
              THIRUVANANTHAPURAM, CHIRAYINKEEZHU, THIRUVANANTHAPURAM, PIN 695 305.

              BY ADV SRI.BIJU BALAKRISHNAN




       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.07.2022, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 3606 OF 2016
                                        :: 2 ::




                                    JUDGMENT

Dated this the 1st day of July 2022

This writ petition is filed by the petitioner seeking the following

reliefs:

"a. issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents not to encroach into the property of the petitioner covered by Exhibits P1 and P2 or to develop/use any portion of it as a pathway, otherwise than through procedure established by law, as per the mandate of Article 300A of the Constitution of India.

b. issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents not to conduct any further operations/development in the property of the petitioner covered by Exhibits P1 and P2 for a period of two months so as to enable the petitioner to comply with the mandate of Section 249 of the Kerala Panchayat Raj Act and to institute a civil suit before a competent court."

2. The contentions advanced by the petitioner are as follows:

The petitioner is the title holder of 22 Ares and 60 square metres of

property in Re-Survey Number 222/5-1 of Azhoor village of Chirayinyinkil

Taluk of Thiruvananthapuram District by virtue of Deed No:2227 of 2008

of Murukkumpuzha Sub Registrar's Office. It is submitted that the

petitioner is residing abroad. There is a pathway having a width of two

links on the southern side of the petitioner's property. The case of the WP(C) NO. 3606 OF 2016 :: 3 ::

petitioner is that for widening the pathway, without resorting to any

procedure established by law, the Panchayat through a contractor

encroached into the property of the petitioner and has annexed a portion

of it to the pathway. The Panchayat is now attempting to develop the road

by tarring. There are no provisions in the Kerala Panchayat Raj Act or in

any other statute enabling the Panchayat or its officers to encroach into

the property of the third parties. According to the petitioner, since the

petitioner has not consented for surrendering his property, the only

option available to the Panchayat was to acquire the property as per the

provisions of the Land Acquisition Act. It is also submitted that as per

Section 249 of the Kerala Panchayat Raj Act, the petitioner can very well

file a suit against the Panchayat for recovery of possession of the property

and for declaration. However, as per Section 249(1)(a) of the Kerala

Panchayat Raj Act, one month notice in writing will have to be given to

the Panchayat before institution of a suit or other civil proceedings

against the Panchayat.

3. When the matter came up for admission before this court, an

interim order was passed on 29.1.2016 directing the Azhoor Grama

Panchayat and the Secretary - respondents 1 and 2 not to encroach upon WP(C) NO. 3606 OF 2016 :: 4 ::

the property of the petitioner for tarring or for the formation of the

pathway situated adjacent to the property of the petitioner. The

respondents have not filed any counter affidavit or statement before this

court.

4. In my considered opinion, the Panchayat or the Secretary of the

Grama Panchayat is not vested with any powers to forcibly enter into a

private property, take possession of the same and form a pathway or

widen a path way. Be that as it may, petitioner has not produced any

documents before this court to show that the Panchayat has attempted to

encroach into the property of the petitioner. There is no power to the

Panchayat to take law into hands and do things at its whims and fancies.

If the Panchayat wants to form or widen a road, it has to acquire property

in accordance with the mandates contained under the Kerala Panchayat

Raj Act, 1994 and the Rules constituted for disposal and acquisition of

properties. Since the sole apprehension pointed out by the petitioner in

this writ petition is forcible incursion to his property, I am of the view

that the writ petition can be disposed of by retaining the interim order

passed by this court on 29.1.2016.

WP(C) NO. 3606 OF 2016 :: 5 ::

5. Accordingly, after hearing learned counsel for the petitioner

Sri.D.Kishore, and Sri.Ajmal, learned counsel representing Sri.Biju

Balakrishnan, learned counsel appearing for respondents 1 and 2, this

writ petition is disposed of retaining the interim order passed by this

court as above and directing the Panchayat not to annex the property

of the petitioner without adhering to the provisions of law existing for

acquisition. However, I make it clear that if the Panchayat has any case

that any public property is involved in the property in question, it is for

the Panchayat to take appropriate action in accordance with law.

Writ petition is disposed of accordingly.

SD/-

SHAJI P. CHALY JUDGE jes WP(C) NO. 3606 OF 2016 :: 6 ::

APPENDIX

PETITIONER'S EXHIBITS:

EXT P1 TRUE COPY OF THE SALE DEED NO.2227/2008 DATED 03/10/2008.

EXT P2 TRUE COPY OF THE TAX RECEIPT DATED 07/10/2015.

EXT P3 TRUE COPIES OF THE PHOTOGRAPHS EVIDENCING THE ENCORACHMENT ON THE PETITIONER'S PROPERTY BY THE RESPONDENT PANCHAYAT.

// TRUE COPY //

P.S. TO JUDGE