Disposed

Sujatha Purushan v. the District Collector

Kerala HC2 Nov 2018WP(C)/19943/2018

Case brief

AI extract

What is this about?

The High Court of Kerala directed the 3rd respondent-Tahsildar to complete survey, measurement, and demarcation of the disputed public pathway and panchayat land with prior notice to affected parties. The report must be submitted to the 2nd respondent-SDM for adjudication under Section 133 of Cr.P.C within time limits.

What did the court decide?

Directions issued to the Tahsildar to complete survey and demarcation within 6 weeks and submit the report to the SDM for adjudication under Sec. 133 Cr.P.C within 3 months.

Sujatha Purushan Vs the District Collector — Land Acquisition | 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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FRIDAY ,THE 02ND DAY OF NOVEMBER 2018 / 11TH KARTHIKA, 1940

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WP(C).No. 19943 of 2018

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PETITIONER/S:

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SUJATHA PURUSHAN

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AGED 50 YEARS W/O. LATE PURUSHAN, MAKARAMCHERIYIL, NJANDUKADUTHURUTH, KOTTAYAM DISTRICT-686 001

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BY ADVS. SRI.BINDU SREEKUMAR SMT.THUSHARA PAILY

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RESPONDENT/S:

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1 THE DISTRICT COLLECTOR, CIVIL STATION, KOTTAYAM DISTRICT 686001

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2 REVENUE DIVISIONAL OFFICER, PALA, KOTTAYAM DISTRICT.686001

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3 TAHASILDAR, PALA, KOTTAYAM DISTRICT.686001.

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4 THE VILLAGE OFFICER, CHEMBU,VAIKOM.686 608

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5 TALUK SURVEYOR, SURVEY DEPARTMENT, VAIKOM 686608

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6 CHEMBU GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, CHEMBU GRAMA PANCHAYAT, BRAHMAMANGALAM P.O., KOTTAYAM DISTRICT -686 001

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7 THE SECRETARY CHEMBU GRAMA PANCHAYAT, BRAHMAMANGALAM P.O., KOTTAYAM DISTRICT -686 001

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W.P(C)No.19943 of 2018

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8 ADDL.R8-NAJEEB, AGED 50 YEARS S/O ALIKUNJU, UPPATHEZHATHU HOUSE, KATTIKUNNU, CHEMBU.P.O., KOTTAYAM 686 608

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9 ADDL.R9-THOMAS, AGED 50 YEARS VEENIKANDATHIL HOUSE, S/O NOT KNOWN, KATTIKUNNU, CHEMBU P.O, KOTTAYAM 686 608 (ADDL 8TH AND 9TH RESPONDENTS ARE IMPLEADED AS PER THE ORDER DATED 19.06.2018 IN IA NO.10717/2018)

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SRI.M.R.DHANIL,GOVT.PLEADER FOR R1 TO R5, SRI.ATHUL SHAJI FOR R6 AND R7, SRI.G.SREEKUMAR(CHELUR) FOR ADDL.R8 AND R9

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P(C)No.19943 of 2018

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ALEXANDER THOMAS, J.

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=============================

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W.P(C)No.19943 of 2018

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=============================

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Dated this the 2^nd day of November, 2018

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JUDGMENT

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The prayers in the above Writ Petition (Civil)

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are as follows:

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i) To issue a writ of mandamus or any other writ, or order or direction directing the 5^th respondent to complete the survey measurements in the pubic pathway towards the public kadavu with immediate effect.

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ii) Direct the 7^th respondent to make arrangement for the free movement towards Uppathezhath Public Kadavu, so as to enable the petitioner and her children for the ingress and egress to reach their home.

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iii) To grant the such other reliefs as this Honourable Court deems fit and proper in the nature and circumstances of the case."

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2. Heard Smt.Bindu Sreekumar, learned counsel

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appearing for the petitioner, Sri.M.R.Dhanil,

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learned Government Pleader appearing for the official respondents 1 to 5. Sri.Athul Shaji, learned counsel appearing for R-6 & R-7, Sri.G.Sreekumar(Chelur), learned counsel appearing

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W.P(C)No.19943 of 2018

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for additional respondents 8 & 9. It is now submitted by Smt.Bindhu Sreekumar, learned counsel appearing for the petitioner that the petitioner has now submitted Ext.P-9 petition dated 03.10.2018 before the 2^nd respondent-Sub-Divisional Magistrate/RDO concerned, seeking intervention under Sec.133 of Cr.P.C for removing the obstructions in respect of the use of the public pathway in question.

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3. It is further submitted by the

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petitioner’s counsel that direction may be issued by this Court to ensure that the 2^nd respondentSub-Divisional Magistrate adjudicates the matter in Ext.P-9 under Sec.133 of Cr.P.C, after granting reasonable opportunity to the petitioner and all

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the affected parties concerned, within a reasonable time that may be fixed by this Court.

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4. The learned Government Pleader has

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submitted that the 2^nd respondent has filed a statement dated 12.10.2018, in which it has been stated that as per the report submitted by the

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W.P(C)No.19943 of 2018

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Secretary of the 6^th respondent-Chembu Grama Panchayat, it has been stated that notice has been issued to the opposite parties for the eviction from the panchayat land, as per the Panchayath Raj Act and that as per the subsequent decision taken by the Panchayat Committee on 17.11.2017, further action against the alleged encroachment had been kept in abeyance until the Taluk Surveyor demarcates the disputed land etc. Further, it is

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stated therein that the land owner has raised objection against the demarcation of the said land etc., Taluk Surveyor who had reached the site for conducting the survey and measurement, could not conduct the survey and demarcation and hence directions were given to the Tahsildar on 06.01.2018 to take necessary steps for the demarcation of the boundary of the land in dispute, as per the application of the Secretary of the 6^th respondent-Grama Panchayat and the Secretary of the Panchayat has been directed to make arrangements for necessary police protection,

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W.P(C)No.19943 of 2018

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for the smooth conduct of the survey, etc. Paras.10 & 11 of the said statement dated 12.10.2018, filed by the 2^nd respondent, reads as

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follows:

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"10. It is submitted that as per the report submitted by the Secretary, Grama Panchayath says that notice has been issued to the opponent parties for the eviction of the Panchayath land as per Kerala Panchayath Raj Act. The parties send Lawyer Notice to the Secretary. The Secretary reported that as per the decision No.30 of the Panchayath Committee on 17.11.2017 the action against the encroaches were stopped until the Taluk Surveyor demarcate the disputed land.

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11. As the land owners raised objection against demarcation of the said land, the Taluk Surveyor reached at the site could not conduct survey and demarcation. Hence directions are given to the Tahsildar on 06.01.2018 to take necessary steps for demarcation of boundary of the land in dispute, as per the application of the Secretary, Chembu Grama Panchayat and also the Secretary, Grama Panchayat is directed to make arrangements for necessary Police protection for smooth conduction of survey."

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5. On this basis, it is submitted by the

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learned Government Pleader that it make better in the fitness of things that, the survey, measurement and demarcation of the properties in question, as referred to in the abovesaid statement are duly completed by the Tahsildar and the Taluk Surveyor concerned, after prior notice to all the affected parties and then the report of

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W.P(C)No.19943 of 2018

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the Taluk Surveyor on the outcome of the survey, measurement and demarcation of the properties concerned along with the survey sketch to ascertain whether there has been encroachment or not, will be furnished to all the affected parties and thereafter, the adjudication could be rendered on Ext.P-9 petition before the Sub-Divisional Magistrate under Sec.133 Cr.P.C and further that this Court may also direct that reasonable opportunity should also be given not only to the petitioner but also to the affected parties including the panchayath to adduce necessary and

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relevant evidence that may be required for adjudication of the issues to be determined under proceedings under Sec.133 Cr.P.C, etc.

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6. Sri.G.Sreekumar(Chelur), learned counsel

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appearing for respondents 8 & 9 would submit that the pathway terminates near the boundary of the petitioner does not extent upto the kadavu etc., whereas the petitioner asserts that the public pathway is upto the kadavu, which has been

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unlawfully blocked and obstructed by the contesting respondents 8 & 9, etc.

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7. Accordingly, it is ordered that the 3^rd respondent-Tahsildar will ensure that survey, measurement and identification of the boundaries

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of the properties concerned may be got done through the Taluk Surveyor concerned with due prior notices to the petitioner, contesting respondents 8 & 9, 6^th respondent-Grama Panchayath and any other affected parties. The said survey and measurement process will be effected by the Taluk Surveyor concerned on the basis of relevant materials like the title deeds of the parties, the records of the panchayath etc. and may ascertain whether the pathway in question terminates near the boundary of the respondents 8

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& 9 or whether the pathway in question was actually in existence upto the kadavu and if so, whether such pathway has been obstructed by anyone including respondents 8 & 9 or any other persons. The comprehensive report of the Taluk Surveyor on

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the outcome of the said survey and measurement process etc., along with a copy of the survey sketch should be furnished to the petitioner, respondents 8 & 9, 6^th respondent-Grama Panchayath etc. and the original of the report should be

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submitted by the Taluk Surveyor to the 2^nd

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respondent-Sub-Divisional Magistrate, who is to adjudicate on Ext.P-9 petition under Sec.133 Cr.P.C proceedings. Thereafter, the Sub-

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Divisional Magistrate concerned will issue notices

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to the petitioner, respondents 8 & 9, 6^th respondent-Grama Panchayath and any other affected parties and should grant reasonable opportunity to the parties to adduce necessary and relevant evidence and thereafter, the Sub-Divisional Magistrate may determine the factual issue as to whether the path way in question was upto the ‘kadavu’ or had stood terminated near the boundaries of respondents 8 & 9 etc. and such other related issues. Thereafter, orders may be

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passed on Ext.P-9, in accordance with law and

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after granting a reasonable opportunity of being heard to all the affected parties, within 3 months from the date of receipt of a copy of the report of the Taluk Surveyor as aforestated. The survey and measurement process should be completed by the Taluk Surveyor within 6 weeks from the date of production of a certified copy of this judgment. R-3(Tahsildar) and R-5 (Taluk Surveyor) will be at liberty to seek the aid and assistance of police

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authorities, in case they feel that it is requested for completing the survey and measurement process, as directed hereinabove and on such requests, the competent police authorities will act on such request of those officials.

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

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Sd/ALEXANDER THOMAS, JUDGE

vgd/03.11.18

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE COMPLAINT DATED 11.02.2017 EXHIBIT P2 TRUE COPY OF THE LETTER DATED 14.8.2017 ISSUED BY THE RDO, PALA EXHIBIT P3 TRUE COPY OF THE ASSET REGISTER IS KEPT IN THE CHEMBU GRAMA PANCHAYAT EXHIBIT P4 TRUE COPY OF THE RELEVANT PORTION OF THE RESOLUTION DATED 20.9.2017 EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 26.9.2017 ISSUED TO THE ENCROACHERS EXHIBIT P5(A) TRUE COPY OF THE NOTICE DATED 26.09.2017 ISSUED TO THE ENCROACHERS. EXHIBIT P6 TRUE COPY OF THE REPLY DATED 13.12.2017 WITH REGARD TO THE QUESTIONS WERE ASKED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT EXHIBIT P7 TRUE COPY OF THE RESOLUTION DATED 17.11.2017 EXHIBIT P8 TRUE COPY OF THE APPEAL NO. 292/2018 DATED 8.5.2018 PENDING BEFORE THE LSGD TRIBUNAL, THIRUVANANTHAPURAM EXHIBIT P9 TRUE COPY OF THE PETITION FILED UNDER SECTION 133 CR.PC

Sujatha Purushan v. the District Collector

Case brief

What is this about?

What did the court decide?

Sujatha Purushan v. the District Collector

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

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