Disposed

P.O. Joseph v. the Tahsildar

Kerala HC8 Nov 2018WP(C)/1530/2017

Case brief

AI extract

What is this about?

This writ petition sought a removal of encroachments on a Panchayat road. The single Bench held that the Grama Panchayat has exclusive duty to remove such encroachments under the Kerala Panchayat Raj Act. The court directed the Tahsildar to prepare a survey sketch and the Panchayat to follow specific removal procedures within prescribed timelines.

What did the court decide?

Directed the Tahsildar to prepare a survey sketch within one month. Directed the Grama Panchayat to issue notices and remove the encroachment under the specific Rules within two months thereafter.

P.O. Joseph Vs the Tahsildar — Pension and Retirement Benefits | Kerala HC (2018)

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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 ALEXANDER THOMAS

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THURSDAY ,THE 08TH DAY OF NOVEMBER 2018 / 17TH KARTHIKA, 1940

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WP(C).No. 1530 of 2017

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PETITIONER/S:

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P.O. JOSEPH AGED 53 YEARS S/O.OUSEPH, PAREKKATTIL HOUSE, ANAPPARA P.O., MANJAPRA, THURAVOOR, ANGAMALY, ERNAKULAM DISTRICT, PIN: 683 581.

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BY ADVS. SRI.T.A.UNNIKRISHNAN SRI.T.R.KANNAN

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RESPONDENT/S:

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1 THE TAHSILDAR ERNAKULAM DISTRICT, PIN: 683 101.

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2 THE VILLAGE OFFICER THURAVOOR VILLAGE, ANGAMALY, ERNAKULAM DISTRICT, PIN: 683 572.

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3 THURAVOOR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, THURAVOOR, ANGAMALY, ERNAKULAM DISTRICT, PIN: 683 572

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4 KRISHNAN, AGED 60, S/O.PENGAN, CHOTTUMARATHAN, ANAPPARA P.O., THURAVOOR, ANGAMALY, ERNAKULAM DISTRICT 683 581.

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BY ADVS. GOVERNMENT PLEADER SRI.ISSAC.M.PERUMPILLIL, SC, THURAVOOR GRAMA PANCHAYAT SRI.V.MAHENDRANATH SRI.ISSAC.M.PERUMPILLIL SC THURAVOOR GRAMA PANCHAYAT SRI.R.SYLESHWAREN NAIR

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OTHER PRESENT:

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SMT.A.C.VIDHYA,GOVT.PLEADER FOR R1 AND R2, SRI.ISSAC.M.PERUMPILLIL,SC FOR R3

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SRI.V.MAHENDRANATH- R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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W.P.(C)No.1530 of 2017

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JUDGMENT

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The prayer in this Writ Petition (Civil) is as

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follows:

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“i.issue a writ of mandamus or such other writ order or direction directing the respondents 1 to 3 to remove the encroachment made up on Anappara Cana Bund Diary Road by the fourth respondent or any other person and restore the public road and preserve it forth with.”

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2. Heard Sri. T.A.Unnikrishnan, the learned

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counsel appearing for the petitioner, Smt. A.C. Vidhya, the learned Government Pleader appearing

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for respondents 1 and 2, Sri.Issac. M. Perumpillil, the learned counsel appearing for R3 (Thuravoor Grama Panchayat) and Sri. V. Mahendranath, the learned counsel appearing for R4.

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3. According to the petitioner, he is residing with his family on the side of “Anappara

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Canal Bund Diary Road”, vested with the 3^rd respondent Thuravoor Grama Panchayat. That the road is having width of 8 meters and length of 130

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W.P.(C)No.1530/2017

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meters and has been included as Entry No.1 in the list of Panchayat roads in Ext.P1 list of roads

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maintained by the 3^rd respondent Panchayat. According to the petitioner, the contesting respondent No.4 has encroached upon this road and the way and access through this road is completely blocked. Thereupon the petitioner has preferred

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Ext.P2 complaint dated 4.2.2016 before the 3^rd respondent for taking effective action for removal of the encroachment made at the instance of the 4^th respondent. That thereupon the official respondents had taken steps and the encroachment of the panchayat road was removed and the road was restored in January 2014. That thereafter again

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encroachment was again made by the 4^th respondent and the way is completely blocked. That the official respondents 1 to 3 are not taking any action etc. It is in the light of these aspects, the petitioner has filed the instant with the aforementioned prayers.

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4. The 1^st respondent, Tahsildar, Aluva has filed statement dated 15.5.2018 in this case. In

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paragraph 2 of the statement, it is stated that the petitioner is having 20 cents of land in re-survey Block No.14, Resurvey No.99/6 of Thuravoor Village and the said property is situated on the side the Anappara Canal Bund Diary Road, which is vested with the 3^rd respondent Thuravoor Grama Panchayat and the road is having a width of 8 meters and length of 130 meters. It is further stated in paragraph 3 of the said statement that the 4^th respondent is residing in the last point of this road and has encroached upon the portion of the Canal Bund Road and has blocked the said road and that he has partly obstructed the access to the petitioner’s property

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through the Canal Bund Road crossing the bridge. That the petitioner had earlier approached the 3^rd respondent Panchayat authorities against the encroachment made by R4, but no action was taken by R3 Panchayat to evict the encroachment. Thereafter, the petitioner had approached the Revenue Divisional Officer, Fort Kochi who in turn

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issued directionsto the Assistant Executive

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W.P.(C)No.1530/2017

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Engineer, Irrigation Section, Angamaly to take steps to remove the encroachment. Later, it came to the notice of respondents 1 and 2 that the Canal Bund Road is under the control of the Thuravoor Grama Panchayatand and the ownership of the Canal Bund Road is thus vested with the Panchayat authorities and that they are the authorities to remove the obstruction made at the instance of the 4^th respondent. Further, it is stated in paragraph 5 of the said statement of R1 that the State Government has issued G.O. (P)No.191/2016/RD dated 1.3.2016, whereby the Secretaries of the Grama Panchayats concerned have been empowered to the powers of a Collector under

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the Kerala Land Conservancy Act, 1957 to deal with such situations. In the light of these aspects, it is asserted by the 1^st respondent that the duty

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to remove such encroachments is thus cast exclusively with the 3^rd respondent Grama Panchayat so as to ensure that strict action is taken to evict the encroachment by 4^th respondent etc.

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5. It is not in dispute that the road in

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question (Anappara Canal Bund Diary Road)has been included as entry No.1 in Ext.P1 list of roads maintained by the 3^rd respondent Thuravoor Grama Panchayat. Section 272 of the Kerala Panchayat Raj Act, 1994 mandates that all roads, markets, wells etc vested in or maintained by a Panchayat shall be open to use and enjoyment of all persons etc.

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6. Sections 169 and 170 of the Kerala

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Panchayat Raj Act, 1994 provide as follows:

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“ 169. Vesting of public roads in village Panchayats.- (1) Notwithstanding anything contained in the Kerala Land Conservancy Act, 1957 (8 of 1958), or in any other law for the time being in force, all public roads other than those classified by the Government as National Highway, State Highway or major district roads, bridges, culverts, ditches, dykes, fences on or beside the same protective devices and all adjacent land not being private property appertaining thereto, within the Panchayat are ie-

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(a) in the District Panchayats--- All district roads other than major district road within the area of more than one Block Panchayat;

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(b) in the Block Panchayats- District roads and village roads other than major district roads within the area of more than one Village Panchayat comprised in a Block Panchayat;

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(c) in the Village Panchayats- other village roads, paths and lanes within the Village Panchayat area.

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Together with all pavements, stones and

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other materials and other things installed therein, all drains culverts made along side or under such roads and all works, materials and things appertaining thereto may be deemed as transferred to and vested absolutely in the Panchayat area.

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(2) Subject to the provisions of this Act, all rights and liabilities of the Government in relation to the public roads and other properties, materials and things vested in the Panchayat under subsection (1) or sub-section (4) shall, from the date of such vesting, be the rights and liabilities of the Panchayat.] (3) Notwithstanding anything contained in sub-section (1) or sub-section (2), the Government may at any time, by notification in the Gazette, exclude from the operation of this Act any such public road, sewer, drain, drainage work, tunnel or culvert and may also modify or cancel such notification, and thereupon they shall revest in Government:

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Provided that, before issuing such a notification, the Government shall consult the Panchayat concerned and give due regard to the objections, if any. (4) The Government may, by notification in the Gazette, order the transfer to and vesting in, a Village Panchayat, of any public road or class of public roads in the Village Panchayat and thereupon such road or roads shall, notwithstanding anything contained in sub-section (1), but subject to the other provisions of this Act, stand transferred to and vest in, such Village Panchayat.

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(5) It shall not be lawful for any persons to occupy any land which is transferred to and vested in a Panchayat under sub-section (1) or sub-section (4), whether a poramboke or not, without prior permission from the Panchayat concerned.

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Explanation.- For the removal of doubts it is hereby declared that the erection

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of any wall, fence or building or the putting up of any overhanging structure or projection (whether on a temporary or permanent basis) on or over any land aforesaid shall be deemed to be occupation of such land.

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170. Panchayats to maintain the roads properly.- (1) It shall be the duty of the Panchayat to maintain properly the roads vested in it and to prevent encroachment on it.

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(2) The Village Panchayat shall keep all public roads and important public paths in its area free from garbage, sewage and other waste materials and shall protect such roads and public paths from encroachment

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(3) The Village Panchayat may, in such manner as it may deem fit, dispose of all garbage, sewage and other waste materials collected by it while cleaning public roads, public paths and drains. ”

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7. Going by the mandate of sub section (1) of Section 169, the road in question will stand vested with the Panchayat. Hence, the 1^st respondent and the Revenue Divisional Officer are right in contending that as the road is legally vested with the 3^rd respondent Thuravoor Grama Panchayat, it is their exclusive duty to take action for removal of the encroachment in question. The procedure for removal of such encroachment is contained in the Kerala Panchayat Raj (Removal of Encroachment and Imposition and

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Recovery of Penalty for Unauthorized Occupation)Rule, 1996. It is for the 3^rd respondent Grama Panchayat to take effective action by following the procedure under that Rule so as to ensure that the encroachment made into the above said Panchayat road at the instance of the 4^th respondent is removed after due prior notice to that party. If the 1^st respondent Tahsildar has already conducted the survey of the road through the Taluk Surveyor concerned, then copy of the survey sketch showing that encroachment should be immediately furnished to the Secretary of the 3^rd respondent Grama Panchayat. If such survey sketch is not so prepared, the Tahsildar should ensure that the road in question is surveyed with the assistance of the Taluk Surveyor concerned with due prior

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notice to the 3^rd respondent Grama Panchayat, respondent No.4 as well as the petitioner, so as to ascertain the encroachment made into that road by the 4^th respondent. Copy of the report of the Taluk Surveyor along with the copy of the survey

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sketch prepared by him should be furnished to the

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petitioner as well as respondents 3 and 4. Thereafter, the competent authority of the 3^rd respondent Grama Panchayat will issue notices to

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the 4^th respondent and the petitioner so as to finalise action under the above said Rules for removal of the encroachment. The 1^st respondent will ensure that the process of preparation of survey sketch as aforestated is completed within one month. Thereafter the 3^rd respondent Grama Panchayat will finalise the action under the above said Rules for removal of encroachment within two months thereafter. The Registry will forward a copy of this judgment to R4 for necessary information.

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With these observations and directions, the above writ petition (Civil) will stand finally disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE.

acd

W.P.(C)No.1530/2017

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXT.P1 TRUE COPY OF THE RELEVANT PAGES OF THE ROAD REGISTRAR, MAINTAINED BY THE THIRD RESPONDENT EXT.P2 TRUE COPY OF A COMPLAINT DATED 4/2/2016 SUBMITTED BY THE PETITIONER TO THE THIRD RESPONDENT

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TRUE COPY

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P.S. TO JUDGE.

P.O. Joseph v. the Tahsildar

Case brief

What is this about?

What did the court decide?

P.O. Joseph v. the Tahsildar

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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