Allowed

M K Varghese v. the R D O

Kerala HC17 Jan 2017WP(C)/728/2016

Case brief

AI extract

What is this about?

The High Court quashed the refusal of KSEB to grant an electricity connection to petitioners' 10HP motor for irrigation. The Court held that since land conservancy proceedings under the KLC Act had confirmed the land was puramboke and vacated the third party's encroachment, the refusal based on a civil court injunction was unsustainable. The Court allowed the writ petition without remitting the ci

What did the court decide?

The refusal order (Ext.P-10) was set aside. The electricity connection shall be continued if the motor remains installed in the puramboke land confirmed by the Tahsildar in the interim order.

M K Varghese Vs the R D O — Writ and Judicial Review | Kerala HC (2017)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

¶4

TUESDAY, THE 17TH DAY OF JANUARY 2017/27TH POUSHA, 1938

¶5

WP(C).No. 728 of 2016 (M)

¶6

PETITIONER(S):

¶7

1. M.K. VARGHESE, MANAPPURAM HOUSE, NIRANAM KIZHAKKUMBHAGOM P.O., THIRUVALLA (CONVENOR, AYYANKONARY, PADASEKHARA SAMITHY).

¶8

2. SANTHOSH P.C., PULLUVALLIL HOUSE, KADAPRA - MANNAR P.O., NIRANAM (CONTRACTOR, AYYANKONARY, PADASEKHARA SAMITHY).

¶9

BY ADVS.SRI.T.P.PRADEEP

¶10

SRI.P.K.SATHEES KUMAR

¶11

RESPONDENT(S):

¶12

1. THE R. D. O., THIRUVALLA - 689 101.

¶13

2. THE TAHSILDAR, THIRUVALLA - 689 101.

¶14

3. THE AGRICULTURAL OFFICER, KRISHI BHAVAN, NIRANAM - 689 621.

¶15

4. ASSISTANT ENGINEER,

¶16

K.S.E.B., ELECTRICAL SECTION, KADAPRA, NIRANAM P.O., THIRUVALLA. 689 621.

¶17

5. YOHANNAN, KODUVASSERIL HOUSE, NIRANAM KIZHAKKUMBHAGOM P.O., THIRUVALLA. 689 621.

¶18

WP(C).No. 728 of 2016 (M)

¶19

6. NIRANAM GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY NIRANAM GRAMA PANCHAYATH, NIRANAM P.O., 689 621.

¶20

R1-R3 BY SENIOR GOVERNMENT PLEADER SRI. C.P.PRADEEP R4 BY ADVS. SRI.SUDHEER GANESH KUMAR R., SC, KSEB SRI.SAJEEVKUMAR K.GOPAL,SC,KSEB

¶21

R5 BY ADV. SRI.R.GIREESH VARMA

¶22

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶23

SKG

¶24

WP(C).No. 728 of 2016 (M)

¶25

APPENDIX

¶26

PETITIONER ----------	(S)' -----	EXHIBITS --------
EXT.P-1:	TRUE	COPY OF	THE	PHOTOGRAPHS OF THE PADASEKHARAM
EXT.P-2:	TRUE RESP	COPY OF ONDENT	THE	CERTIFICATE ISSUED BY THE 3RD
EXT.P-3:	TRUE	COPY OF	THE	PHOTOGRAPHS
EXT.P-4:	TRUE IST	COPY OF RESPONDE	THE NT	ORDER DATED 2.3.2015 ISSUED BY THE
EXT.P-5:	TRUE WITH	COPY OF SKETCH	THE	REPORT OF THE TALUK SURVEYOR ALONG
EXT.P-6:	TRUE 2ND	COPY OF RESPONDE	THE NT	ORDER DATED 15.7.2015 ISSUED BY THE
EXT.P-7:	TRUE NO.2	COPY OF 444/15 I	THE N OS	ORDER DATED 17.12.2015 IN IA NO.420/2015
EXT.P-8:	TRUE 4.12	COPY OF .2015 IS	THE SUED	COPY OF THE RESOLUTION DATED BY THE 6TH RESPONDENT
EXT.P-9:	TRUE 4TH	COPY OF RESPONDE	THE NT	APPLICATION SUBMITTED BEFORE THE
EXT.P-10:	TRUE BY T	COPY OF HE 4TH R	THE ESPON	COMMUNICATION DATED 1.1.2016 ISSUED DENT

¶27

RESPONDENT(S)' --------------	EXHIBITS ---------
EXHIBIT R5(a)-	TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER, NIRANOM.
EXHIBIT R5(b)-	TRUE COPY OF THE INTERIM ORDER PASSED BY THE 1ST RESPONDENT
EXHIBIT R5(c)-	REPORT SUBMITTED BY THE ASSISTANT EXECUTIVE ENGINEER (AGRICULTURE)

/TRUE COPY/

P.S. TO JUDGE

SKG

K. VINOD CHANDRAN, J

W.P(C) No. 728 of 2016 M

¶34

¶35

Dated this the 17^th day of January, 2017

¶36

J U D G M E N T

¶37

The petitioner was aggrieved with the refusal of

¶38

the KSEB to grant power connection to operate a 10HP

¶39

Motor installed in puramboke land, for the purpose of irrigating the paddy fields belonging to the Padasekhara

¶40

Samithi; of which the first petitioner is the Convener and

¶41

the 2^nd petitioner is the contractor. The objection was raised from the side of the 5^th respondent on the ground of

¶42

the motor having been placed within his property.

¶43

It is submitted by the learned Counsel for the

¶44

petitioner that the motor is operated only for a period of

¶45

WPC.No.728/2016

¶46

: 2 :

¶47

three months in an year for irrigating the fields. The same

¶48

has been continued right from the year 2007 and there is a concrete foundation built in that spot, where the l0 HP motor is installed for the purpose of irrigating the fields; to which electricity connection is granted for the period in

¶49

which farming activities are carried out.

¶50

The 5^th respondent in the previous year

¶51

encroached into the area and built a wall enclosing the concrete foundation laid for fixing the motor. The Padasekhara Samithi members preferred a complaint before the RDO, which was disposed of by Ext.P4. The RDO in Ext.P4 order; finding the installation of motor to be inevitable for carrying on cultivation in the adjacent paddy fields; directed the additional Tahsildar of Thiruvalla to conduct a survey of the area along with the

¶52

Taluk Surveyor and decide on the title of the property. A

¶53

WPC.No.728/2016

¶54

: 3 :

¶55

survey is said to have been conducted and orders were

¶56

passed by Ext.P6 under the Kerala Land Conservancy Act, 1957. By Ext.P6, in addition to the 5^th respondent, many others were also sought to be evicted from the puramboke land. The 5^th respondent who was in occupation of 17 Sq.Meters out of the 52.80 Ares puramboke situated north of Survey No.519/1 was directed to surrender the encroachment. It is also submitted that in pursuance of Ext.P6 the compound wall constructed by the 5^th respondent was demolished and the petitioners were allowed to install a motor in the concrete foundation

¶57

existing in the said 17 Sq,Meters land.

¶58

The 5^th respondent then approached the

¶59

Munsiffs Court and obtained Ext.P7 order of injunction

¶60

against the Padasekhara Samithi from encroaching into the plaintiff's property; ie., the 5^th respondents property.

¶61

WPC.No.728/2016

¶62

: 4 :

¶63

The State was made a party in the suit but avoided in the

¶64

injunction application for obvious reasons of the inability to comply with Section 80 of the CPC. The encroachment into the Puramboke having been evicted by the State, the petitioners had installed the motor and had sought for electricity connection which was denied for reason of the injunction order.

¶65

Here it is pertinent to note that the 5^th

¶66

respondent had not impleaded the State or its officers in

¶67

the interlocutory application filed before the Munsiffs Court. The encroachment having been vacated by an order under the KLC Act; there was a bar to challenge the said proceedings before a Civil Court. It is also pertinent that the orders passed under the KLC Act being Ext.P6 was not

¶68

challenged before the authorities as prescribed under the

Act.

WPC.No.728/2016

: 5 :

When the matter came up for admission, on

¶73

8.1.2016 an interim order was passed in the following

¶74

manner:

¶75

“There will be an interim direction to respondents 2 and 4 to jointly visit the disputed area where the 10 HP motor has been installed by the petitioners who are

¶76

members of the Ayyankonary

¶77

Padasekhara Samithi within three days from today. The said respondents shall ascertain whether the 10 HP motor is installed in an area which falls under a purambokke land, and if so, based on the certification by the 2^nd respondent of this fact, the 4^th respondent shall forthwith

¶78

provide electric connection to the said 10

¶79

WPC.No.728/2016

¶80

: 6 :

¶81

HP motor for the purposes of operating

¶82

the same. The 2^nd respondent shall

¶83

intimate the 4^th respondent of the date and time on which he proposes to inspect

¶84

the area in question.”

¶85

On the basis of the interim order a counter

¶86

affidavit has been filed after conducting inspection. It has

¶87

been categorically stated that the land in question is a puramboke land in Resy no. 517 of block no. 1 of Niranam Village of Thiruvalla Taluk. It is stated to be part of a

¶88

“thodu” known as “Mundanaari thodu” which is flowing 100m away from Mundanaari Hospital Junction in Niranam Village. The proceedings at Ext.P6 also shows that the encroachment by the 5^th respondent was of 17

¶89

sq.meters lying in Sy. no.517/I lying to to the north of the lands comprised in Sy. no.519/1 in which is comprised the

¶90

WPC.No.728/2016

¶91

: 7 :

¶92

5^th respondents property.

¶93

The 5^th respondent relied on Exts.R5(a) and R5

¶94

(b) to contend that the motor is situated in Re.sy. No.519/1

¶95

in which the petitioner's property was comprised in. There is no admission in Ext. R5(a) that the motor is situated in

¶96

Sy. No 519/1. The Village Officer in Ext.R5(a) merely reports on the rival contentions and seeks for a survey to

¶97

exactly determine the positioning of the motor. This is the report based on which (read as item no 2) the RDO issued Ext. P4. Ext. R5(b) is again a status quo order passed by the RDO pending the proceedings initiated as per Ext P4. Ext.R5 (b) is dated 26.05.2015 after which the order under

¶98

the KLC Act was issued; evidenced by Ext.P6 dated 15.07.2015.

¶99

Further, the land conservancy proceedings

¶100

specifically indicated that the encroachment having been

¶101

WPC.No.728/2016

¶102

: 8 :

¶103

removed from the northern side of Sy. no. 519/1. This was

¶104

done after a survey of the land and the petitioner has not attempted to challenge the same. At the risk of repetition, the petitioner has not obtained any injunction against the State and the order under KLC Act, cannot be challenged in a suit; for reason of the said jurisdiction being ousted by

¶105

Section 20 of the KLC Act.

¶106

Yet again, pursuant to an interim order,a further inspection was carried out by the Additional Tahsildar and an affidavit has been filed categorically stating that the motor is situated in Re.sy.no.517/1 and the same is included in the puramboke situated to the north of Sy.no. 519/1. In such circumstances, this Court does not find any reason to uphold the action of the Electricity Board in having refused to grant electric connection . Ext.P10 hence is set aside. The electric connection already

¶107

WPC.No.728/2016

¶108

: 9 :

¶109

granted to the petitioners shall be continued as and when

¶110

requested, if the motor is installed in the premises now

¶111

specifically referred to by the Additional Tahsildar in the counter.

¶112

Writ petition would stand allowed. The learned Counsel for the respondent prays that the issue be left to

¶113

the lower court to be decided in the suit. The disputed land

¶114

having been found to be a puramboke land and the encroachment over that having been vacated by Ext.P6 order under the KLC order; on the reasoning stated above

¶115

and reiterated, this Court is of the opinion that no such

¶116

liberty be reserved for the judgment herein decides the issue. No Costs.

¶117

Sd/-

¶118

jma

¶119

(K. VINOD CHANDRAN, JUDGE) //true copy//

¶120

P.A to Judge

M K Varghese v. the R D O

Case brief

What is this about?

What did the court decide?

M K Varghese v. the R D O

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Jameskutty Vs the Authorized Officer Federal Bank Ltd.

Mrs. Geena George Vs Hdfc Bank Limited

Sajini M.J. Vs Can Fin Homes (P) Ltd.

Kitem Garments Ltd. Vs State of Kerala

Kaja Hussain a Vs the Authorised Officer and Another

Mohammed Noushad Vs the Inspecting Asst. Commissioner (Int)