Kerala High Court

Muhammed Shebin vs Elappara Grama Panchayath on 24 February, 2025

Author: Anil K.Narendran

Bench: Anil K.Narendran

                                            1




WP(C)No.23542 of 2024
                                                                     2025:KER:17443
                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

                  THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

                                            &

                  THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.

         MONDAY, THE 24TH DAY OF FEBRUARY 2025 / 5TH PHALGUNA, 1946

                             WP(C) NO. 23542 OF 2024


PETITIONER:

                MUHAMMED SHEBIN,AGED 38 YEARS
                S/O SABU, KOLLAMPARAMBIL HOUSE, ELAPPARA, IDUKKI DISTRICT,,
                PIN - 685501


                BY ADVS.
                P.T.SHEEJISH
                A.ABDUL RAHMAN (A-1917)
                PARVATHY S. MANOJ
                AMRITA SAFAL M.
                YOOSUF SAFWAN T. AJMAL


RESPONDENTS:

     1          ELAPPARA GRAMA PANCHAYATH,
                REPRESENTED BY ITS SECRETARY, OFFICE OF THE ELAPPARA GRAMA
                PANCHAYATH, ELAPPARA P.O, IDUKKI DISTRICT, PIN - 685501

     2          THE SECRETARY,
                ELAPPARA GRAMA PANCHAYATH, OFFICE OF THE ELAPPARA GRAMA
                PANCHAYATH, ELAPPARA P.O, IDUKKI DISTRICT, PIN - 685501

     3          THE DISTRICT COLLECTOR,
                IDUKKI DISTRICT, CIVIL STATION, PAINAVU, KUYILIMALA, IDUKKI
                DISTRICT, PIN - 685603


                BY ADV RAJEEV V.K.
                SRI.JAFAR KHAN, GOVERNMENT PLEADER

         THIS   WRIT   PETITION   (CIVIL)       HAVING   COME   UP   FOR   ADMISSION   ON

24.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C)No.23542 of 2024
                                                       2025:KER:17443
                             JUDGMENT

Muralee Krishna, J.

This writ petition is filed by the petitioner under Article 226

of the Constitution of India seeking the following reliefs:

"(i) Issue a writ of Mandamus or any appropriate writ, order or direction commanding the 2nd respondent to immediately reconsider Exhibit P9 application of the petitioner and to take steps to conduct proper site/property inspection, so as to render the justice adequately.

(ii) Issue a writ of Mandamus or any appropriate writ, order or direction commanding the respondents to immediately reconsider the Exhibit P9 application of the petitioner after affording a proper opportunity of hearing, within a time frame fixed by this Hon'ble Court so as to render the justice adequately.

(iii) To declare that the set back is not applicable for building construction in the 32 Square meter property of the petitioner in Sy No. 791/2-6, at Elappara village".

2. According to the petitioner, he is the owner in possession

of 32 square meters of property in survey No.791/2-6 of Elappara

Village in Idukki District by virtue of Ext.P2 sale deed dated

24.01.2022 bearing No.310/2022 of SRO, Elappara executed by

one Asha Kose. The predecessor of the petitioner had been in

possession of another 2.200 cents of property in the very same

2025:KER:17443 survey number lying adjacent to the property covered under

Ext.P2 sale deed. Though the said 2.200 cents of property was not

having proper back documents like patta, by virtue of Ext.P3 sale

deed dated 24.01.2022 Asha Kose sold that property also to the

petitioner. There was a building aged more than 36 years situated

in the property covered in Ext.P2. When the petitioner approached

respondents 1 and 2 seeking permission to renovate that building

it was orally informed that no special permission is needed for

renovation work. But when the petitioner commenced the

renovation work, he received Ext.P6 notice dated 01.02.2023 from

the 2nd respondent directing him to stop the construction and also

Ext.P7 notice dated 20.04.2023 directing him to demolish the

construction. Thereafter the petitioner submitted Ext.P8

representation and Ext. P9 application dated 09.05.2023 to the

2nd respondent to regularise the renovation work of the building

carried out by him. According to the petitioner, coercive steps

were initiated against him by the respondents upon a mistaken

impression and on a complaint received against some other

persons in the locality who had engaged in unauthorized

construction. Since there was no response from the part of the

2025:KER:17443 respondents to Ext.P9 application, the petitioner approached this

Court by filing W.P.(C)No. 25068 of 2023 wherein this Court

passed Ext.P13 judgment dated 08.08.2023 directing the 2nd

respondent to consider Ext.P9 regularization application (Ext.P2 in

that writ petition) and take appropriate decision thereon within a

period of one week. But, even after Ext.P13 judgment, no

communication was received by the petitioner from the

respondents and hence he filed an application under the Right to

Information Act to which he received Ext.P15 information dated

22.12.2023 stating that the application filed by the petitioner for

regularization was not in accordance with the Rules framed for

regularization of unauthorised constructions and hence no action

was necessary therein. Thereafter, the petitioner submitted

Ext.P16 representation dated 20.4.2024 before the 2nd respondent

to which he received Ext.P17 reply dated 13.05.2024 stating that

his application was rejected and that his building number was

removed from the panchayat register. It is thereafter the

petitioner came up with the above writ petition.

3. A counter affidavit has been filed by the 3 rd respondent

producing therewith Exts.R3(a) to R3(c). Paragraphs 3 to 5 of that

2025:KER:17443 counter affidavit read thus:

"3. Petitioner has purchased 32 Square meters of land including a building bearing No.9 in Survey No.791/2-6 of Elappara Village vide Exhibit P2 sale deed. Later, Mutation was effected and obtained Thandaper. Copy of the Thandaper No.12328 is produced herewith and may be marked as Ext.R3(a). However, the vendor of Exhibit P2 property, without any title and valid documents, transferred 2.200 cents of unassigned land to the petitioner as per Exhibit P3 document.

4. Later, the petitioner applied for a Possession Certificate before the Revenue authority and the same was enquired by the Tahsildar through the Village Officer, Elappara. Copy of the report of the Village Officer, Elappara dated 03.09.2024 is produced herewith and may be marked as Ext.R3(b). It is respectfully submitted that the Revenue authority cannot issue Revenue Certificates in respect of the land belonging to the Government. Furthermore, the petitioner cannot press any legal rights on the Thodu puramboke, which is essential for the common use of Society. The Honourable Supreme Court in Sarvepalli Ramaiah (Died) as per LRs and others v. District Collector, Chittoor District and others 2019 KHC 6318, held that poramboke (tank) cannot be alienated. No Patta can be granted in respect of tanks and water bodies including those that might have dried up or fallen into disuse.

2025:KER:17443

5. On 12.05.2023, the petitioner approached the Elappara Panchayath, seeking permission to construct a new building having a plinth area of 41.79 square meter on the land. The aforesaid extent included in the application does not tally with the extent recorded in Exhibit P2 Sale Deed. According to the petitioner, the land included in Exhibit P2 Sale Deed was derived from Patta No.LA No.492/65. Copy of the Patta No.LA No.492/65 is produced herewith and may be marked as Ext.R3(c). However, the building was constructed by the petitioner without obtaining permission from the Panchayath and the same is illegal. Therefore, the petitioner cannot seek any reliefs from this Hon'ble invoking Article 226 of the Constitution".

4. On 16.01.2025, when this writ petition came up for

consideration, the learned Standing Counsel for the Elappara

Grama Panchayat was directed to make available for the perusal

of this Court, a few photographs of the property in which certain

constructions are being made by the petitioner. On 20.01.2025

when this matter was taken up for consideration, the learned

Standing Counsel made available for the perusal of this Court, a

few photographs of the construction made by the petitioner in the

property in question in respect of which Ext.P9 application for

regularisation is pending consideration. One of such photographs

2025:KER:17443 handed over by the learned Standing Counsel for the Elappara

Grama Panchayat reproduced by this Court in the order dated

20.01.2025 is reproduced hereunder.

5. On 20.01.2025, the learned Standing Counsel pointed

out that as per Ext.P7 notice dated 20.4.2023 issued by the 2 nd

respondent Secretary of the Elappara Grama Panchayat, the

petitioner was required to demolish the unauthorized construction

made in the property in question. Having considered the

submissions made at the Bar, we directed the 2nd respondent

Secretary of Elappara Grama Panchayat to take immediate steps

to stop the construction activities undertaken by the petitioner in

the property in question, if found necessary with Police assistance,

invoking the provisions under Section 252(1)(b) of the Kerala

2025:KER:17443 rd Panchayat Raj Act, 1994. The 3 respondent District Collector,

Idukki District, was directed to take necessary steps, through the

revenue officials concerned, to see that no construction

whatsoever takes place in the property in question.

6. Heard the learned counsel for the petitioner and the

learned Senior Government Pleader.

7. The learned counsel for the petitioner submitted that

unless the construction carried out by the petitioner is regularised,

he will be put to irreparable hardships. The petitioner is a genuine

purchaser of the property by virtue of Exts.P2 and P3 documents.

8. On the other hand, the learned Senior Government

Pleader submitted that the predecessor in interest of the petitioner

was having title only over an extent of 32 square meters of

property in survey No.791/2-6 of Elappara Village. But while

selling that property, another extent of 2.200 cents was also as

sold to the petitioner by her by virtue of Ext.P3 sale deed. When

the petitioner applied for a possession certificate, an enquiry was

conducted by the Revenue Authority and Ext.R3(b) report dated

03.09.2024 was submitted by the Village Officer, Elappara. In the

enquiry it was found that the petitioner applied for construction of

2025:KER:17443 a building having a plinth area of 41.79 square meters in the

property having an extent of 32 square meters. At the time of the

visit of the Village Officer, the construction of a new building was

completed on the property. It is further submitted by the learned

Government Pleader that the property possessed by the petitioner

is a thodu puramboke which is essential for the common use of

the society.

9. From Ext.P2 sale deed executed by Asha Kose in favour of

the petitioner on 24.01.2022 it could be gathered that an extent

of 32 square meters of property was purchased by the petitioner.

Some prior title deeds are also referred to in Ext.P2 sale deed.

However, Ext.P3 sale deed was executed by the said Asha Kose in

favour of the petitioner simply stating that she has been in

possession of that property having an extent of 2.200 cents from

1997 onwards. No prior title has been mentioned in respect of that

property in Ext.P3 sale deed. According to the 3rd respondent

District Collector, the property covered in Ext.P3 is a thodu

puramboke which is not included in the list of assignable land.

Though the petitioner approached the respondents seeking

regularization of the modifications made by him to the existing

2025:KER:17443 building, the materials on record would show that the petitioner

has carried out a new construction itself, including on a property

in the thodu puramboke. The extent of such a construction carried

out by the petitioner is evident from the photographs reproduced

in this order. In such circumstances, we find that the petitioner

is not entitled for the reliefs sought in this writ petition.

In the result, the writ petition stands dismissed. We direct

the 3rd respondent District Collector to ensure, by invoking

relevant provisions of law applicable, that such encroachments

and unauthorised constructions are not being carried out in

Government lands.

Sd/-

ANIL K.NARENDRAN, JUDGE

Sd/-

MURALEE KRISHNA S., JUDGE

sks

2025:KER:17443 APPENDIX OF WP(C) 23542/2024

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE LAND TAX RECEIPT ISSUED TO THE PETITIONER FROM THE ELAPPARA VILLAGE OFFICE WITH RESPECT TO 32 SQUARE METER OF PROPERTY IN OLD SY NO. 791/2-6, AT ELAPPARA VILLAGE DATED 23.04.2024

Exhibit P2 TRUE COPY OF THE SALE DEED NO 310/2022 OF SRO ELAPPARA, EXECUTED IN FAVOR OF THE PETITIONER WITH RESPECT TO 32 SQUARE METER OF PROPERTY COMPRISED IN OLD SY NO. 791/2- 6, DATED 24.01.2022

Exhibit P3 TRUE COPY OF THE SALE DEED EXECUTED BY THE PETITIONER'S PREDECESSOR IN FAVOR OF THE PETITIONER WITH RESPECT TO 2.200 CENTS OF PROPERTY IN OLD SY NO. 791/2-6, AT ELAPPARA VILLAGE DATED 24.01.2022

Exhibit P4 TRUE COPY OF THE OWNERSHIP CERTIFICATE, ISSUED TO THE PETITIONER FROM THE OFFICE OF THE 1ST RESPONDENT DATED 23.04.2024

Exhibit P5 TRUE COPY OF THE BUILDING AGE CERTIFICATE ISSUED BY THE OFFICE OF THE 1ST RESPONDENT TO THE PETITIONER DATED 14.03.2024

Exhibit P6 TRUE COPY OF THE NOTICE DATED 01.02.2023 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT

Exhibit P7 TRUE COPY OF THE NOTICE DATED 20.04.2023 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT

Exhibit P8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

Exhibit P9 TRUE COPY OF THE APPLICATION FOR PERMIT/REGULARIZATION SUBMITTED BY THE PETITIONER BEFORE THE OFFICE OF THE 1ST RESPONDENT DATED 09.05.2023

Exhibit P10 TRUE COPY OF THE COMMUNICATION ISSUED BY

2025:KER:17443 THE PANCHAYATH DIRECTOR TO PANCHAYATH DEPUTY DIRECTOR, IDUKKI DATED 20.12.2022

Exhibit P11 TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE OFFICE OF THE PANCHAYATH DIRECTOR DATED 26.11.2022

Exhibit P12 TRUE COPY OF THE COMMUNICATION ISSUED FROM THE OFFICE OF THE ASSISTANT ENGINEER LID 7EW SECTION ELAPPARA TO THE 2ND RESPONDENT DATED 01.02.2023

Exhibit P13 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO. 25068 OF 2023 DATED 08.08.2023

Exhibit P14 TRUE COPY OF THE RTI APPLICATION RECEIPT DATED 01.11.2023

Exhibit P15 TRUE COPY OF THE RTI REPLY DATED 22.12.2023 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT

Exhibit P16 TRUE COPY OF THE REPRESENTATION DATED 20.04.2024 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

Exhibit P17 TRUE COPY OF THE COMMUNICATION DATED 13.05.2024 ISSUED BY THE 2ND RESPONDENT

RESPONDENT EXHIBITS

EXHIBIT R3(a) True copy of the Thandaper No.12328.

EXHIBIT R3(c) True copy of the Patta No. LA No.492/65.

EXHIBIT R3(b) True copy of the report of the Village Officer, Elappara dated 03.09.2024.