Kerala High Court
Joby Joseph vs Kumarakom Grama Panchayath on 6 January, 2023
W.P.(C) No.24737/2016 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 6TH DAY OF JANUARY 2023 / 16TH POUSHA, 1944
WP(C) NO. 24737 OF 2016
PETITIONER:
JOBY JOSE
AGED 41 YEARS
KARIKANAMTHARA, KUMARAKOM,KOTTAYAM - 686 563.
BY ADV SRI.SURIN GEORGE IPE
RESPONDENT:
KUMARAKOM GRAMA PANCHAYATH
KUMARAKOM, REPRESENTED BY ITS SECRETARY KUMARAKOM,
KOTTAYAM - 686 653.
BY ADV.
SRI.ATHUL SHAJI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.01.2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.24737/2016 2
JUDGMENT
Dated this the 6th day of January, 2023
This writ petition is filed by the petitioner challenging Exhibit P3 notice issued
by the Secretary of the Kumarakam Grama Panchayat as per the provisions of the
Kerala Panchayat Raj (Removal of encroachment and imposition and recovery of
Penalty of Unauthorised Occupation) Rules, 1996 and for a declaration that the
petitioner has not made any encroachment into the property belonging to or
vested with the Panchayat.
2.When Exhibit P3 notice was issued, petitioner has submitted Exhibit P4
objection before the Secretary of the Grama Panchayat dated 28.6.2016. It is
apprehending forcible eviction that the petitioner has filed this writ petition.
3. The Panchayat has filed a detailed counter affidavit contending as follows:
"4. The impugned notice has been issued based on the report of the
Taluk Surveyor specifically pointing out that the petitioner has encroached
upon the thodu puramboke which lies contiguous to the registered holdings
stand in the name of his father in Resurvey No.17/10. The encroachment
has been reported to be in a width of 2.8 meters from the south western
corner and in a width of 2 meters from south to north direction and at a
length of 62 meters. The construction made in the land thus encroached
upon is unauthorized and liable to be demolished. The report of the Taluk
Surveyor, along with the sketch has been forwarded to the Panchayath by
the Additional Tahsildar, Kottayam as per covering letter dated 08.03.2016
True copy of the covering letter dated 08.03.2016, along with report of the
Taluk Surveyor and the sketch is produced here with and marked as Exhibit-
R1(a). Thereafter, the Additional Tahsildar, Kottayam, by communication
dated 23.05.2016 has requested the Panchayat to evict the petitioner and
other encroachers. True copy of the communication dated 23.05.2016 of the
Additional Tahsildar, Kottayam is produced here with and marked as Exhibit-
R1(b)
5. It was in compliance with the request in Exts-R1(a) and R1(b) that Ext-P3
notice has been issued. Though the encroachment has been duly reported,
still the petitioner was asked to submit objections, if any, in this regard.
However, without making any specific reply the petitioner has chosen to
approach this Hon'ble Court after furnishing a vague, cryptic and evasive
reply, Ext-P4. The writ petition is therefore, highly misconceived and not
maintainable.
6. It is pertinent to submit here that the properties in question were
measured out and encroachment of Government land was noticed as above
pursuant to a complaint filed by one Jify Felix. However, the petitioner has
not made either the revenue authorities, or the complainant as parties in the
present writ petition. The writ petition is liable to be dismissed on that
reason as well.
7. The petitioner has approached this Hon'ble Court without any cause of
action. In view of the facts mentioned above various averments made in the
writ petition are contrary to fact and truth. There is no illegality or
irregularity in issuing Ext-P3 notice. The Panchayat is duty bound to evict
the encroachments referred to above. The allegation of violation of
principles of natural justice is demonstrably baseless."
4. I have heard, learned counsel for the petitioner Sri.Surin George Ipe,
Sri.Athul Shaji for the Kumarakom Grama Panchayat and perused the pleading
and documents on record.
5. On a perusal of the Exhibit P3 notice, as contended by the learned counsel
for petitioner, it is a composite notice issued under Rule 4 and, sub-rules (1) to
(3) of Rule 5 of the Rules, 1999. Rules 4 and 5 of the Rules, 1999 read as
follows:
"4. Eviction of unauthorised occupants.- The Panchayat shall have
absolute authority to evict unauthorised occupants from the land
belonging to or vested with the Panchayat, besides the procedure
provided under sub-rules (2) to (6) of Rule 3. On such eviction if any
building, crops or other products, raised on the land unauthorisedly
occupied by the occupant that shall be forfeited to the Panchayat and the
unauthorised occupant shall have no right over them.
5. Procedure for eviction.- (1) The Panchayat shall serve fifteen days'
notice to the occupant before evicting that person from the land
belonging to or vested with the Panchayat. A brief description of land
unauthorisedly occupied and the reason for eviction shall be specially
mentioned in that notice.
(2) The Panchayat shall examine the objection if any, received, to the
notice mentioned under sub-rule (1). If it appears to the Panchayat that
the objection is not satisfactory or the matters stated therein are
unsustainable in law, a second notice shall be served to the occupant and
he shall be required therein to vacate the unauthorisedly occupied land
within one week after the receipt of the notice.
(3) If the unauthorised occupant is not vacating even after the receipt of
notice mentioned under sub-rule (2) the Panchayat may evict such person
and if assistance of police is required for this purpose the assistance of
police may be sought under sub-section (1) of Section 352 of the Act and
the police shall provide assistance."
6. On a perusal of Rule 5(2), it is categoric and clear that the rule
contemplates two notices. On the first notice, the aggrieved person is entitled as
of right to submit an objection. The said objection filed by the aggrieved person is
to be verified by the Secretary and on being dissatisfied with the same alone,
second notice shall be served to the aggrieved person directing him to vacate the
unauthorisedly occupied land within one week, after service of notice. Sub-rule
(3) thereto clearly states, if the unauthorised occupant is not vacating the
premises after receipt of second notice, the Panchayat is vested with powers to
evict the person, if required with the Police assistance. Considering the rules as
above, it is clear that the Panchayat has not adhered to the rules 4 and 5 of the
Rules, 1999.
7. In that view of the matter, I am of the clear and considered opinion that
Exhibit P3 notice is arbitrary and illegal, liable to be interfered with under Article
226 of the Constitution of India.
8. Accordingly, Exhibit P3 is quashed; however, the Panchayat is left with the
liberty to issue a fresh notice in contemplation of rules 4 and 5 of the Rules, 1999
and proceed in accordance with law.
Sd/-
SHAJI P.CHALY
smv JUDGE
APPENDIX OF WP(C) 24737/2016
PETITIONER EXHIBITS
EXHIBIT P1 COPY OF THE POSSESSION CERTIFICATE ISSUED BY KUMARAKOM
VILLAGE OFFICER, DATED 29.6.2016.
EXHIBIT P2 COPY OF SURVEY MAP OF THE PETITIONER'S PROPERTY
COMPRISED IN RE-SY. NO.17/10-2 OF KUMARAKOM VILLAGE.
EXHIBIT P3 COPY OF NOTICE ISSUED BY THE PANCHAYATH, DATED
23.6.2016.
EXHIBIT P4 COPY OF THE OBJECTION FILED BY THE PETITIONER DATED
28.6.2016.
RESPONDENT'S EXHIBITS
EXHIBIT - R1(a) TRUE COPY OF THE COVERING LETTER OF THE ADDL.TAHSILDAR
DATED 8.3.2016 ALONG WITH REPORT OF THE TALUK SURVEYOR
AND THE SKETCH HAS BEEN FORWARDED TO THE PANCHAYAT.
EXHIBIT - R1(b) TRUE COPY OF THE COMMUNICATION DATED 23.05.2016 OF THE
ADDITIONAL TAHSILDAR, KOTTAYAM.
