Allowed

Subramanian Chankuthodiel v. Moorkanadu Grama Panchayat

Kerala HC13 Sept 2018WP(C)/2460/2018

Case brief

AI extract

What is this about?

The Court directed the Grama Panchayat to implement a Tribunal order removing an encroachment on a natural water stream (thodu). The Court held that while residents may be accommodated alternative paths if possible, the obstruction of natural water flow by converting the bund into a road cannot be supported.

What did the court decide?

Direction to the Panchayat to implement the Tribunal order removing the encroached bund and ensuring natural water flow, while considering alternative pathways for residents.

Subramanian Chankuthodiel Vs Moorkanadu Grama Panchayat — Landlord and Tenant | 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 SMT. JUSTICE P.V.ASHA

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THURSDAY ,THE 13TH DAY OF SEPTEMBER 2018 / 22ND BHADRA, 1940

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WP(C).No. 2460 of 2018

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PETITIONER/S:

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1 SUBRAMANIAN CHANKUTHODIEL

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AGED 72 YEARS, S/O. CHAKKU, CHAKKUTHODIEL HOUSE, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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2 ASHOKAN VELAKKATTIL AGED YEARS, S/O. RAMAN, VELAKKATTIL HOUSE, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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3 KAMALAKSHI VELAKKATTIL

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AGED YEARS, W/O. RAMAN, VELAKKATTIL HOUSE, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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4 BEEVIKUTTY PALLIMALIL

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AGED 55 YEARS, W/O. MOIDEEN, PALLIMALIL HOUSE, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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5 JAYACHANDRAN CHAKKUTHODI

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AGED 49 YEARS, S/O. SUBRAMANIAN, CHAKKUTHODI HOUSE, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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6 MARIYA URINHIYENGAL

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AGED 36 YEARS, W/O. MUHAMMED, URINHIYENGAL HOUSE, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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7 KADEEJA KARADAN

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AGED 56 YEARS, W/O. KOYA, KARADAN HOUSE, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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WP(C).No. 2460 of 2018

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8 DEVAKI KADUKKASSERY AGED 62 YEARS, W/O. KARAPPANKUTTY, KADUKKASSERY HOUSE, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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9 UNNIKRISHNAN PADATHIRI AGED 42 YEARS, S/O. KUNHIKKARI, PADATHIRI HOUSE, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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10 USHA MELEMANAKKATTIL AGED 30 YEARS, W/O. UNNIKRISHNAN, MELEMANAKKATTIL HOUSE, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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11 RADHA PADIVATTAPARAMBIL

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AGED 60 YEARS, S/O. VELAYUDHAN, PADIVATTAPARAMBIL, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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12 ANILKUMAR KALAMTHODI AGED 38 YEARS, S/O. KRISHNAN, KALAMTHODI HOUSE, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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13 GOVINDANKUTTY NALLAT AGED 47 YEARS, S/O. AMMALUAMMA, NALLAT HOUSE, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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14 CHOYI PALERI

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AGED 55 YEARS, S/O. KELU, PALERI HOUSE, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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15 NARAYANI KALAMTHODI

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AGED 68 YEARS, S/O. PARANGODAN, KALAMTHODI HOUSE, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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16 PARUKUTTY PANNEKKATTIL AGED 60 YEARS, S/O. VELU, PANNEKKATTIL HOUSE, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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17 ARAMUGHAN NEDUPARAMBIL

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AGED 52 YEARS, S/O. PARANGODAN, NEDUPARAMBIL HOUSE, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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18 SANTHOSH KALAMTHODI AGED 45 YEARS, S/O. PARANGODAN, KALAMTHODI HOUSE, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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19 PARAMESWARAN PALANCHERI

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AGED 64 YEARS, S/O. RAMAN NAIR, PALANCHERI HOUSE, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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20 ANITHA PALLIYALIL

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AGED 47 YEARS, W/O. PRABHADAS, PALLIYALIL HOUSE, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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21 PRATHAPAN NELLATT AGED 45 YEARS, S/O. KUNHAPPU, NELLATT HOUSE, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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22 SUNITHA PARASSERY AGED 40 YEARS, W/O. GOPI, PARASSERY HOUSE, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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23 GOPALAN KALAMTHODI

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AGED 48 YEARS, S/O. PARANGODAN, KALAMTHODI HOUSE, MOORKANAD GRAMA PANCHAYATH, VENGAD P.O., MALAPPURAM DISTRICT.

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BY ADV. SRI.C.DINESH

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RESPONDENT/S:

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1 MOORKANADU GRAMA PANCHAYAT VENGAD P.O., MALAPPURAM DISTRICT - 679 338, REPRESENTED BY ITS SECRETARY.

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WP(C).No. 2460 of 2018

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2 SECRETARY MOORKANADU GRAMA PANCHAYAT, VENGAD P.O., MALAPPURAM DISTRICT - 679 338.

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3 KARUPPAN FATHERS NAME NOT KNOWN, AGED 56 YEARS, MELEMANAKKAD, KOLATHUR, MALAPPURAM - 679 338.

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4 UNNIKRISHNAN U.P. AGED 58 YEARS, S/O. NARAYANA MENON, UPPILAPATTA PUTHENVEEDU, KOLATHUR P.O., MALAPPURAM - 679 338.

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BY ADVS. SHRI.T.K.AJITH KUMAR SRI.BIJU ABRAHAM SRI.K.NIKHIL NARAYAN SRI.K.T.SIDHIQ SRI.P.VINODKUMAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.09.2018, ALONG WITH WP(C).24279/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 2460 of 2018

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J U D G M E N T

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Both these writ petitions relate to a stream/thodu and its bund in Moorkanadu Grama Panchayat. While the petitioner in W.P.(C) No.24279 of 2017 seeks removal of encroachment to the thodu and bund by the Panchayat in implementation of Ext.P6 order passed by the Tribunal for Local Self Government Institutions (Tribunal), the petitioners in W.P.(C).No.2460 of 2018 who are the additional respondents 4 to 26 object the implementation. Hence both these writ petitions are heard together and are disposed of by this common judgment. Parties and documents referred to in this judgment are as described in W.P.(C).No.24379 of 2017 unless otherwise specified.

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Petitioner is the owner of 62 cents of

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land in Sy.No.78/7 of Moorkkanandu Village. Along

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the western side of his property, there is a thodu for natural flow of water during rainy season. The thodu vests in the Panchayat. Alleging that the 3^rd respondent along with his men started levelling the thodu for construction of road to his property, petitioner had preferred a complaint before the Panchayat as well as the Sub Inspector of Police on 20.02.2012, requesting for intervention. He submitted another complaint before the RDO on 20.02.2012. Petitioner submits that the RDO, thereupon called for a report from the Village Officer, Moorkkanandu and the Village Officer after conducting enquiry submitted a report stating that the thodu with a width of 12 to 13 feet was encroached and converted as Road. As no action was taken even after the report, petitioner approached this Court filing W.P.(C).No.10411 of 2012 and as per judgment dated 27.04.2012, disposed of the writ

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petition directing the Panchayat to pass orders on the complaint of the petitioner. Thereafter the Panchayat after hearing the petitioner and the 3^rd respondent and others issued Ext.P1 notice on 07.06.2012 directing the 3^rd respondent to restore the thodu within 7 days, failing which it was informed that action would be initiated under the Kerala Panchayat Raj (Removal of Encroachment

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and Imposition and Recovery of Penalty for Unauthorised Occupation)Rules, 1996

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('Encroachment Rules' for short). Thereupon the 3^rd respondent challenged Ext.P1 notice filing Appeal No. 456 of 2012 before the Tribunal for Local Self Government Institutions (for short 'Tribunal'). Seeing that there were certain procedural infirmities in the proceedings under Rule 5 of the Encroachment Rules. As per Ext.P2 order dated 22.01.2013, the Tribunal set aside Ext.P1 notice directing that Panchayat has to

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issue notice in accordance with Rule 5 of the Encroachment Rules. Thereafter the Panchayat in its meeting held on 26.02.2013, resolved as per Ext.P3, that there is no clarity with respect to the width of the thodu and therefore further action need be taken after survey and measurement of thodu is conducted. It was stated that if the encroachment is removed and the Panachayat Puramboke is directed to be restored to its previous position, it will affect the families using the road and there would be serious problems. As the Panchayat did not take any steps to get the thodu measured as decided in Ext.P3 resolution, petitioner approached this Court again in W.P.(C).No.16681 of 2013 and this Court had as per judgment dated 12.11.2013 (Ext.P3 in W.P.(C) No.2460 of 2013) directed the Panchayat to take immediate action to implement the decision in Ext.P3 resolution and to comply with

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WP(C).No. 2460 of 2018 9

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the direction of the Tribunal in Ext.P2 order. A survey was conducted thereafter by the Taluk Surveyor and the additional Tahsildar, Perinthalmanna had submitted Ext.P4 report on 23.01.2014 in which the encroachment of the thodu was demarcated. Thereafter the Panchayat issued Ext.P5 order on 27.05.2014, under Section 235 W

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of the Kerala Panchayat Raj Act directing the 3^rd respondent to remove the encroachment within 15 days and intimating the consequences in the event of failure to remove.

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The 3^rd respondent thereupon challenged Ext.P5 order in appeal No.682/2014 before the Tribunal. As per Ext.P6 order, the Tribunal disposed of the appeal pointing out that the order issued under Section 235 W was unsustainable and disposed of the appeal with directions to the Secretary of the Panchayath to issue a fresh notice to the 3^rd respondent under

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Section 279 A(3) to vacate him from the encroached portion of the canal, within a period of 15 days and in the event of failure to do so Secretary shall remove the encroachment by deputing appropriate persons who can restore it to the original position of the canal by removing the obstructions and shall recover the expenses incurred from the 3^rd respondent. It was also directed that in the event of any difficulty in identification of the boundaries the respondent Panchayat can seek the assistance of revenue officials who are bound to extend all necessary co-operation, in view of the judgment of this court.

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When the Panchayat initiated action on 04.07.2017 in terms of the order of the Tribunal passed on 08.02.2017, the 3^rd respondent and others obstructed and some of them even assaulted the petitioner. Petitioner submits that despite

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submission of complaint on 19.07.2017, the second respondent did not provide any protection to carry out the work. This writ petition was filed at that stage, pointing out that the refusal to remove the encroachment has resulted in serious damage to the property of the petitioner because in the rainy season, the entire water has flown to his property, while seeking implementation of Ext.P6 order of the Tribunal.

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I.A.No.14833 of 2017 was filed by the 23 persons seeking impleadment in the writ petition stating that the implementation of Ext.P6 order would adversely affect them as the only means for ingress and egress to thirty families will be lost and their freedom of movement will be deprived of; they were not made parties to any of the proceedings; the extent of thodu is far lesser in front of the petitioner's property, whereas the entire thodu is having a large extent

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and therefore the entire road need not be demolished; they were not made parties to the writ petition, etc.

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Petitioner points out that additional respondents who got impleaded, had filed a Writ Appeal challenging the judgment in W.P. (C).No.16681 of 2013, stating that the implementation of the decision of the Panchayat would adversely affect them. But the application for leave to appeal was dismissed as per order dated 07.11.2017 (produced as Ext.P7 in W.P. (C).No.2460 of 2018), observing that the judgment in the Writ Petition could not have caused any prejudice to them and if at all any further action results in prejudice it would be open for them to approach the appropriate forum. Petitioner points out that they had filed the writ appeal, when notice was issued to the 3^rd respondent, alleging that the only passage for

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their houses would be blocked. According to the additional respondents, the thodu can be maintained by the Panchayat without disturbing their pathway.

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The Panchayat has filed a counter

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affidavit in which it is stated that they could not implement the order passed by the Tribunal because of the resistance by the residents on the

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either side of the thodu. According to them, there was a bund for the thodu from time immemorial which was being used by the residents of that area as passage to their houses. It is stated that due to miserable condition of the passage over the bund, the residents of that area levelled the top of the bund of the thodu and began to take vehicles through that, because they had no other road access to their houses. It is

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further stated that Panchayat decided to vacate the thodu along with the leveled bund which was

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used by the local inhabitants of that area for transportation and petitioner is the only person who has complaint to evacuate the thodu. In para

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5 it is stated:

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“But only a part of land which is included in the survey number of the thodu, that is the bund of the thodu converted to road by the residents of that area. The third respondent being one among the 27 families was also there along with the residents of the area for converting the bund to a transportable way. ”

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8. It is further stated that subsequent to

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the order of the Tribunal and the thodu was got measured based on the resolution of the Panchayat and as per the report of Additional Tahsildar, there is bund on both sides of the thodu. According to them, report of the surveyor does

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not mention the measurements of the bund. A temporary order was passed under threat of contempt proceedings; it is stated that even though the Panchayat has taken steps for implementation of the order, the residents of the

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locality objected the same and they submitted Ext.R1(a) representation dated 24.07.2017 before

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the Panchayat requesting not to remove the passage to their houses.; thereupon the Panchayat had formed a committee to discuss the matter. It is further stated the petitioner has converted paddy land for rubber cultivation and a reason for flow of water into his property is because there is no drainage or passage to his property for free flow of water to the thodu. It is stated that petitioner's property is lying at a height of 1 meter from the thodu and therefore his property which is a converted paddy land would not get water loogged because of the overflow from thodu. However in para 14 it is stated as follows:

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“ In fact the thodu, and the remaining stream and the road are public properties vested with the Panchayat. Panchayat is ready to take up the responsibility of maintenance of both. But the actual prior position of the 'thodu' is not known. The bund of the thodu was used by

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the residents of the area as passage for long before the widening of the bund as a road. It is quite difficult to demolish the bund and widen the stream. The free flow of water is no way affected due to the widening of the bund. There is sufficent width even now for the free flow of water. Ext.R1(B) was taken on a heavy rain day. Even on that day it is found that the water is flowing freely through the thodu without any hindrance. So it is practical to retain the thodu and the passage without affecting any one and the Panchayath is ready to maintain the said thodu and passage for the better interest of the larger community. The petitioner actually does not have any grievance and he is taking vengeance against the local people due to political animosity.”

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23 of the residents of the locality who

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got impleaded as additional respondents 4 to 26 in W.P.(C).No.24279 of 2017, have also filed a counter affidavit. It is stated that they submitted Ext.R4(a) representation dated 24.07.2017, signed by more than 90 persons against the implementation of the Tribunal's order. According to them, they were not parties to any of the proceedings. The complaint of the petitioner was only against the 3^rd respondent. The implementation of the order of the Tribunal

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will result in deprivation of their freedom of movement as the only pathway they are using would be lost. Hence thirty families would be deprived of ingress and egress to their property. Therefore they had filed Writ Appeal against the judgemnt in W.P.(C).No.16681 of 2013 along with petition for leave to appeal. After that petition was rejected, they submitted representation dated 14.12.2017 requesting the Panchayat not to block the only passage to their properties. They have also filed W.P.(C).No.2460 of 2018 seeking a direction to the respondents to consider the mass petition dated 14.12.2017 produced as Ext.P8 in their writ petition and to retain the road.

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The petitioner had filed a counter affidavit in the impleading petition I.A.No.14833 of 2017 filed by the additional respondents, producing the copy of the writ appeal filed

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against the judgment in W.P.(C) No. 16681 of 2013 pointing out that the additional respondents were very well aware of the proceedings which were pending before this court as well as the Tribunal. It is stated that one Sri. Unnikrishnan Melemanakatil -the 8^th appeallant in the Writ Appeal filed against the judgment in W.P. (C).No.16681 of 2013, had filed W.P.(C).No. 18640 of 2012 challenging Ext P1 notice of the Panchayat, projecting the grievance of the residents of the locality and this court in Ext.P12 judgment, did not interfere, observing that the matter was pending consideration of the Tribunal in Appeal 456 of 2012 and that it was

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upto the petitioner therein to approach the Tribunal. But he or any of the residents whose grievance was projected did not choose to get impleaded in those proceedings. Petitioner pointed out that the petitioner therein had

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produced Ext.P13 complaint dated 16.06.2012 signed by 38 persons, submitted before the Panchayat, in which they had admitted that they had converted the thodu, which is a natural stream into a road. He did not take any steps to get impleaded in the appeal, or in any subsequent proceedings. Thereafter he along with 23 others filed Writ Appeal, which this court did not entertain. He also pointed out that the said Unnikrishnan has not therefore joined along with the additional respondents.

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Heard the learned Counsel appearing for

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the petitioners in both the Writ Petition and the learned Counsel for the Panchayat and the learned

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Government Pleader. The existence of thodu and bund on the one side of the property of petitioner is admitted by both sides. From the pleadings it is clear that the bund on the side of the thodu is converted as road. It is also

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admitted by the Panchayat that the thodu and bund

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are vested in it and that there has been encroachment. While admitting that the puramboke property of the Panchayat is encroached, the Panchayat expresses its inability to protect its property and encourages the encroachment or supports the encroachers saying that the inhabitants/several families do not have any road access. However it cannot be disputed that the bund has been converted and widened as road by the additional respondents 4 to 26 for vehicular traffic to their properties. 12. From the Ext.P4 as well as Ext.P14 in WP(C) No.24279/2017the sketch prepared by Taluk Surveyor and the report of the Additional Tahsildar show the nature and lie of the 'thodu' as well as the 'bund'. However, the secretary of the panchayat says that the measurements of the bund are not stated or shown in the sketch by the Taluk

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Surveyor. The Taluk Surveyor has demarcated the

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area from which encroachment has to be removed. None of the party respondents has stated that they have preferred any objection against the sketch prepared by the Taluk Surveyor pursuant to the judgment of this Court. Even after the sketch was produced before this Court, the respondents did not appear to have submitted any objection. This would indicate that the inaction of the Panchayat to protect its property has resulted in extensive encroachment of the 'thodu' resulting in obstruction of natural flow of water.

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The Panchayat cannot shut its eyes to the realities that such encroachments and obstructions have contributed much to the recent natural disasters in the State. Therefore it is for the Panchayat to see that there is no obstruction to free flow of water in the canal or in any other natural water sources vested in it,

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rather than permitting and promoting such encroachments.

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The order of the Tribunal which is in

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tune with the direction of this court in the judgment of this court in W.P.(C).No.16681 of 2013 is not challenged by any of the respondents.

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Therefore there shall be a direction to the Panchayat to see that Ext.P6 order passed by the Tribunal for Local Self Government Institutions is implemented, with reference to the sketch furnished by the Taluk Surveyor and to see that the natural flow of water in the thodu is not obstructed in any manner.

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It would also be open to the Panchayat to consider the representation Ext.P8 and to arrange pathway for the bonafide inhabitants of the locality in case it is possible without causing any obstruction to the natural flow of water in

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the thodu, without reducing its lateral support

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or the bund, while implementing Ext.P6 order or to provide them any alternate pathway, in accordance with law, without supporting or promoting those who violate the rules.

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These writ petitions are disposed of

accordingly.

Sd/-

P.V.ASHA, JUDGE.

AS /rp

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE ORDER ISSUED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT IN APPEAL 456 OF 2012 DATED 22.01.2013.
EXHIBIT P2	TRUE COPY OF THE DECISION TAKEN BY THE 1ST AND 2ND RESPONDENTS.
EXHIBIT P3	COPY OF THE JUDGMENT IN W.P.(C) 16681 OF 2013 DATED 12.11.2013.
EXHIBIT P4	TRUE COPY OF THE ORDER OF THE TRIBUNAL DATED 08.02.2017.
EXHIBIT P5	TRUE COPY OF THE NOTICE DATED 04.03.2017 OBTAINED BY THE 1ST RESPONDENT UNDER RIGHT TO INFORMATION ACT.
EXHIBIT P6	TRUE COPY OF THE MASS PETITION DATED 24.07.2017.
EXHIBIT P7	TRUE COPY OF THE ORDER IN I.A.NO.1007 OF 2017 IN UNNUMBERED WRIT APPEAL.
EXHIBIT P8	TRUE COPY OF THE MASS PETITION DATED 14.12.2017.

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RESPONDENT'S EXHIBITS : NIL

Subramanian Chankuthodiel v. Moorkanadu Grama Panchayat

Case brief

What is this about?

What did the court decide?

Subramanian Chankuthodiel v. Moorkanadu Grama Panchayat

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

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