Kerala High Court
Johnson Philip vs The District Collector on 13 March, 2025
2025:KER:22267
W. P. (C) Nos. 5368 of 2017 &
41144 of 2022
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 13TH DAY OF MARCH 2025 / 22ND PHALGUNA, 1946
WP(C) NO. 5368 OF 2017
PETITIONER:
JOHNSON PHILIP,
S/O. C.T.PHILIP, CHARUVIL HOUSE, CHENGARA P.O.,
MALAYALAPUZHA VILLAGE,PATHANAMTHITTA DISTRICT-689671,
(NOW RESIDING AT 10-BYFORD DRIVE, WESTERN AUSTRALIA -
6122) REPRESENTED BY HIS SISTER/POWER OF ATTORNEY
HOLDER MERCY THOMAS, AGED 56, W/O.THOMAS, VALIAPARMBIL,
MANNARAKULANJI, MALAYALAPUZHA, PATHANAMTHITTA DISTRICT-
689671.
ADV.SRI.V.PHILIP MATHEW
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF
REVENUE, KERALA GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 THE DISTRICT COLLECTOR,
PATHANAMTHITTA - 689 645.
3 THE REVENUE DIVISIONAL OFFICER,
ADOOR, PATHANAMTHITTA DISTRICT - 691 523.
4 THE VILLAGE OFFICER,
VILLAGE OFFICE, MALAYALAPUZHA, PATHANAMTHITTA DISTRICT
- 689 666.
5 TAHSILDAR,
TALUK OFFICE, KOZHENCHERRY, PATHANAMTHITTA DISTRICT -
689 641.
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6 KONNI GRAMA PANCHAYAT,
KONNI P.O., PATHANAMTHITTA DISTRICT - 689 691,
REPRESENTED BY ITS SECRETARY.
7 THE SECRETARY,
KONNI GRAMA PANCHAYAT, KONNI P.O., PATHANAMTHITTA
DISTRICT - 689 691.
8 PRASAD KOSHY JOSEPH, AGED 59,
POLLACHIRACKAL JOHN JOSEPH, POLLACHIRACKAL HOUSE,
MALAYALAPUZHA VILLAGE, KONNI TALUK, PATHANAMTHITTA
DISTRICT-689664, PRESENTLY AT: NHR GROUP, PO BOX
NO.610, SURRA-45707, KUWAIT) REPRESENTED BY HIS POWER
OF ATTORNEY HOLDER, MR.MOHAN JOHN, AGED 64,
S/O.POLLACHIRACKAL JOHN JOSEPH, POLLACHIRACKAL HOUSE,
MALAYALAPUZHA VILLAGE, KONNI TALUK, PATHANAMTHITTA
DISTRICT-689664.
9 MOHAN JOHN,
S/O.JOSEPH, AGED 65 YEARS, POLACHIRAYIL VEETTIL,
MALAYALAPUZHA VILLAGE, KONNITHAZHATHUMURIYIL,
P.O.CHENGARA, PATHANAMTHITTA DISTRICT-689664.
10 M.O.ABRAHAM, MELOOTTU VEEDU, ATTACHACKAL, KONNI,
PATHANAMTHITTA-689 692.
11 KERALA STATE ELECTRICITY BOARD LIMITED, VYDYUTHI
BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695004,
REPRESENTED BY ITS MANAGING DIRECTOR.
12 THE ASSISTANT ENGINEER, KSEB LTD., ELECTRICAL SECTION,
KONNI, PATHANAMTHITTA-689 691.
ADVS. SRI.V.K.SUNIL, SRI.RAJEEV V.K. & SRI.SUNIL JACOB
JOSE FOR R6 & R7
ADVS. SRI.R.PARTHASARATHY & SMT.SEEMA FOR R9
ADVS. SRI. R.RENJITH & SRI.M.T.SURESHKUMAR FOR R8
SRI.DHEERAJ A.S., GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
13.03.2025, ALONG WITH WP(C).NO.41144/2022, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
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W. P. (C) Nos. 5368 of 2017 &
41144 of 2022
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 13TH DAY OF MARCH 2025 / 22ND PHALGUNA, 1946
WP(C) NO. 41144 OF 2022
PETITIONER:
JOHNSON PHILIP,
S/O C.T.PHILIP , CHARUVIL HOUSE, CHENGARA P.O,
MALAYALAPUZHA VILLAGE , PATHANAMTHITTA DISTRICT - NOW
RESIDING AT 10-BYFORD DRIVE , WESTERN AUSTRALIA - 6122
REPRESENTED BY HIS SISTER / POWER OF ATTORNEY HOLDER
MERCY THOMAS , W/O THOMAS , VALIAPARAMBIL,
MANNARAKULANJI , MALAYALAPUZHA , PATHANAMTHITTA
DISTRICT.
BY ADV. SRI. V.PHILIP MATHEWS
RESPONDENTS:
1 THE DISTRICT COLLECTOR,
COLLECTORATE , PATHANAMTHITTA, PIN - 689645.
2 THE ADDITINAL DISTRICT MAGISTRATE,
COLLECTORATE PATHANAMTHITTA, PIN - 689645.
3 KERALA STATE ELECTRICITY BOARD LTD.,
VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM,PIN -
695004, REPRSENTED BY ITS MANAGING DIRECTOR.
4 THE ASSISTANT ENGINEER ,
KSEB LTD , ELECTRICAL SECTION, KONNI , PATHANAMTHITTA
DISTRICT, PIN - 689691.
5 KONNI GRAMA PANCHAYAT,
KONNI P.O , PATHANAMTHITTA DISTRICT ,PIN - 689691,
REPRESENTED BY ITS SECRETARY.
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6 SECRETARY, KONNI GRAMA PANCHAYAT,
KONNI P.O PATHANAMTHITTA DISTRICT, PIN - 689691.
BY ADV. SRI. RAJEEV V.K. FOR R5 & R6
ADV. SRI.A.ARUNKUMAR
ADV. SRI.V.K.SUNIL
SRI.DHEERAJ A.S., GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
13.03.2025, ALONG WITH WP(C).NO.5368/2017, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
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5
MOHAMMED NIAS C. P. , J.
========================================
W. P. (C) Nos. 5368 of 2017 & 41144 of 2022
========================================
Dated this the 13th day of March, 2025
JUDGMENT
The petitioner is stated to be the owner of 48.76 ares of property situated in
Sy. No.10/5, 10.12 ares of property situated in Sy. No.10/5/1 and 10.12 ares of
property situated in Sy. No.10/5/2 of Malayalapuzha Village, Kozhencherry
Taluk, Pathanamthitta District, as per Ext.P1 sale deed and asserts that a private
road is passing through the above property exclusively owned by him. He also
relies on Ext.P5 (Ext.P5 in WP(C) No.5368/2017) to say that the said property is not
included in the Asset Register maintained by the Panchayat and that, the
Panchayat has not made any construction activities therein. Subsequently, the
property in question was included in the Asset Register during the pendency of
this writ petition by Ext.P11 resolution, which is challenged in WP(C)
No.5368/2017 by way of an amendment.
2. The petitioner challenges Ext.P11 resolution in so far as it includes the
property in question in Ext.P10 Asset Register. Against a resolution passed by the
Panchayat, the petitioner can move the Government for cancelling or varying the
resolution if the same is not legally passed or taken or is in excess of the powers
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conferred under the Act under Section 191 of the Kerala Panchayat Raj Act, 1994.
In view of the above remedy available to the petitioner, I am not inclined to
entertain a challenge to Ext.P11 resolution.
3. WP(C) No.41144/2022 was filed at a time when the Electricity Board tried
to install and energize a post on the way in question.
4. At the time of admission of WP(C) No.5368/2017, on 17.2.2017, an interim
stay as prayed for was passed directing respondents 6 & 7 not to do any
works/construction over the private road 'Kurishummoodu-Polachirackalpadi
road' owned by the petitioner. The said order is still in force. In WP(C)
No.41144/2022, an interim order was passed directing the Board not to energize
the electric line for the purpose of installation of street lights over the private
road without the permission of the owners of the property.
5. The learned counsel appearing for respondent No.9 in WP(C)
No.5368/2017 submits that, Ext.P4 issued by the Panchayat stating that the
property in question is not in Asset Register is a mistake and that, the property
has been rightly included in the Asset Register through Ext.P11 resolution. The
learned counsel for the Panchayat also submits that the property vests with the
Panchayat and accordingly, has been included in the Asset Register.
6. The learned counsel for the petitioner relies on the judgment of this
Court in Radhakrishnan T.K. v. State of Kerala and Ors. [2022 (2) KHC 86, paras 21 &
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22] for the proposition that, in the absence of dedication by the owner nobody
else has the right to use the way in question. The learned counsel for the
Panchayat relies on the judgment in Mariam Beevi v. Secretary, Athirampuzha
Grama Panchayath, Kottayam and Ors. [2015 (3) KHC 199] to submit that once a
private road is meant to connect somebody else's property and thus becoming
part of the network of roads or paths, it is to subserve the public purpose of
providing access to and fro and therefore, the road ceases to have any exclusivity
for individual interest and is to yield to common good, the panchayat would be
justified in developing the road. The learned counsel for the 9 th respondent in
WP(C) No.5368/2017, relying on the judgment of this Court in Kurian Paul v.
Inspector of Police, Puthukkad [2023 (2) KHC 275] would contend that, the Asset
Register of the Panchayat, being a statutory document maintained in terms of the
provisions of the Kerala Panchayat Raj (Accounts) Rules, the entries therein have
to be presumed to be correct unless it is established that the same are incorrect.
7. It is not in dispute that Ext.P11 resolution was passed when WP(C)
No.5368/2017 was pending. It is a case where the petitioner asserts that the
property in question exclusively belongs to him while the 9 th respondent in WP(C)
No.5368/2017 would contend that the property vests with the Panchayat and was
therefore rightly included in the Asset Register. The Panchayat also maintains
that the inclusion of the property in the Asset Register is legal. The question as to
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whether the property exclusively belongs to the petitioner or whether it has been
used by others is not a matter that can be agitated or decided in a Writ Petition
under Article 226 of the Constitution of India.
8. In the instant case, through Ext.P5 answer given under the Right to
Information Act, the Panchayat says that the road in question was not included in
the Asset Register and they do not intend to carry out any construction there.
Though it is stated by the contesting respondent and the learned counsel for the
Panchayat that the same was a mistake, the dispute as to whether it is a mistake
or not cannot be decided in a Writ Petition.
9. In view of the above, reserving the liberty of the petitioner to approach
the Government in terms of Section 191 of the Kerala Panchayat Raj Act,
challenging the resolution to include the property in question in the Asset
Register, these Writ Petitions are disposed of. The contentions on the right over
the property raised by the petitioner and the respondents are left open.
10. The Government will decide on the challenge against the resolution at
the earliest within three months, as directed above. Needless to say, all the
parties in the writ petitions or their representative will be heard before taking a
decision as directed above. As stated above, since an interim order was passed in
the year 2017 and has been pending since then, the said interim order will
continue till a decision is taken as directed above, if the petitioner challenges the
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resolution within three weeks from the date of receipt of a copy of this judgment.
The above Writ Petitions are disposed of accordingly.
Sd/-
MOHAMMED NIAS C. P.,
JUDGE
MMG
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41144 of 2022
APPENDIX OF WP(C).NO.41144/2022
PETITIONER'S EXHIBITS:
EXHIBIT P1 COPY OF NOTICE DATED 05-02-2016 ISSUED BY THE
6TH RESPONDENT
EXHIBIT P2 COPY OF REPLY DATED 11-04-2016 ISSUED BY THE
PUBLIC INFORMATION OFFICER & SECRETARY, KONNI
GRAMA PANCHAYAT
EXHIBIT P3 COPY OF REPRESENTATION DATED NIL SUBMITTED BY
THE POWER OF ATTORNEY HOLDER OF THE
PETITIONER BEFORE THE 6TH RESPONDENT
EXHIBIT P4 COPY OF INTERIM ORDER DATED 17-02-2017 PASSED
EXHIBIT P5 PHOTOGRAPHS SHOWING DRAWING OF ELECTRIC LINE
OVER THE PRIVATE ROAD OWNED BY THE PETITIONER
EXHIBIT P6 COPY OF REPRESENTATION DATED 28-11-2022
SUBMITTED BY THE PETITIONER (THROUGH HIS
POWER OF ATTORNEY HOLDER) BEFORE THE FIRST
RESPONDENT
EXHIBIT P7 COPY OF RECEIPT NO.B6-412515 DATED 29-11-2022
ISSUED FROM THE OFFICE OF THE FIRST
RESPONDENT AFTER RECEIVING EXHIBIT P6
EXHIBIT P8 COPY OF REPRESENTATION DATED 28-11-2022
SUBMITTED BY THE PETITIONER (THROUGH HIS
POWER OF ATTORNEY HOLDER) BEFORE THE 4TH
RESPONDENT
EXHIBIT P9 COPY OF REPRESENTATION DATED 28-11-2022
SUBMITTED BY THE PETITIONER (THROUGH HIS
POWER OF ATTORNEY HOLDER) BEFORE THE 6TH
RESPONDENT
EXHIBIT P10 COPY OF RECEIPT DATED 28-11-2022 ISSUED FROM
THE OFFICE OF THE 5TH RESPONDENT AFTER
RECEIVING EXHIBIT P8
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APPENDIX OF WP(C).NO.5368/2017
PETITIONER'S EXHIBITS:
EXHIBIT P1 COPY OF SALE DEED NO. 886/07 DATED 11.4.2007.
EXHIBIT P2 COPY OF NOTICE DATED 05.2.2016 ISSUED BY THE
7TH RESPONDENT.
EXHIBIT P3 COPY OF REPLY DATED 02.3.2016 ISSUED BY THE
PUBLIC INFORMATION OFFICER & SECRETARY, KONNI
GRAMA PANCHAYAT.
EXHIBIT P4 COPY OF ORDER DATED 08.4.2016 PASSED BY THE
APPELLATE AUTHORITY (DEPUTY DIRECTOR OF
PANCHAYAT).
EXHIBIT P5 COPY OF REPLY DATED 11.4.2016 ISSUED BY THE
PUBLIC INFORMATION OFFICER & SECRETARY, KONNI
GRAMA PANCHAYAT.
EXHIBIT P6 COPY OF REPRESENTATION DATED NIL SUBMITTED BY
THE POWER OF ATTORNEY HOLDER OF THE
PETITIONER BEFORE THE 7TH RESPONDENT.
EXHIBIT P7 COMPLAINT DATED 10/02/2021 SUBMITTED BEFORE
THE STATION HOUSE OFFICER, MALAYALAPUZHA.
EXHIBIT P8 COPY OF RECEIPT DATED 29/08/2020 ISSUED BY
KANDATHIL CONSTRUCTIONS, CHENGARA TO
PETITIONER.
EXHIBIT P9 PHOTOGRAPHS SHOWING WORKERS ARE DOING
MAINTENANCE WORKS IN THE PRIVATE ROAD OWNED
BY THE PETITIONER.
EXHIBIT P10 TRUE COPY OF THE RELEVANT PAGE OF ASSET
REGISTER MAINTAINED BY RESPONDENT SIX AND
SEVEN RECEVIED
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EXHIBIT P11 TRUE COPY OF THE RESOLUTION NO.6\11 DATED
30.06.2018 PASSED BY THE SIXTH RESPONDENT
PANCHAYATH WHICH IS MENTIONED IN THE ASSET
REGISTER AND SERVED BY THE RESPONDENT SIXTH
AND SEVEN
RESPONDENTS' EXHIBITS:
EXHIBIT-R9(A) TRUE COPY OF THE INFORMATION RECEIVED FROM
THE KONNI GRAMA PANCHAYATH UNDER RIGHTS TO
INFORMATION ACT.
EXHIBIT-R9(B) TRUE COPY OF THE SURVEY SKETCH OF BLOCK NO.62
OF MALAYALA PUZHA VILLAGE, KOZHENCHERY
VILLAGE.
EXHIBIT R6(A) TRUE COPY OF THE LETTER C NO 7-8895/15 DATED
5/7/2017 ISSUED BY THE THAHSILDAR (SURVEY
MAPS) KONNI .
EXHIBIT R9(C) TRUE COPY OF THE REGISTERED PARTITION DEED
DATED 13-9-1976
EXHIBIT R9(D) TRUE COPY OF THE RESOLUTION DATED 30-06-2018
OF KONNI PANCHAYATH
EXHIBIT R9(E) TRUE COPY OF THE REPLY RECEIVED UNDER RIGHT
TO INFORMATION FROM THE VILLAGE OFFICE,
MALAYALAPUZHA DATED 15-04-2021
