The single-judge Bench ordered the District Surveyor to conduct a survey of disputed land to resolve status of encroachment. Directions were issued to submit the report, afford hearings, and finalize proceedings within 3 months.
Directions to conduct survey, afford hearing, and decide encroachment matter within three months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 23RD DAY OF NOVEMBER 2015/2ND AGRAHAYANA, 1937
WP(C).No. 17746 of 2013 (P)
PETITIONER:
E. X. XAVIER
EDEZHATHU HOUSE, NEAR SNDP, KUMBALANGHI ERNAKULAM DISTRICT.
BY ADVS.SRI.T.MADHU
SRI.B.S.SURAJ KRISHNA
RESPONDENT(S):
ADDL.R3 IS SUO MOTO IMPLEADED:
THE SUPERINTENDENT OF SURVEY AND LAND RECORDS/ DISTRICT SURVEYOR, COLLECTORATE, KAKKANAD, ERNAKULAM (ADDF.R3 IS SUO MOTO IMPLEADED AS PER JUDGMENT DATED 23.11.2015 IN W.P.(C) No.17746/13) R1 BY ADV. SRI.S.SHANAVAS KHAN R2 BY ADV. SRI.MURALI PURUSHOTHAMAN R2 BY ADV. SRI.DEEPU LAL MOHAN R2 BY ADV. SMT.S.LEENA ADDL.R3 BY GOVT.PLEADER SRI P.K.ABDUL RAHIMAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-11-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 17746 of 2013 (P) APPENDIX
PETITIONER(S)' EXHIBITS
| EXT.P1 - | TRUE COPY OF THE REPRESENTATION DATED 19-10-2009 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT |
|---|---|
| EXT.P2 - | TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT CARD EVIDENCING |
| THE RECEIPT OF EXT.P1 REPRESENTATION BY THE 1ST RESPONDENT. |
|
| EXT.P3 - | TRUE COPY OF THE JUDGMENT DATED 5-1-2010 IN WPC.NO.165/2010 ON THE FILE OF THIS COURT. |
| EXT.P4 - | TRUE COPY OF THE JUDGMENT DATED 4-3-2011 IN CCC NO.930/2010 ON THE FILE OF THIS COURT. |
| EXT.P5 - | TRUE COPY OF THE NOTICE DATED 12-11-2012 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. |
| EXT.P6 - | TRUE COPY OF THE NOTICE DATED 18-12-2012 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. |
RESPONDENT(S)' EXHIBITS:
| EXT.R2(A): | COPY OF APPLICATION DT.22.11.2012 SUBMITTED BY THE RESPONDENT BEFORE THE PUBLIC INFORMATION OFFICER IN 1ST RESPONDENT PANCHAYAT. |
2ND THE |
|---|---|---|
| EXT.R2(B): | COPY OF RECEIPT NO.B-8178/2012 DT.22.11.2012 ISSUED TO THE | 2ND |
| RESPONDENT BY THE 1ST RESPONDENT PANCHAYAT |
IN | |
| ACKNOWLEDGEMENT OF RECEIPT OF EXT.R2(A) APPLICATION. | ||
| EXT.R2(C): | COPY OF REPRESENTATION DT.22.12.2012 SUBMITTED BY THE RESPONDENT BEFORE THE 1ST RESPONDENT. |
2ND |
| EXT.R2(D): | COPY OF APPLICATION DT.26.11.2012 SUBMITTED BY THE RESPONDENT BEFORE THE TAHSILDAR, FORT KOCHI. |
2ND |
| EXT.R2(E): | PHOTOCOPY OF REPRESENTATION DT.27.11.2012 SUBMITTED BY 2ND RESPONDENT BEFORE THE 1ST RESPONDENT. |
THE |
| EXT.R2(F): | COPY OF RECEIPT NO.NIL DT.27.11.2012 ISSUED TO THE RESPONDENT BY THE 1ST RESPONDENT PANCHAYAT ACKNOWLEDGEMENT OF RECEIPT OF EXT.R2(E) APPLICATION. |
2ND IN |
| EXT.R2(G): | COPY OF REPRESENTATION DT.24.12.2012 SUBMITTED BY THE RESPONDENT BEFORE THE 1ST RESPONDENT. |
2ND |
| EXT.R2(H): | COPY OF RECEIPT No.9559/12 DT.24.12.2012 ISSUED TO THE RESPONDENT BY THE 1ST RESPONDENT PANCHAYAT ACKNOWLEDGEMENT OF RECEIPT OF EXT.R2(G) REPRESENTATIO |
2ND IN N. |
| EXT.R2(I): | COPY OF RESOLUTION No.VII(2) DT.12.2.2013 OF THE PANCH COMMITTEE OF THE 1ST RESPONDENT PANCHAYAT. |
AYAT |
| EXT.R2(J): | COPY OF LETTER NO.E-1186 DT.16.2.13 FORWARDED BY THE | 1ST |
| RESPONDENT PANCHAYAT TO THE DISTRICT SUR SUPERINTENDENT, ERNAKULAM. |
VEY | |
| EXT.R2(K): | COPY OF LETTER NO.E-1186/12 DT.28.2.13 FORWARDED BY THE | 1ST |
| RESPONDENT PANCHAYAT TO THE DISTRICT SUR |
VEY | |
| SUPERINTENDENT, ERNAKULAM. | ||
| EXT.R2(L): | COPY OF LETTER No.E-1186/10 DT.3.4.13 FORWARDED BY THE | 1ST |
| RESPONDENT PANCHAYAT TO THE DISTRICT SUR SUPERINTENDENT, ERNAKULAM. |
VEY | |
| EXT.R2(M): | COPY OF LETTER No.E-1186/10 DT.16.7.13 FORWARDED BY THE | 1ST |
| RESPONDENT PANCHAYAT TO THE DISTRICT SUR SUPERINTENDENT, ERNAKULAM. |
VEY |
TRUE COPY
P.S.TO JUDGE
dsn
ANIL K.NARENDRAN, J
-------------------------------------------------W.P.(C.)No.17746 Of 2013
-------------------------------------------------DATED THIS THE 23rd DAY OF NOVEMBER, 2015
JUDGMENT
The petitioner and the 2nd respondent are residents of Ward No.6 of Kumbalangi Grama Panchayat. The 2nd respondent is the owner in possession of a property in Sy.No.1592/1 of Kumbalangi Village. The petitioner would contend that the eastern side of the property of the 2nd respondent is a 'poramboke thodu' comprised in Sy.No.1592/3 of Kumbalangi Village and that the aforesaid 'thodu' running south to north is vested with the 1st respondent Grama Panchayat. The grievance of the petitioner is that, though the 1st respondent by Ext.P5 notice dated 12.11.2012 required the 2nd respondent to remove the alleged encroachment within 15 days of date of notice, which was followed by Ext.P6 notice dated 18.12.2012, no effective steps have been taken to implement the aforesaid decisions. It is in such circumstances, the petitioner has approached this Court in this Writ Petition seeking a writ of mandamus commanding the 1st respondent to take further auction based on Exts.P5 and P6 notices and to ensure compliance of the
W.P.(C).No.17746/13 -2-
same within a time frame that may be fixed by this Court.
point out that, based on the objection raised by the 2nd respondent in Ext.R2(g) objection dated 24.12.2012, the Panchayat Committee vide Ext.R2(i) resolution decided to keep in abeyance all proceedings pursuant to Exts.P5 and P6 till the property in question is surveyed with the assistance of District Surveyor. With reference to Ext.R2(g) objection, the learned counsel would also point out that, there is some discrepancy with regard to the sketch appended to Ext.P5 notice and it was specifically brought to the notice of the 1st respondent Grama Panchayat in Ext.R2(g) and it was in such circumstances, the Panchayat Committee has taken such a decision in Ext.R2(i).
W.P.(C).No.17746/13 -3-
Grama Panchayat and also the learned counsel appearing for the 2nd respondent.
that in spite of Exts.P5 and P6 notices issued by the 1st respondent Grama Panchayat, in exercise of the powers under the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules, 1996 (hereinafter referred to as 'the rules'), no effective steps have been taken to finalise the proceedings initiated against the 2nd respondent. However, as borne out from the materials on record, subsequent to Ext.P5 notice, the 2nd respondent submitted Ext.R2(g) objection raising certain objections and it was after considering the same, the Panchayat Committee in Ext.R2(i) decided to survey the disputed land with the assistance of District Surveyor and to keep in abeyance further proceedings pursuant to Exts.P5 and P6.
W.P.(C).No.17746/13 -4-
report.
(i) Within one month from the date of receipt of a certified copy of this judgment, the additional 3rd respondent shall conduct a survey of the property in question as requested by the 1st respondent Grama Panchayat in Exts.R2(j), R2(k) and R2(m) and submit
a report to the Secretary of the 1st respondent Grama Panchayat.
W.P.(C).No.17746/13
-5-
serve a copy of the survey report to the petitioner and also to the 2nd respondent and provide them an opportunity to file their objections, if any.
(iii) On receipt of such objections, the Secretary of the Grama Panchayat shall consider the same as contemplated under Rule 5 of the Rules and a final decision on Exts.P5 and P6 shall be taken within a
further period of three months, after affording a reasonable opportunity of being heard to the petitioner and also to the 2nd respondent.
It is made clear that this Court has not expressed anything on the merits of the rival contentions raised by the parties and it is for the 1st respondent to take an appropriate decision in the matter based on the report submitted by the additional 3rd respondent and after considering the objections filed by the petitioner and the 2nd respondent.
Sd/- ANIL K.NARENDRAN, JUDGE
dsn
True copy
P.S. to Judge
2 issues framed by the court
whether to issue directions to the District Surveyor to conduct a survey of the disputed property.
whether to establish a time-bound procedure for the Panchayat to finalize encroachment proceedings after receiving the survey report.
E.X.XAVIER
KUMBALANGI GRAMA PANCHAYATH
K.D.XAVIER
SUPERINTENDENT OF SURVEY AND LAND RECORDS
ANIL K.NARENDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
