Kerala High Court
Muneer vs Ponmundam Grama Panchayath on 27 October, 2023
WP(C) NO. 15035 OF 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 27TH DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945
WP(C) NO. 15035 OF 2023
PETITIONER/S:
MUNEER
AGED 36 YEARS
S/O MUHAMMED KUTTY HAJI , NARANGAVIL HOUSE, PONMUNDAM,
PONMUNDAM P.O, TIRUR, MALAPPURAM DISTRICT.,, PIN - 676106
BY ADVS.
DEEPA NARAYANAN
K.SUJAI SATHIAN
GOURI MEEMPAT
SANGEETHA SREEKUMAR
RESPONDENT/S:
1 PONMUNDAM GRAMA PANCHAYATH,
PONMUNDAM P.O, TIRUR MALAPPURAM DISTRICT, REPRESENTED BY
ITS SECRETARY., PIN - 676106
2 THE SECRETARY,
PONMUNDAM GRAMA PANCHAYATH, PONMUNDAM P.O, TIRUR,
MALAPPURAM DISTRICT,, PIN - 676106
3 HARIFA METHIYIL,
D/O HASSANKOYA KALLIYATH, KALLIYATH HOUSE, ALREEF,
KALPPAKANJERI P.O, MALAPPURAM DISTRICT- 676 551. ADDL. R3
IS IMPLEADED AS PER ORDER DATED 30-09-2023 IN IA 1/2023 IN
WP(C) 15035/2023.
BY ADVS.
MANOJ RAMASWAMY Ramaswamy
P.T.SHEEJISH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 15035 OF 2023
2
BECHU KURIAN THOMAS, J.
========================
W.P.(C)No.15035 of 2023
------------------------------------------------
Dated this the 27th day of October 2023
JUDGMENT
Petitioner claims to be the owner of 9.68 Ares of property in
Re.Survey No.44/2/2, 44/2-4 and 44/2-5 of Ponmudam Village, Tirur Taluk,
Malappuram District. Claiming that an extent of 0.69 Ares of property is
used as a private way, for ingress and aggress to his properties, petitioner
constructed boundary wall.
2. According to the petitioner, the said boundary wall was constructed
over an existing wall to demarcate the pathway with the petitioner's
property. However, the Panchayat had, by a resolution dated 18.04.2023,
directed the petitioner to demolish the boundary wall, without affording an
opportunity of hearing or any notice, in purported exercise of powers under
Kerala Panchayat Raj (Removal of Encroachment and Imposition and
Recovery of Penalty for Unauthorised Occupation) Rules, 1996 ('the Rules'
for short). Pursuant to the said resolution dated 18.04.2023, the 2 nd
respondent has issued Ext.P3 notice directing the petitioner to demolish the
construction, failing which, it was threatened that the Panchayat shall use
its force to demolish the construction.
3. Petitioner alleges that the resolution of the Panchayat is without
authority of law and in violation of the principles of natural justice.
Petitioner contends that without a written notice, the Panchayat is not
WP(C) NO. 15035 OF 2023
entitled to order demolition of construction, especially since petitioner
alleges that the construction was made on an existing compounding wall
situated in his own property.
4. A counter affidavit has been filed by the 2 nd respondent alleging
that the decision was taken by the Panchayat after elaborately considering
all the issues and after notices were issued to the encroachers directly and
also by registered post and since there was a refusal to accept the notice, it
was affixed on the compound wall. It was further stated in the counter
affidavit that, initially when it was brought to the notice of the Panchayat
that a suit has been instituted, the proceedings to evict the encroachers
were stopped, awaiting the decision of the suit. Later on 22.02.2023, the
suit was dismissed, and it was only thereafter, that the proceedings have
been initiated, which culminated in Ext.P4.
5. Additional respondent No.3 has also filed a counter affidavit,
controverting the allegations in the writ petition, pointing out that 3 rd
respondent is one of the beneficiaries of the pathway, which has been
encroached upon by the petitioner and constructed the compound wall
there illegally.
6. I have heard Smt.Deepa Narayanan, learned Counsel for the
petitioner, Sri.Manoj Ramaswamy, learned Standing Counsel for the
Panchayat as well as Sri.P.T.Sheejish, learned Counsel for the 3 rd
respondent.
7. Though allegations and counter allegations are raised by the
parties, it is seen from Ext.P4 resolution of the Panchayat that notice to the
petitioner has not been specifically served on him. The resolution of the
Panchayat mentions that it was not evident as to who, exactly the
WP(C) NO. 15035 OF 2023
encroachers were. Now from the pleadings in the writ petition has become
evident that it was the petitioner, who had constructed the compound wall.
Necessarily, petitioner ought to be given a notice before a decision
regarding the demolition of the wall is taken.
8. Since concedely, petitioner has not been heard, nor an
opportunity of hearing been granted to him, I am of the view that it is
essential in the interests of justice that the Panchayat takes a decision
afresh after hearing the petitioner.
9. Therefore, Ext.P3 and P4 should be set aside to enable the
panchayat to take a fresh decision. Hence I set aside Ext.P3 and Ext.P4 and
direct the respondent-Panahayat to issue fresh notices to the petitioner as
well as to the additional 3rd respondent and take a decision after granting
an opportunity of hearing to both of them. Needless to mention, in case,
there is any dispute on the measurement, the Panchayat will be at liberty
to initiate appropriate steps to measure the property.
The writ petition is disposed of accordingly.
BECHU KURIAN THOMAS
JUDGE
jm/
WP(C) NO. 15035 OF 2023
APPENDIX OF WP(C) 15035/2023
PETITIONER EXHIBITS
Exhibit1 A .TRUE COPY OF THE DOCUMENT NO. 2921/2021
DT.01.10.2021 OF KALPAKANCHERRY SRO
Exhibit P2 A.TRUE COPY OF PHOTOGRAPHS(3 NUMBERS) EVIDENCE
IN THE PRESENT LIE OF THE PROPERTIES
Exhibit P3 A. TRUE COPY OF NOTICE STICKED ON THE BOUNDARY
WALL BY THE FIRST RESPONDENT PANCHAYAT REGARDING
THE DEMOLITION OF THE BOUNDARY WALL DATED
19.04.2023
Exhibit P4 A.TRUE COPY OF THE DECISION NO. 9 (1) OF THE
RESPONDENT DATED 18.04.2023
Exhibit P5 A. TRUE COPY OF THE LAWYER NOTICE ISSUED TO THE
RESPONDENT DATED 26.04.2023
RESPONDENT EXHIBITS
Exhibit R1 (a) True copy of the decision No.16(01) of the
panchayat committee meeting held on 22.11.2022
Exhibit R1 (b) True copy of the notice vide No. C1/2481/2022
dated 28.11.2022 issued by the 2nd respondent
Exhibit R1 (c) True copy of the reply dated 24.12.2022 issued
to the 2nd respondent
Exhibit R1 (d) True copy of the decision vide No.11(1) of the
panchayat committee meeting held on 03.12.2022
Exhibit R1 (e) True copy of the report vide No.
123/AE/LSGD/PNM/22-23 dated 31.03.2023 along
with the sketch submitted by the LSGD Assistant
Engineer
RESPONDENT EXHIBITS
Exhibit R3(a) TRUE COPY OF THE TITLE EXECUTED IN FAVOUR OF
THIS PETITIONER DATED 17/9/2016
Exhibit R3(b) TRUE COPY OF THE PANCHAYAT ASSET REGISTER
Exhibit R3(c) TRUE COPY OF CERTIFICATE OF TESTIMONY OF
SECRETARY OF PONMUNDAM GRAMA PANCHAYAT DATED
22/09/2022
Exhibit R3(d) TRUE COPY OF THE COMMISSION REPORT DATED
WP(C) NO. 15035 OF 2023
05/11/2022 IN O.S NO 260/2022 MUNSIFF'S COURT,
TIRUR
Exhibit R3(e) THE TRUE COPY OF THE PHOTOGRAPHS
Exhibit R3(f) TRUE COPY OF THE REPORT DATED 30-11-2022 GIVEN
BY THE SECRETARY OF PONMUNDAM GRAMA PANCHAYAT
Exhibit R3(g) TRUE COPY OF THE REPORT OF 19-11-2022
Exhibit R3(h) TRUE COPY OF THE MINUTES OF THE MEETING DATED
21/11/2022
Exhibit R3(i) TRUE COPY OF THE ORDER PASSED BY THE DISTRICT
COLLECTOR DATED 17-06-2022
Exhibit R3(j) TRUE COPY OF THE REPORT GIVEN BY THE SECRETARY
OF PONMUNDAM GRAMA PANCHAYAT TO THE PETITIONER
DATED 17-05-2023 ALONG WITH HIGH COURT ORDER AND
MINUTES OF THE PANCHAYATH
