Writ petition challenging road construction on petitioner's property was close because underlying civil declaratory judgment is stayed and rights remain unconfirmed by superior courts.
Petition closed; liberty to petitioner to approach court again after conclusion of civil proceedings with appropriate prayers.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 24TH DAY OF JANUARY 2018 / 4TH MAGHA, 1939
WP(C).No. 2517 of 2015
PETITIONER:
BIJOMON THOMAS, AGED 34 YEARS, S/O THOMAS, PAINEL HOUSE, PADINJATTUBAGAM KARA, ATHIRAMPUZHA VILLAGE, ATHIRAMPUZHA P.O, KANNUR - 686 562.
BY ADVS.SRI.ABRAHAM P.GEORGE SMT.M.SANTHY
RESPONDENTS:
1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL ADMINISTRATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2. THE DISTRICT COLLECTOR, KOTTAYAM DISTRICT, CIVIL STATION,KOTTAYAM- 686 001.
3. THE BLOCK DEVELOPMENT OFFICER, ETTUMANNUR BLOCK, OFFICE AT ETTUMANNUR - 686 631.
4. ATHIRAMPUZHA GRAMA PANCHAYATH, REPRESENTED BY THE SECRETARY, ATHIRAMPUZHA P.O., KOTTAYAM- 685 562.
5. BABU GEORGE,PUTHUSSERY HOUSE, PADINJATTUBAGAM KARA, ATHIRAMPUZHA VILLAGE, ATHIRAMPUZHA P.O., KOTTAYAM - 686 562.
6. BENNY GEORGE, THARAPPEL HOUSE, PADINJATTUBAGOM KARA, ATHIRAMPUZHA VILLAGE, ATHIRAMPUZHA P.O., KOTTAYAM- 686 562.
R1-R3 BY SRI. K.A. JALEEL, ADDL. ADVOCATE GENERAL R4 BY ADV. SRI.RAJESH THOMAS,SC R5 & R6 BY ADVS. SRI.P.SREEKUMAR
SRI.S.PRASANTH SRI.T.S.SARATH SMT.P.M.MAZNA MANSOOR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
EL
WP(C).No. 2517 of 2015 (L)
APPENDIX
PETITIONER(S)' EXHIBITS
| EXHIBIT-P1- | TRUE PHOTO COPY OF THE SETTLEMENT DEED NO.2052/2010 DATED 18/06/2010 OF SRO, ETTUMANOOR. |
|---|---|
| EXHIBIT-P2- | TRUE PHOTO COPY OF THE PROPERTY TAX PAID RECEIPT NO. 3175346 DATED 11/04/2014 PERTAINING TO THE PROPERTY OBTAINED BY THE PETITIONER AS PER EXHIBIT-P1 DEED |
| EXHIBIT-P3- | TRUE PHOTO COPY OF THE SURRENDER KYCHIT ALLEGED TO BE EXECUTED BY THE FATHER OF THE PETITIONER. |
| EXHIBIT-P4- | TRUE PHOTO COPY OF THE REPLY DATED 16/05/2014 ISSUED BY THE SECRETARY, ATHIRAMPUZHA GRAMA PANCHAYATH |
| EXHIBIT-P5- | TRUE PHOTO COPY OF THE JUDGMENT DATED 06/08/2007 IN W.P(C).7386/2006 OF THE HON'BLE HIGH COURT OF KERALA |
| EXHIBIT-P6- | TRUE PHOTO COPY OF THE PLAINT IN O.S.138/2014 OF MUNSIFF COURT, ETTUMANOOR. |
| EXHIBIT-P7- | TRUE PHOTO COPY OF THE COMPLAINT NO.1262/2014 IN THE FILE OF THE HONOURABLE LOKAYUKTA. |
| EXHIBIT-P8- | TRUE PHOTO COPY OF THE NEWS ITEM PUBLISHED IN MALAYALA MANORAMA DATED 11/10/2014. |
| EXHIBIT-P9- | TRUE PHOTO COPY OF THE QUESTIONARE SUBMITTED BY THE PETITIONER AND THE REPLY ISSUED BY THE 3RD RESPONDENT BDO DATED 01/01/2015 |
| EXHIBIT-P10- | TRUE PHOTO COPY OF THE ORDER NO.D4/3296/2014 (20) DATED 27/12/2014 PASSED BY THE IST RESPONDENT DISTRICT COLLECTOR. |
| EXHIBIT-P11- | TRUE PHOTO COPY OF THE PHOTOGRAPHS SHOWING THE COMMENCEMENT OF WORK |
| EXHIBIT-P12- | THE TRUE PHOTO COPY OF THE ORDER DATED 23.3.2012 REJECT THE APPLICATION PASSED BY THE HON'BLE SUB COURT, KOTTAYAM |
| EXHIBIT-P12- | TRUE PHOTO COPY OF THE COMMON JUDGMENT PASSED BY THE HON'BLE MUNSIFF'S COURT, ETTUMANOOR IN O.S. NO.212/2014 AND O.S. NO.138/2014 |
| RESPONDENT(S)' | EXHIBITS |
EXHIBIT R3(A) TRUE COPY OF THE ASSET REGISTER
WP(C).No. 2517 of 2015 (L)
| EXHIBIT R3(B) | TRUE COPY OF THE RESOLUTION NO.7 DATED 21.8.2014 TAKEN BY THE GRAMA PANCHAYAT COMMITTEE |
|---|---|
| EXHIBIT R3(C) | A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 45 LOCAL RESIDENTS OF THE THARAPPEL-PAINEL AREA TO THIS RESPONDENT |
| EXHIBIT R6(A) | A TRUE COPY OF THE CANCELLATION DEED NO.3406/2010 |
| EXHIBIT R6(B) | THE PETITIONER'S MOTHER HAS SWORN AN AFFIDAVIT DETAILING THE ORDEALS FACED BY HER AT THE HANDS OF THE PETITIONER |
| EXHIBIT R6(C) | A PHOTOGRAPH SHOWING THE PORTION OF THE ROAD PASSING ALONG WITH WESTERN BOUNDARY OF THE PROPERTY CLAIMED TO BE OWNED BY THE PETITIONER |
| EXHIBIT R6(D) | A TRUE COPY OF THE RELEVANT PORTION OF THE ASSET REGISTER OF ATHIRUMBUZHA PANCHAYAT |
| EXHIBIT R6(E) | A TRUE COPY OF THE REPORT DATED 3.12.2017 SUBMITTED BY THE BLOCK DEVELOPMENT OFFICER, ETTUMANOOR |
| EXHIBIT R6(F) | A TRUE COPY OF THE ORDER DATED 23.11.2013 ISSUED BY THE 4TH RESPONDENT |
| TRUE COPY | |
| EL | P.S. TO JUDGE |
DEVAN RAMACHANDRAN, J.
W.P.(C)No.2517 of 2015
Dated this the 24th day of January, 2018
JUDGMENT
The petitioner claims to be the owner in possession of 17.60 Ares of land in Sy.No.755/18 (Re.Sy.No.446/13) of the Athirampuzha Village, Kottayam Taluk. He has filed this writ petition seeking a direction to respondents 2 to 4, namely the District Collector and the Block Development Officer respectively, not to proceed with the construction of a road through his property.
W.P.(C)No.2517/2015
2
under the strength of Ext.P10 order, exclusively belongs to him. He thus asserts before this Court that directions be issued to the respondent in the manner prayed for by him.
counsel for the petitioner, Sri.P.Sreekumar, the learned counsel appearing for respondents 5 and 6, the learned counsel appearing for the Panchayat and the learned Government Pleader appearing for respondents 1, 2 and 3.
W.P.(C)No.2517/2015
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notwithstanding this, directions should be issued to the respondents to cause an investigation as to how the road was constructed in violation of law and by misusing the official positions of the competent Authorities. According to him, the road was completed pending this writ petition and in gross violation of all applicable Statutes and Rules. He says that Ext.P12 judgment was delivered by the Munsiff’s Court, Ettumanoor after the road was constructed and that he is entitled to apply for restitution of his property in terms of law.
counsel on either side as above. As matters now stand, it is inevitable that there is a declaration that the property belongs to the petitioner but that the said Ext.P12 judgment has been stayed by the competent Appellate Court. It is also conceded
by the counsel on both sides that the road has been constructed and the only question, therefore, which now remains is as to whether this has been constructed in terms of law or in violation of the petitioner’s rights. These are matters which obviously can be considered only after the civil proceedings conclude and after the rights of the petitioner,
W.P.(C)No.2517/2015
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over the property in question, is confirmed one way or the other by the competent Civil Courts. Until such time, it goes without saying the petitioner can only claim that he is the owner of the land but all such assertions including the declaration in Ext.P12 judgment will have to be confirmed by orders and judgments of the superior courts.
Sd/-
DEVAN RAMACHANDRAN, JUDGE
skj
2 issues framed by the court
Whether the writ petition can be disposed of given that the declaratory judgment in civil proceedings is stayed by the appellate court.
Whether the petitioner can be granted relief to restrain road construction while civil rights are sub judice.
Bijomon Thomas
State of Kerala
The District Collector, Kottayam
The Block Development Officer, Ettumannur
Athirampuzha Grama Panchayath
Babu George
Devan Ramachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
