Allowed

Subhadra v. Secretary,Thrikkakara Grama Panchayath

Kerala HC28 Oct 2016RSA/1047/2006

Case brief

AI extract

What is this about?

In a regular second appeal, the Kerala High Court held that a suit for injunction against a Panchayat for unlawful encroachment without statutory sanction does not require a notice under Section 249 of the Kerala Panchayat Raj Act and set aside lower court dismissals.

What did the court decide?

Impugned judgments and decrees set aside; matter remitted back to trial court for fresh trial.

Subhadra Vs Secretary,Thrikkakara Grama Panchayath — Property and Title | Kerala HC (2016)

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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 K.HARILAL

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FRIDAY, THE 28TH DAY OF OCTOBER 2016/6TH KARTHIKA, 1938

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RSA.No. 1047 of 2006 (G)

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AGAINST THE JUDGMENT & DECREE DATED 04-10-2006 IN AS 1/2005 of

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I ADDL.SUB COURT,ERNAKULAM

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AGAINST THE JUDGMENT & DECREE DATED 14-01-2005 IN OS 817/2003 of I ADDL. MUNSIFF COURT, ERNAKULAM

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APPELLANT/APPELLANT/PLAINTIFF::

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SUBHADRA, AGED 58,

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D/O. SANKARAN, MOLOTH HOUSE, THRIKKAKARA, KAKKANAD, KOCHI.

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BY ADV. SRI.N.K.MOHANLAL

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RESPONDENT/RESPONDENT/DEFENDANT::

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SECRETARY, THRIKKAKARA GRAMA PANCHAYAT, THRIKKAKARA.

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BY ADVS. SRI.V.M.KURIAN

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SRI.MATHEW B. KURIAN SRI.K.T.THOMAS SMT.TULASI PANICKER SRI. S. SHANAVAS KHAN

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

OKB

“ CR”

K.HARILAL, J.

R.S.A. No.1047 of 2006

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Dated this the 28^th day of October, 2016

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JUDGMENT ~ ~ ~ ~ ~

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The appellant is the plaintiff in O.S.No.817/2003 on the files of the I Additional Munsiff's Court, Ernakulam, as well as the appellant in A.S.No.1/2005 on the files of the I Additional Sub Court, Ernakulam. The aforesaid suit was filed for a decree for permanent prohibitory injunction restraining the defendant from cutting and making a concrete pathway through the plaint schedule property. The defendant raised a preliminary objection challenging the maintainability of the suit on the ground that the plaintiff has not issued statutory notice under Section 249(1) of the Kerala Panchayat Raj Act, 1994, against the Secretary before instituting the said suit.

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RSA.1047/06-G :2:

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Per contra, the plaintiff contended that the suit was one for an injunction simpliciter restraining the defendant from cutting and making a concrete pathway through the plaint schedule property without consent of the plaintiff and the cause of action had arisen on an apprehension that the defendant will do some unlawful activity, by way of trespassing into the property and cutting trees, without the consent of the plaintiff.

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On the aforesaid rival pleadings, the trial court considered the question of maintainability of the suit in view of Section 249 of the Kerala Panchayat Raj Act, 1994 and dismissed the suit on a finding that the suit is not maintainable for want of notice under Section 249 of the Kerala Panchayat Raj Act. Though the plaintiff had challenged the said order before the lower appellate court, that court also concurred with the aforesaid finding and upheld the judgment. The legality and propriety of the findings, whereby the

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RSA.1047/06-G :3:

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courts below concurrently found that the suit is not maintainable, are assailed in this Regular Second Appeal.

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Heard the learned counsel for the appellant and the learned Standing Counsel appearing for the respondent Panchayat.

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The sum and substance of the arguments

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advanced by the learned counsel for the appellant/plaintiff is that for instituting the suit against the Panchayat or its officers for the prevention of an unlawful activity, a statutory notice, under Section 249 of the Panchayat Raj Act, 1994, is not required, as such an activity will not come under the part of an official duty.

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On the other hand, the learned Standing Counsel for the respondent Panchayat contended that prior notice under Section 249 of the Panchayat Raj Act is a statutory mandate which requires that unless notice is issued, as contemplated under Section 249,

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RSA.1047/06-G :4:

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the suit is not maintainable, whatever be the allegation in the plaint. There was an unlawful encroachment from the part of the appellant and the present suit was intended to prevent the said unlawful encroachment. In view of the submissions made at the Bar, the short point that arises for consideration is, whether the courts below are justified in finding that the suit is not maintainable, as the same was instituted without issuing statutory notice under Section 249 of the Panchayat Raj Act.

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For considering the maintainability of the suit, it is incumbent upon the court to consider at first, the plaint averments and the relief sought for in the plaint. It is needless to say that the maintainability of the suit depends upon the averments in the plaint and the relief sought for therein. In the instant case, the suit is one for an injunction restraining the defendant Secretary from cutting and making concrete pathway through the

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RSA.1047/06-G :5:

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plaint schedule property without the consent of the plaintiff. Suffice it to say, without the consent of the owner of a property, the Panchayat has no right to encroach upon his property or cut and remove trees for widening of a road. Thus, the plaintiff is apprehensive of an unlawful activity from the part of the respondent Secretary.

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Coming to Section 249(1) of the Kerala Panchayat Raj Act, 1963, it is apposite to take notice of the relevant provision, which is extracted below:

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“Institution of suits against authorities of Panchayats, their officers, etc.- (1) No suit, or other civil proceedings against a Panchayat or against the President, the Vice-President or any other member, or employee thereof or against any other person acting under the direction of the Panchayat or any member or employee thereof for anything done or purporting to be done under this Act in its or his official capacity.”

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On an analysis of the aforesaid provision, it is

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discernible that the bar of suit will come into

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RSA.1047/06-G :6:

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operation against the Panchayat or President or Vice President or any other member or employee thereof or other person acting under the direction of the Panchayat or the aforesaid persons when anything done or purporting to be done under the Panchayat Raj Act in its or his official capacity. Thus, anything done or purporting to be done by the Panchayat or the persons and employees referred to in Section 249 under the Kerala Panchayat Raj Act in its or their official capacity alone is insulated under Section 249(1) of the Panchayat Raj Act. In a suit against any Act which goes beyond or out of the Panchayat Raj Act or the official capacity of the persons and employees mentioned in Section 249(1), the Panchayat or such persons or employees will not get the said immunity under the said exclusionary provision of the statute. This Court holds that for filing a suit against a Panchayat or its officers mentioned above, to prevent any unlawful act, like trespass, forceful

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RSA.1047/06-G :7:

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encroachment, etc., having no sanction under the Panchayat Raj Act, the statutory notice under Section 249(1) of the Panchayat Raj Act is not required and the suit is well maintainable under general law for the time being in force. Suffice it to say that notice under Section 249(1) is required to sue against any illegality or impropriety or incorrect findings of anything done or purporting to be done under the Panchayat Raj Act or to raise any claim against panchayat or the persons or employees referred to in Section 249(1) of the Panchayat Raj Act, for anything done or purporting to be done under the Panchayat Raj Act.

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The aforesaid view is supported by the decision reported in Mammadhan Kutty v. Pallivasal Grama Panchayat [2004 (1) KLT 751] also. In the above analysis, this Court is inclined to set aside the impugned judgments and decrees passed by the courts below and I do so. The matter will stand remitted

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RSA.1047/06-G :8:

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back to the trial court for fresh trial in accordance

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with law.

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All pending interlocutory applications will stand

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closed.

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K.HARILAL, Judge.

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okb

Subhadra v. Secretary,Thrikkakara Grama Panchayath

Case brief

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Subhadra v. Secretary,Thrikkakara Grama Panchayath

Case brief

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