Dismissed

Madathil Hussain v. Areecode Grama Panchayath

Kerala HC22 May 2012WP(C)/3098/2012

Case brief

AI extract

What is this about?

The court dismissed two writ petitions filed by landowners challenging the Areecode Panchayat's proposal to let out vacant land adjacent to a bus stand. The court held that the disputed factual issue regarding land ownership and availability of vacant land requires adjudication impossible in writ proceedings, directing parties to the appropriate forum.

What the court decided

AI extract

Madathil Hussain Vs Areecode Grama Panchayath — Landlord and Tenant | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

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TUESDAY, THE 22ND DAY OF MAY 2012/1ST JYAISHTA 1934

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WP(C).No. 3098 of 2012 (J)

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PETITIONER(S):

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MADATHIL HUSSAIN, AGED 38 YEARS S/O.RAYINKUTTY HAJI,KAVANNUR-12 KAVANNUR.P.O,MALAPPURAM DISTRICT.

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BY ADV. SRI.P.M.POULOSE

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RESPONDENT(S):

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--------------- ---------

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1. AREECODE GRAMA PANCHAYATH

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AREECODE.P.O,PIN:673639,MALAPPURAM DISTRICT

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REPRESENTED BY ITS SECRETARY.

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2. THE SECRETARY,

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AREECODE GRAMA PANCHAYATH,AREECODE.P.O,PIN:679639

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MALAPPURAM DISTRICT.

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ADDL.R3 IMPLEADED.

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3. SHAHEEM KOLLATHUDI, S/O.ABDUL RAAAHMAN, PATTAKAL HOUSE, AREECODE P.O., MALAPPURAM – 673 639.

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ADDL. R3 IS IMPLEADED AS PER ORDER DTD. 26.3.2012 IN OA. 4712/2012.

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R1 BY ADV. SRI.C.M.MOHAMMED IQUABAL BY ADV. SRI.A.RAJASIMHAN BY ADV. SRI.SAJAN VARGHEESE K. BY ADV. SRI.LIJU. M.P

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-05-2012, ALONG WITH WPC. 9346/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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tss

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W.P.(C) NO.3098/2012

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APPENDIX

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P1:- COPY OF THE REGISTERED ASSIGNMENT DEED NO.5265/06 DTD. 8.11.2006 OF SRO. AREECODE EXECUTED BY ONE SRI.AYMOOTTY HAJI THROUGH HIS POWER OF ATTORNEY IN FAVOUR OF THE PETITIONER.

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P2:- COPY OF THE BASIC TAX RECEIPT NO.7275325 DTD. 5.9.2007.

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P3:- BAXIC TAX RECEIPT FOR THE YEAR 31.12.2012.

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P4:- POSSESSION CERTIFICATE DTD. 8.2.2008.

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P5:- COPY OF THE SKETCH SHOWING THE LIE OF THE SAID 3.70 CENTS OF LAND.

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P6:- COPY OF THE OWNERSHIP CERTIFICATE NO. A4-319/2008 DTD. 31.1.2008 ISSUED BY 2ND RESPONDENT.

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P7:- EXPLANATION SUBMITTED BY THE PETITIONER TO THE PANCHAYATH IN JUNE 2009 DTD. NIL.

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P8:- JUDGMENT IN WPC. 15548/2009.

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P9:- SKETCH

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RESPONDENT'S EXHIBITS:-

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R1(A):- COPY OF THE NOTICE ISSUED BY THE AREECODE GRAMA PANCHAYATH DT. 31.8.2009.

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R1(B):- COPY OF THE ADVERTISEMENT DT.D 19.12.2011 PUBLISHED IN CHANDRIKA DAILY.

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R1(C):- COPY OF THE APPLICATION OF THE PETITIONER DTD 24.12.2011.

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R1(D):- COPY OF THE AUCTION DIARY DT.D 24.12.2011.

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R3(A):- COPY OF THE APPLICATION FOR BUILDING PERMIT.

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R3(B):- COPY OF THE BUILDING PERMIT.

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R3(C):- COPY OF THE REPLY.

//TRUE COPY//

P.A. TO JUDGE

tss

ANTONY DOMINIC, J

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W.P.(C)s.3098 & 9346/2012

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.............................................. Dated this the 22^nd day of May, 2012

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JUDGMENT

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Issues raised in these writ petitions are connected and therefore, these cases were heard together and are disposed of by this common judgment.

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Petitioner in W.P.(C).3098/12 owns a plot of land situated in R.S.No.363/2 of Areacode Village and having an extent of 3.7 cents. The adjacent property situated in Survey No.363/1 is owned by the petitioner in W.P.(C).9346/12. Both these properties are having commercial buildings owned by the respective petitioners. On the northern side of these properties, a bus stand building owned by the Areacode Panchayat is situated and that property is in Survey No.364/14 of the same village.

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Petitioners' grievance mainly arose out of Ext.P9 in W.P.(C).9346/12, whereby, the Panchayat invited

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W.P.(C)s.3098 & 9346/12

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applications for letting out a portion of its property allegedly situated on the southern boundary of the Areakode Bus Stand. According to the petitioners, bus stand building occupies the entire property of the Panchayat situated in Survey No.364/14 and the Panchayat does not have any portion of the property either on the southern boundary or elsewhere, to let out as proposed in Ext.P9. They also say that the property which is proposed to be let out is the set back area left vacant by them in their properties, in compliance with the provisions of the Kerala Municipality Building Rules. It is with this allegation these writ petitions have been filed and the petitioners relied on the photographs and sketches to substantiate their contention that the Panchayat do not own any property to be let out as proposed.

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On the other hand, the stand taken by the Panchayat, as disclosed from the counter affidavit filed, is that on the southern boundary of the bus stand property, vacant land is available. It is also

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W.P.(C)s.3098 & 9346/12

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alleged that the petitioner in W.P.(C).3098/12 had trespassed into a portion of Panchayat property and that pursuant to the orders passed by the Panchayat, in compliance with the directions of this Court in W.P.(C).15548/09, a joint inspection was conducted and that the objectionable constructions were removed. In other words, they submit that the area which was occupied by the objectionable construction is now vacant and it is that area which is proposed to be let out.

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Essentially therefore, the disputed factual issue that arises to be considered is the correctness of the claim of the petitioner that there is no vacant land available in the Panchayat property to let out as proposed.

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In my view, while it is a fact that the Panchayat cannot trespass into any portion of the property owned by the petitioners and reduce the same into their possession, to resolve the aforesaid disputed

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W.P.(C)s.3098 & 9346/12

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factual question, adjudication of various factual issues is necessary. Such an adjudication is impossible in a proceedings under Article 226 of the Constitution of India and therefore if the petitioners want to redress the aforesaid grievance, their remedy lies not in a proceedings under Article 226 of the Constitution of India.

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Therefore the writ petitions are dismissed without prejudice to the respective contentions of the respective parties and leaving it open to them to seek redressal before the appropriate forum.

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Sd/- ANTONY DOMINIC, JUDGE

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mrcs

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/true copy/ PA To Judge

Madathil Hussain v. Areecode Grama Panchayath

Case brief

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Madathil Hussain v. Areecode Grama Panchayath

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