Kerala High Court
A.Shajahan vs Cheruniyoor Grama Panchayat on 5 April, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
WP(C) NO. 16341 OF 2017
PETITIONER/S:
A.SHAJAHAN
AGED 46 YEARS, S/O.ABDUL VAHID,
MYLAMOOD VEEDU, VADASSERIKONAM P O,
VARKALA, THIRUVANANTHAPURAM.
BY ADVS.
SMT.SUMATHY DANDAPANI (SR.)
SRI.MILLU DANDAPANI
SRI.PREMCHAND R.NAIR
RESPONDENT/S:
1 CHERUNIYOOR GRAMA PANCHAYAT
CHERUNIYOOR, THIRUVANANTHAPURAM, PIN-695 142,
REPRESENTED BY ITS SECRETARY,
2 THE PRESIDENT
CHERUNIYOOR GRAMA PANCHAYATH, CHERUNIYOOR,
THIRUVANANTHAPURAM, PIN-695 142.
3 THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT
INSTITUTIONS, 4TH FLOOR, SAPHALYAM COMPLEX,
UNIVERSITY P O, PALAYAM,
THIRUVANANTHAPURAM, PIN-695 034.
BY ADV SRI.POOVAPPALLY M.RAMACHANDRAN NAIR
OTHER PRESENT:
SRI.RIYAL DEVASSY, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No.16341/2017
2
P.V. KUNHIKRISHNAN, J.
--------------------------------
W.P.(C).No.16341 of 2017
----------------------------------------------
Dated this the 05th day of April, 2024
JUDGMENT
This writ petition is filed with following prayers:
"i. call for the records leading to Exhibits- P 9 by
issuing a writ of certiorari, and set aside the same.
ii. issue a writ of mandamus or any other writ order
or direction directing the 1st and 2nd respondent
or their henchmen not to enter in to the 'thodu'
situates in the eastern side of the property of the
petitioner and do any activities there in.
iii. issue a writ of mandamus or any other writ order
or direction directing the 3rd respondent to
consider the OP No: 1822 of 2011 afresh and pass
appropriate orders.
iv. issue such other writ, order or direction as this
Hon'ble Court may deem fit in the facts and
circumstances of the case.
And
v. award costs".
[SIC]
2. Petitioner is aggrieved by the Ext.P9 order passed by
the 3rd respondent which is passed based on Ext.P3
complaint in which it is stated that the Panchayat is
trespassing into property of the petitioner and committed
waste by removing dry coconut plants and also increased
the width of the existing 'thodu'. Ext.P1 is the
representation submitted by the petitioner before the 1 st
respondent narrating his grievance. Since the 1 st
respondent has not taken any action, the petitioner
submitted another representation as evident by Ext.P2.
Thereafter, Ext.P3 was submitted before the Ombudsman
for Local Self Government Institutions. On receipt of notice
from the 3rd respondent, respondents 1 and 2 appeared
before the 3rd respondent and filed a counter. After
preliminary hearing, the 3rd respondent passed an order
directing the Tahsildar, Chirayinkeezhu to provide the
assistance of Taluk Surveyor and the Village records for
the purpose of locating the correct position of the ' thodu'
and its ridges. Ext.P4 is the order passed by the 3 rd
respondent. According to the petitioner, in total non -
compliance of Ext.P4, the property was measured by the
Taluk Surveyor. Therefore, the petitioner filed a petition
before the 3rd respondent with a prayer seeking a direction
to the 1st respondent to comply with Ext.P4 order. Ext.P5
is the petition filed before the 3 rd respondent. The 3rd
respondent after considering Ext.P5, issued Ext.P6 order
directing the 1st respondent to provide the report of the
Taluk Surveyor to the parties and after hearing the parties
to pass appropriate orders. It is submitted that on the
very next day, the 1st respondent passed an order stating
that the property has already been measured by the Taluk
Surveyor and it is clearly evident that the 'thodu' belongs
to the Panchayat and there is no encroachment to the
property of the petitioner. Ext.P7 is the statement filed by
the 1st respondent before the 3rd respondent. Ext.P8 is the
report and resurvey sketch. According to the petitioner, it
is mentioned in the report that even though, there is a
'thodu' in existence, in the resurvey sketch ' thodu' is not
marked. According to the petitioner, it is evident from the
resurvey sketch that the 'thodu' which is claimed to be in
existence, is flowing through the eastern side of the
property of the petitioner. Subsequently, relying on Ext.P7
report the 3rd respondent passed Ext.P9 report, is the
submission. According to the petitioner, there is a stream
passing through the eastern boundary of the property of
the petitioner, to which the Panchayat has no right.
Nowhere in the resurvey sketch, it is mentioned that there
is a 'thodu' and it belongs to the 1 st respondent Panchayat.
The grievance of the petitioner is that during rainy season
the 1st respondent has been digging the ' thodu' and
increasing the width and depth of the ' thodu'. These
activities are causing severe hardships to the petitioner,
as the eastern boundary of the property is getting slid,
thereby causing erosion of soil. It is further submitted that
under the guise of cleaning the 'thodu', the 1st respondent
Panchayat is trespassing into the property of the
petitioner. Hence this writ petition is filed challenging
Ext.P9 report.
2. Heard the learned Counsel for the petitioner and
the learned Standing Counsel appearing for the
Panchayat. I also heard the learned Government Pleader.
3. According to the petitioner, the ' thodu' situated
in the property belongs to the petitioner. The Panchayat
claims that it belongs to the Panchayat. I am of the
considered opinion that the Ombudsman cannot decide
this issue and it is the matter to be decided by a
competent Civil Court. This Court also is not in a position
to decide this disputed facts invoking power under Article
226 of the Constitution of India. Therefore, the impugned
order passed by the Ombudsman can be set aside and the
petitioner can be allowed to approach a competent Civil
Court to redress his grievance.
4. When this writ petition came up for
consideration on 16.05.2017, there was a direction to the
respondents to maintain the status quo and that order is
in force. The Status quo order can be allowed to be
continued for a period of 60 days, mainly for the
petitioner, who can approach the competent Civil Court to
redress the grievance, if any.
Therefore, this writ petition is disposed of with
following directions.
I. Ext.P9 is set aside.
II. The petitioner is free to approach the
competent Civil Court to redress his
grievance.
III. To facilitate the petitioner to approach
the competent Civil Court, the status
quo shall be maintained by both
parties regarding property in dispute
for a period of 60 days.
Sd/-
P.V. KUNHIKRISHNAN
JUDGE
JV &
S.M.K.
APPENDIX
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE PETITIONER BEFORE THE IST RESPONDENT DTD
14/11/2011
EXHIBIT P2 TRUE COPY OF THE REPRESENTATION SUBMITTED
BEFORE THE IST AND 2ND RESPONDENT DTD
8/12/2011
EXHIBIT P3 TRUE COPY OF THE ORIGINAL PETITION NO
1822/2011 DTD 20/12/2011
EXHIBIT P4 TRUE COPY OF THE ORDER PASSED BY THE 3RD
RESPONDENT DTD 8/02/2012
EXHIBIT P5 TRUE COPY OF THE PETITION FILED BY THE
PETITIONER BEFORE THE 3RD RESPONDENT DTD
20/8/2013
EXHIBIT P6 TRUE COPY OF THE ORDER ISSUED BY THE 3RD
RESPONDENT DTD 30/1/2014
EXHIBIT P7 TRUE COPY OF THE STATEMENT FILED BY THE IST
RESPONDENT BEFORE THE 3RD RESPONDENT DTD
4/11/2013
EXHIBIT P8 TRUE COPY OF THE REPORT AND THE RESURVEY
SKETCH
EXHIBIT P9 TRUE COPY OF THE ORDER PASSED BY THE 3RD
RESPONDENT DTD 6/11/2014.
