Kerala High Court
Vishnushankar K.T vs Feroke Municipality on 28 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
WP(C) NO. 35696 OF 2022
PETITIONER:
SOCIAL SERVICE ORGANIsATION FEROKE TOWN,
5/349A, FEROKE P O, KOZHIKODE-673 631,
REPRESENTED BY ITS SECRETARY,
K. BHARATHAN, S/O KRISHNANKUTTY, AGED 76 YEARS,
RESIDING AT KILIYANKANDY HOUSE, FEROKE P.O.,
KOZHIKODE-673 631.
BY ADVS.
P.J.MATHEW
EBIN MATHEW
AKHILA SHOJI
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY,
LOCAL SELF GOVERNMENT DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN- 695 001.
2 THE DIRECTOR OF MUNICIPALITIES,
THIRUVANANTHAPURAM - 695 003.
3 THE DISTRICT COLLECTOR,
KOZHIKODE, CIVIL STATION P.O.,KOZHIKODE- 673 020.
4 ASSISTANT COMMISSIONER OF POLICE,
OFFICE OF ASSISTANT COMMISSIONER,
FEROKE SUB-DIVISION, FEROKE P.O.,
KOZHIKODE - 673 631.
5 FEROKE MUNICIPALITY,
REPRESENTED BY ITS SECRETARY, FEROKE P.O.,
KOZHIKODE - 673 631.
W.P.(C)No.35696 OF 2022 and 36122 of 2023
2
6 THE CHAIRMAN,
FEROKE MUNICIPALITY, FEROKE P.O.,
KOZHIKODE - 673 631.
7 KUNDAYITHADAM KIZHAKKETHODI PATTIKAJATHI COLONY
COMMITTEE,
REPRESENTED BY ITS SECRETARY,
VISHNUSHANKAR K.T., SHANKARNILAYAM,
KIZHAKKETHODI, FEROKE P.O.KOZHIKODE-673 631.
8 K.T. BABURAJAN,
S/O.AYYAPPAN, KUNDAYITHADAM HOUSE, FEROKE P.O.,
PIN - 673 631, KOZHIKODE.
9 K.T.SIVAN,
S/O SEKHARAN,SIVALEELA, KUNDAYITHADAM,
FEROKE P.O., PIN - 673 631.
BY ADVS.
P.A.MOHAMMED SHAH
Aathira Sunny
SAIJO HASSAN(K/349/2001)
RAFEEK. V.K.(K/134/2003)
OTHER PRESENT:
SRI.DEVI SHRI R., GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 28.06.2024, ALONG WITH WP(C)No.36122/2023, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.35696 OF 2022 and 36122 of 2023
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
WP(C) NO. 36122 OF 2023
PETITIONERS:
1 VISHNUSHANKAR K.T.,
AGED 30 YEARS,
SHANKARANILAYAM, KIZHAKKETHODI, FEROKE P.O.,
KOZHIKODE, PIN - 673 631.
2 BABURAJAN K.T.,
AGED 78 YEARS, S/O. AYYAPPAN,
KUNDAYITHADAM HOUSE, FEROKE P.O.,
KOZHIKODE, PIN - 673631.
3 SIVAN K.T.,
AGED 55 YEARS, S/O. SEKHARAN,
SIVALEELA, KUNDAYITHADAM, FEROKE P.O.,
KOZHIKODE, PIN - 673 631.
BY ADVS.
SAIJO HASSAN
BENOJ C AUGUSTIN
AATHIRA SUNNY
RAFEEK. V.K.
RESPONDENTS:
1 FEROKE MUNICIPALITY,
REPRESENTED BY ITS SECRETARY, FEROKE P.O.,
KOZHIKODE, PIN - 673 631.
2 SOCIAL SERVICE ORGANISATION FEROKE TOWN,
5/349 A, FEROKE P.O., KOZHIKODE- 673 631,
REPRESENTED BY ITS SECRETARY, K. BHARATHAN,
S/O. KRISHNANKUTTY, AGED 76 YEARS,
RESIDING AT KILIYANKANDY HOUSE, FEROKE P.O.,
KOZHIKODE, PIN - 673 631.
W.P.(C)No.35696 OF 2022 and 36122 of 2023
4
BY ADVS.
SMT. DEVI SHRI R.- GOVERNMENT PLEADER
SHRI.P.A.MOHAMMED SHAH, STANDING COUNSEL,
FEROKE MUNICIPALITY
EBIN MATHEW
AKHILA SHOJI
P.J.MATHEW
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 28.06.2024, ALONG WITH WP(c)No.35696/2022, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.35696 OF 2022 and 36122 of 2023
5
MOHAMMED NIAS C.P., J.
---------------------------------
W.P.(C). No. 35696 of 2022 &
W.P.(C). No. 36122 of 2023
---------------------------------
Dated this the 28th day of June, 2024
JUDGMENT
The petitioner is a social service organization
registered under the Societies Registration Act XXI of 1860
having its office within the Feroke Panchayath. They
contend that as per the approved bye-law, the purpose of
the society is to undertake social welfare measures
including efforts to implement modern cremation facilities
considering the needs of those who are suffering from lack
of space and facilities. Feroke Municipality owns 80 cents of
land in Feroke village being used as a burning burial ground
and in 1976, 50 cents of land was acquired for the
expansion of the burning and burial ground. The further
contention is that the 7th respondent trespassed into the
burning and burial ground and also obstructed the road to
W.P.(C)No.35696 OF 2022 and 36122 of 2023
the burial ground.
2. As the Municipality did not take any effective
steps to evict the encroachers, the petitioner approached
this Court by filing W.P.(C) No.32672 of 2016 wherein by
judgment dated 27.7.2017, recorded the undertaking of the
Municipality that the encroachments if any, would be looked
into and proceeded after due notice to the said
encroachers. Recording the aforesaid undertaking, the writ
petition was disposed of by Ext.P2 judgment. The petitioner
submits that no action was taken which made him file a
Contempt case, Cont. Case (C) No.1890 of 2017, which was
closed by judgment dated 31.10.2017, again recorded the
submission of the learned Counsel for the Municipality that
due proceedings were taken in accordance with the
judgment and since notices had to be issued, it was taking
time. The 8th & 9th respondents herein, the alleged
encroachers, had filed W.P.(C). No.40058/2018, in which
case the Municipality had filed a counter stating that there
is encroachment and steps are on to modernise the burial
W.P.(C)No.35696 OF 2022 and 36122 of 2023
ground into a crematorium. The said writ petition was
disposed of on 06.11.2019 directing the Municipality to
consider the notice issued to the petitioners therein as
show cause notice and to pass appropriate orders after
hearing the writ petitioner herein and to take a final
decision as directed in Ext.P2 Judgment. The order so
passed dated 28.02.2020, marked as Ext.P6. The writ
petitioner in W.P.(C) No.35696 of 2022 seeks
implementation of the same.
3. A counter affidavit has been filed by the 7 th
respondent claiming title over 35 cents of land. The
Municipality has also filed a counter, that steps were
already taken and that final orders were passed finding the
encroachment, but were prevented from executing the
orders passed. Complaints were given to the Police against
interfering with their official duty. They had to return
fearing further law and order problems.
4. W.P.(C) No.36122 of 2023 is filed by three
persons, including respondents 8 & 9 in W.P.(C) No.35696
W.P.(C)No.35696 OF 2022 and 36122 of 2023
of 2022, on 17.10.2023, more than 3 years after the
passing of Ext.P6 order in W.P.(C) No.35696 of 2022
(which is same as Ext.P4 in the latter writ petition).
5. Heard Sri. Ebin Mathew, the learned Counsel for
the petitioner in W.P.(C) No.35696 of 2022, Sri. P.A
Muhammed Shah, Sri. Renoy learned counsel for
Municipality and Sri. Rafeeq, appearing for respondents 8 &
9.
6. It is seen that Ext.P6 was passed after the filing
of two writ petitions and a contempt of Court Case. The
Municipality was directed to take a decision as per Ext.P2
judgment which is complied with by passing the order
dated 28.02.2020, it was found in the said order that the
contesting party respondents in W.P.(C) No.35696 of 2022,
who are the writ petitioners 2 & 3 in W.P.(C) No.36122 of
2023, could not produce any documents though they
claimed title over the land. It is also stated that after
passing the order, which is sought to be implemented in
one writ petition and challenged in the other, the
W.P.(C)No.35696 OF 2022 and 36122 of 2023
Municipality was physically prevented from executing the
same despite police assistance. Before this Court also no
documents were produced by the party respondents, the
writ petitioners herein to substantiate their title except
asserting that they were in possession from time
immemorial. That apart, petitioners 2 & 3 in W.P.(C)
No.36122 of 2023 had earlier filed a writ petition referred
to above and were also the respondents in W.P.(C)
No.35696 of 2022 and by suppressing all these, a fresh writ
petition was filed after three years. The non-mentioning of
the cases is a clear violation of the proviso to Rule 146 of
the High Court of Kerala Rules. W.P.(C) No.36122 of 2023
is liable to be dismissed on the short ground of suppression
of relevant facts, also for delay and laches, without
considering any contention in that writ petition on merits.
7. As regards W.P.(C) No.35696 of 2022, the
Municipality has to implement Ext.P6 order. The remedy, if
any for respondents 8 &9 is to approach a Civil Court to
establish their case. No factual disputes on title can be
W.P.(C)No.35696 OF 2022 and 36122 of 2023
decided in a writ petition.
8. W.P.(C) No.35696 of 2022 allowed. There will be
a direction to the 5th respondent Municipality to implement
Ext.P6 order passed by taking such steps. A decision shall
be taken and the order implemented within an outer limit of
5 months from the date of receipt of judgment.
9. It will be open to the 5th respondent Municipality
to seek the help of the 4 th respondent Police to implement
the order passed.
W.P.(C) No.35696 of 2022 allowed. W.P.(C) No.36122
of 2023 dismissed.
Sd/-
MOHAMMED NIAS C.P.,
JUDGE
S.M.K.
W.P.(C)No.35696 OF 2022 and 36122 of 2023
APPENDIX OF WP(C) 35696/2022
PETITIONER'S EXHIBITS
Exhibit P1 A TRUE COPY OF THE RELEVANT PAGES OF
REGISTERED BYE-LAW OF THE PETITIONER
ORGANIZATION
Exhibit P2 A TRUE COPY OF THE JUDGMENT DATED
27/07/2017 IN WP(C) NO. 32622/2016
Exhibit P3 A TRUE COPY OF THE JUDGMENT DATED
31/10/2017 IN COC NO 1890/2017 OF THIS
HON'BLE COURT
Exhibit P4 A TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE 5TH RESPONDENT HEREIN
DATED 15/01/2019 IN WP(C) 40058/2018
Exhibit P5 A TRUE COPY OF THE JUDGMENT DATED
06/11/2019 IN WP(C) 40058/2018 OF THIS
HON'BLE COURT
Exhibit P6 6 A TRUE COPY OF THE PROCEEDINGS OF THE
THEN CHAIRPERSON DATED 28/02/2020
Exhibit P7 A TRUE COPY OF THE LETTER DATED
16/02/2019 OF THALSIDAR (LAND RECORDS)
KOZHIKODE
Exhibit P8 A TRUE COPY OF THE LETTER DATED
06/01/2021 ISSUED BY THE PETITIONER TO
THE 5TH RESPONDENT
Exhibit P9 A TRUE COPY OF THE LETTER DATED
23/11/2021 ISSUED BY THE ADDITIONAL
CHIEF SECRETARY TO THE PETITIONER
Exhibit P10 A TRUE COPY OF THE LETTER DATED
05/03/2022 ISSUED BY THE 5TH RESPONDENT
TO THE PETITIONER.
RESPONDENT Nos.7,8 & 9 EXHIBITS
Exhibit R7(a) TRUE COPY OF THE NOTARIZED AFFIDAVIT
DATED 22.01.2018 SHOWING THE OWNERSHIP
OF THE BURIAL GROUND IN QUESTION
Exhibit R7(b) TRUE COPY OF THE ORDER NUMBERED
7337/A4/2018/KKD/KSCSCST DATED
14.02.2019
Exhibit R7(c) A TRUE COPY OF AN APPLICATION SUBMITTED
BEFORE THE 3RD RESPONDENT ON 18.06.2020
W.P.(C)No.35696 OF 2022 and 36122 of 2023
Exhibit R7(d) TRUE COPY OF THE LETTER ISSUED BY THE
VILLAGE OFFICER, FEROKE DATED
12.01.2018
Exhibit R7(e) TRUE COPY OF THE MINUTES OF THE MEETING
CONVENED AT THE CHAMBER OF THE 3RD
RESPONDENT, DATED 22.01.2018
Exhibit R7(e) TYPED LEGIBLE COPY OF EXHIBIT R7(E)
W.P.(C)No.35696 OF 2022 and 36122 of 2023
APPENDIX OF WP(C) 36122/2023
PETITIONERS' EXHIBITS
Exhibit P1 TRUE COPY OF THE NOTARIZED AFFIDAVIT
DATED 22.02.2018 SHOWING THE OWNERSHIP
OF THE BURIAL GROUND IN QUESTION.
Exhibit P2 TRUE COPY OF THE LETTER ISSUED BY THE
VILLAGE OFFICERE, FEROKE DATED
12.01.2018
Exhibit P3 TRUE COPY OF THE ORDER NUMBERED
7337/A4/2018/KKD/KSCSCST DATED
14.02.2019
Exhibit P4 TRUE COPY OF THE ORDER OF PROCEEDINGS
OF THE CHAIRPERSON DATED 28.02.2020
nd
2 RESPONDENT'S EXHIBITS
Exhibit R-2(a) A true copy of the judgment dated
27/07/2017 in WP(C) No. 32672/2016
Exhibit R-2(b) A true copy of the judgment dated
31/10/2017 in COC No 1890/2017 of this
Hon'ble Court
Exhibit R-2(c) A true copy of the judgment dated
06/11/2019 in WP(C) 40058/2018 of this
Hon'ble Court
1st RESPONDENT'S EXHIBITS
Exhibit-R1(a) The true copy of the extract of the
digital register of the asset register
Exhibit-R1(b) The true copy of the Judgment dated
27.07.2017 in WP(C) No. 32672 of 2016
Exhibit-R1(c) The true copy of the judgment dated
06.11.2019 in WP(C) No. 40058 of 2018
