Kerala High Court

K.Abdul Hameed vs The Kerala State Human Rights ... on 1 February, 2023

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
        THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                  &
        THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
WEDNESDAY, THE 1ST DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944
                    WP(C) NO. 39257 OF 2018
PETITIONER/S:

            K.ABDUL HAMEED
            AGED 61 YEARS
            S/O. KASIM, AKATHEPURAYIDATHIL, CIVIL STATION
            WARD, ALAPUZHA WEST VILLAGE, ALAPPUZHA DISTRICT -
            688 012, PHONE - 94977 12401.
            BY ADVS.
            S.KRISHNAMOORTHY
            SMT.NITHYA SUGUNAN


RESPONDENT/S:

    1       THE KERALA STATE HUMAN RIGHTS COMMISSION,
            REP. BY ITS REGISTRAR, TURBOT TOWER, PMG
            JUNCTION, VIKAS BHAVAN, TRIVANDRUM - 695 033.
    2       THE TAHSILDAR,
            OFFICE OF THE TALUK OFFICE, AMBALAPUZHA TALUK,
            AMBALAPUZHA.
    3       THE SECRETARY,
            ALAPUZHA MUNICIPALITY, ALAPUZHA - 688 001.
    4       ANIL KUMAR T.C.,
            THEYPARAMBIL, CIVIL STATION WARD, ALAPUZHA - 688
            012.
            BY ADVS.
            SRI.AZAD BABU, SC, ALAPPUZHA MUNICIPALITY
            SMT.PREMLATHA K.NAIR
            SRI. V. TEKCHAND, SR. GP.


     THIS    WRIT   PETITION    (CIVIL)     HAVING    COME    UP    FOR
ADMISSION    ON   01.02.2023,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W. P. (C) No. 39257 of 2018
                                     -2-




                              JUDGMENT

S. Manikumar, C. J.

Before the Kerala State Human Rights Commission, HRMP No.

2294 of 2015 has been filed by the residents of western side of Police

Gas Godown in Sakariya Ward, Alappuzha.

2. Sum and substance of the complaint has been summarized in

the order dated 03.06.2016 in HRMP No. 2294 of 2015, which is

reproduced:-

"Complainants are resident of in Western side of Police Gas Godown in Sakariya Ward, Alapuzha. The complaint is filed by the complainants stating that they were using a common well from years back and the opposite party demolished the same, though several complaints were made before the appropriate authorities no steps was taken by the authorities hence the common well has to be restored in its original stage."

3. After getting a report from the Additional Tahsildar,

Ambalappuzha as well as the Municipal Secretary, Alappuzha, the

Human Rights Commission, on 03.06.2016 in HRMP No. 2294 of

2015, has ordered thus:-

W. P. (C) No. 39257 of 2018

"It is reported that the property mentioned in the complaint was purchased by one Abdul Hameed as per sale deed No.261/91 and comprised in old survey nos.510/1A & 493/1A this was found on verification of reports. It found that a total extend of 6.52 Ares property belongs to the opposite party as per the document, however, as per the re-survey, the property is described as 7.30 Ares and the same is reported in BTR. Hence the property tax was paid in favour of the said party, however, as per the sale deed only 6.52 Ares was in the name of Abdul Hameed. It is told that in the excess land there was a public land and the earlier landlord had set apart the said property in years back for the construction of a well for the public and the public was using the said well however, the Municipal Secretary was given permission unauthorizely for filling the said well and to construct the building there. However, nobody stated that there was excess government land available. On enquiry, the neighbors had reported that there was a well in 1½ cent property and the earlier landlord keep area for said purpose. Recent time the well was filled with sand and trouble stone. It may be the property set apart for the public well by the earlier landlord could be the excess in the property owned by the opposite party.

Since the land found in the re-survey, was given by the earlier landlord, it is necessary to have a sub-division of the same and to be restored hence, the excess land found in the re-survey was given by earlier landlord for a public well the same has to be given in sub- division and step has to be taken to restore the same. W. P. (C) No. 39257 of 2018

It is directed that the report to that effect has to be given by the Additional Tahsildar, Ambalapuzha within a period of one month. It is also directed that till final decision is taken, to stop the construction which is carrying out in the excess land necessary steps has to be taken by the Municipal Secretary Alappuzha."

4. Being aggrieved, instant writ petition is filed on the grounds

inter alia contending that the power of the Kerala State Human Rights

Commission, the 1st respondent, is only to conduct enquiry of a

complaint preferred by a victim or any person for violation of the

Human Rights or abetment thereof or negligence in the prevention of

such violation is clearly stipulated under Section 12 of the Protection

of the Human Rights Act, 1993.

5. Petitioner has further contended that the term 'Human Right' is

clearly defined under Section-2(d) of the Act, which means rights

relating to Life, Liberty, equality of the individual guaranteed by the

Indian Constitution. The civil dispute is in respect of a property having

excess land is not at all a function of the State Human Rights

Commission and Ext. P6 order has to be set aside as the same is issued

without any authority.

W. P. (C) No. 39257 of 2018

6. It is also submitted that the petitioner's building is standing in

the entire area and the excess land, if any, was already purchased by

the petitioner from the previous owner. There was virivu in the land

and there was no well. There is no excess Government land in the

custody of the petitioner. At any rate, the Commission is having no

authority to decide on the same issue.

7. That apart, Mr. S. Krishnamoorthy, learned counsel for the

petitioner, submitted that no notice or opportunity of hearing was

given to the writ petitioner, before the impugned order was passed.

8. It is also the contention of the learned counsel for the

petitioner that construction of the building was already completed and

that petitioner resides in the building since 2015. Submission of the

learned counsel for the petitioner is placed on record.

9. Mr. V. Tekchand, learned Senior Government Pleader

appearing for the Tahsildar, Ambalappuzha, the 2 nd respondent,

submitted that construction of the building has been completed in the

year 2015 and occupancy certificate has been issued on 01.02.2015.

Submission of the learned Senior Government Pleader is placed on W. P. (C) No. 39257 of 2018

record.

10. Heard learned counsel for the parties and perused the

pleadings and material on record.

11. Though several contentions have been raised in the writ

petition assailing the correctness of the impugned order, we are not

inclined to delve into the same on merits. However, from a reading of

the order made in HRMP No. 2294 of 2015 dated 03.06.2016, it is

apparent that the said order has been passed solely after taking note of

the reports of the Additional Tahsildar, Ambalappuzha as well as the

Municipal Secretary, Alappuzha. There is no reference in the

impugned order as to whether the writ petitioner has been given an

opportunity to explain or rebut the averments made in the complaint.

Therefore, in our view, violation of natural justice is per se evident.

12. In the abovesaid circumstances, we are inclined to set aside

the impugned order. Hence, we do so. Matter is remitted back to the

Kerala State Human Rights Commission.

As the complaint is of the year 2015, Kerala State Human Rights

Commission is requested to disposed of the same, after providing an W. P. (C) No. 39257 of 2018

opportunity of hearing to all parties concerned, as expeditiously as

possible.

Accordingly, instant writ petition is disposed of.

Sd/-

S. MANIKUMAR CHIEF JUSTICE

Sd/-

MURALI PURUSHOTHAMAN JUDGE

///TRUE COPY/// P. A. TO JUDGE W. P. (C) No. 39257 of 2018

APPENDIX OF WP(C) 39257/2018

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT ALONG WITH THE PLAN APPROVED BY THE ALAPUZHA MUNICIPALITY.

EXHIBIT P2 TRUE COPY OF THE LAND TAX RECEIPT DATED 28.01.2016 ISSUED BY THE ALAPUZHA WEST VILLAGE EXHIBIT P2(A) TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P2.

EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.

32317/2014 DATED 03.12.2014.

EXHIBIT P4 COPY OF THE BUILDING TAX RECEIPT DATED 10.04.2018.

EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN THE O.S.

NO. 751/2015 DATED 29.07.2017 OF THE HON'BLE MUNSIFF'S COURT, ALAPUZHA.

EXHIBIT P6 TRUE COPY OF THE ORDER DATED 03.06. IN HRMP NO. 2294 OF 2015 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P6 (A) TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P6.