Allowed

Abraham K.Alex v. Kunjumon

Kerala HC20 Jul 2016WP(C)/19929/2015

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of a writ petition challenging a Panchayat resolution permitting a respondent to reclaim land (thodu) for construction. The Court quashed the resolution due to lack of notice and pending civil litigation.

What did the court decide?

Set aside Ext.P8; direct Panchayat to reconsider the matter after notice to all parties considering the pending civil suit O.S.No.531/2015 within two months.

Abraham K.Alex Vs Kunjumon — Landlord and Tenant | 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 A.M.SHAFFIQUE

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WEDNESDAY, THE 20TH DAY OF JULY 2016/29TH ASHADHA, 1938

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WP(C).No. 19929 of 2015 (M)

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PETITIONER(S) :

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1. ABRAHAM K.ALEX, KARUVELITHARA KEERICKAL, MAMPUZHAKARY, RAMANKARY.P.O., ALAPPUZHA DISTRICT.

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2. ROSY.K.ALEX ALIAS ROSY SAJAN, KARUVELITHARA KEERICKAL, MAMPUZHAKARY, RAMANKARY.P.O., ALAPPUZHA DISTRICT, REPRESENTED BY HER POWER OF ATTORNEY HOLDER MR. ABRAHAM K. ALEX.

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3. JINSY K.ALEX, KARUVELITHARA KEERICKAL, MAMPUZHAKARY, RAMANKARY.P.O., ALAPPUZHA DISTRICT, REPRESENTED BY HER POWER OF ATTORNEY HOLDER MR. ABRAHAM K. ALEX.

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BY ADVS. SRI.JOMY GEORGE

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SRI.SEBASTIAN THOMAS SRI.P.REJINARK SRI.DEEPAK MOHAN SMT.A.MINI JOSEPH

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RESPONDENT(S) :

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1. KUNJUMON, ERUPATHILCHIRA, MITHRAKARY.P.O., MUTTAR VILLAGE, KUTTANADU TALUK, ALAPPUZHA DISTRICT-689 595.

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2. SECRETARY, MUTTAR GRAMA PANCHAYAT, ALAPPUZHA DISTRICT-689 571.

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3. MUTTAR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, ALAPPUZHA DISTRICT-689 571.

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R1 BY ADVS. SRI.A.JAYASANKAR SRI.C.V.MANUVILSAN SRI.MANU GOVIND

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 19929 of 2015 (M)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXT.P1:	TRUE COPY OF THE COMPLAINT DATED 09/06/2015 FILED BY
	THE PETITIONER BEFORE THE 3RD RESPONDENT.

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EXT.P2: TRUE COPY OF THE PLAINT IN O.S NO.531/2015 DATED 12/06/2015 FILED BY THE PETITIONERS BEFORE THE MUNSIFF COURT, ALAPPUZHA.

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EXT.P3:	TRUE COPY OF THE APPLICATION FOR TEMPORARY INJUNCTION PLAINT IN O.S NO.531/2015 DATED 12/6/2015 FILED BY THE PETITIONERS BEFORE THE MUNSIFF COURT, ALAPPUZHA.
EXT.P4:	TRUE COPY OF THE APPLICATION FOR APPOINTMENT OF AN ADVOCATE COMMISSIONER DATED 12.06.2015 IN O.S NO.531/2015 FILED BY THE PETITIONERS BEFORE THE MUNSIFF COURT, ALAPPUZHA.
EXT.P5:	TRUE COPY OF THE COMMISSION REPORT DATED 12/06/2015 IN O.S NO.531/2015.
EXT.P6:	TRUE COPY OF THE LAWYER NOTICE DATED 17/06/2015 SENT BY THE PETITIONERS TO THE RESPONDENT 1 AND 3.
EXT.P7:	TRUE COPY OF THE FIELD MEASUREMENT SKETCH ISSUED BY THE VILLAGE OFFICE, MUTTAR.
EXT.P8:	TRUE COPY OF THE RESOLUTION DATED 20/06/2015 PASSED BY THE 3RD RESPONDENT.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

**A.M.SHAFFIQUE, J * * * * * * * * * * * *** W.P.C.No.19929 of 2015

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Dated this the 20^th day of July 2016

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J U D G M E N T

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Petitioner challenges Ext.P8, a resolution passed by the Panchayat by which the Panchayat has taken a decision to permit the 1^st respondent to reclaim the thodu by putting up a pipe having a diameter of 10 inches to enable the 1^st respondent to take materials for construction of a building in his property.

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The contention urged by the petitioners is that the thodu passes through their property and therefore the Panchayat has no jurisdiction in the matter. That apart, the resolution has been passed without hearing the petitioners. It is also contended that the petitioners have filed a suit as O.S.No.531/2015 before the Munsiff Court, Alappuzha and an interim injunction has been issued restraining the 1^st respondent herein from reclaiming the aforesaid thodu and the interim injunction is pending.

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Learned counsel for the 1^st respondent submits that the Panchayat had passed a resolution proceeding on the basis that the thodu belongs to the Panchayat. The 1^st respondent does not have any access to the property in order to take building

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W.P.C.No.19929/2015

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materials to his property for constructing a house. This procedure had been adopted by the Panchayat only as a temporary measure and only for the purpose of taking construction materials to the property of the 1^st respondent and after that, temporary construction will be removed. It is further submitted that when Ext.P8 resolution was passed, there was no injunction order passed by the Civil Court.

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Having regard to the aforesaid submission, it is not disputed that a civil suit is pending between the parties with regard to the right of the 1^st respondent to reclaim the aforesaid thodu. The petitioners have also a case that the thodu passing through their property is not a Panchayat thodu, as contended by the 1^st respondent.

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Taking into consideration the aforesaid factual situation, I am of the view that this writ petition can be disposed of as under: i) Ext.P8 is set aside. ii) The Panchayat shall re-consider the matter after notice to the petitioners and the 1^st respondent and also taking into account the pendency of the civil suit O.S.No.531/2016 and the interim order passed thereafter.

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W.P.C.No.19929/2015

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iii) This shall be done within a period of two months from

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the date of receipt of a copy of this judgment.

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(sd/-)

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(A.M.SHAFFIQUE, JUDGE)

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jsr

Abraham K.Alex v. Kunjumon

Case brief

What is this about?

What did the court decide?

Abraham K.Alex v. Kunjumon

Case brief

What is this about?

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