Disposed

Sasikumar v. the Additional Tahsildar

Kerala HC23 Nov 2018WP(C)/33540/2016

Case brief

AI extract

What is this about?

The court directed the second respondent Panchayat to proceed with eviction of the petitioner for unauthorised occupation only after strictly complying with the mandatory notification procedure under sub-rule (2) of Rule 5.

What did the court decide?

The writ petition is disposed of with a direction to the second respondent to proceed for eviction only after strictly complying with the procedure prescribed under Rule 5(2).

Sasikumar Vs the Additional Tahsildar — Municipal and Town Planning | 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 V.G.ARUN

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FRIDAY ,THE 23RD DAY OF NOVEMBER 2018 / 2ND AGRAHAYANA, 1940

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WP(C).No. 33540 of 2016

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PETITIONER/S:

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SASIKUMAR NALINI BHAVANAM, ADINAD SOUTH, KATTIKADAV P.O., KARUNAGAPPLLY, KOLLAM

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BY ADV. SRI.J.OM PRAKASH

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RESPONDENT/S:

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1 THE ADDITIONAL TAHSILDAR TALUK OFFICE, KARUNAGAPPALLY P.O., KOLLAM

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2 THE KULASEKHARAPURAM GRAM PANCHAYATH ADINAD NORTH P.O., KARUNAGAPPALLY P.O. KOLLAM690 542

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BY ADVS. SRI.P.MOHANDAS (ERNAKULAM) DR.K.P.SATHEESAN (SR.) SRI.K.SUDHINKUMAR SRI.P.MOHANDAS (ERNAKULAM) SRI.S.VIBHEESHANAN

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OTHER PRESENT:

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GP-SRI RENIL ANTO.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 33540 of 2016

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JUDGMENT

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This writ petition was filed aggrieved by the

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issuance of Ext.P3 notice issued by the second respondent Panchayat under Rule 5(1) of the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules, 1996. The reason for issuing Ext.P3 as discernible from the notice is that the petitioner had constructed his compound wall in the property belonging to the Panchayat.

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2. While admitting this writ petition, this

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Court had granted an interim order on 20.10.2016 against dispossession of the petitioner, while at the same time making it clear that the proceedings pursuant to the impugned notice can go on. The petitioner contends that any eviction of an unauthorised occupant can be done only in

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WP(C).No. 33540 of 2016

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accordance with the procedure prescribed under Rule 5(1) of the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules. A reading of Rule 5(1) reveals that under sub-rules (1), the Panchayat has to serve fifteen days'

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notice to the occupant before evicting that person from the land belonging to or vested with the Panchayat. Sub-rule (2) of Rule 5 mandates that the Panchayat shall examine the objection, if any, received, to the notice mentioned under sub-rule (1) and if it appears to the Panchayat that the objection is not satisfactory or the matters stated therein are unsustainable in law, a second notice has to be served to the occupant, requiring him to vacate the unauthorisedly occupied land within one week after receipt of the notice. Under Sub-rule (3) of Rule 5, the

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WP(C).No. 33540 of 2016

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Panchayat is empowered to evict such person with police assistance, only if the unauthorised occupant fails to vacate, in spite of notice under Rule 5(2).

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3. In the light of the explicit procedure prescribed under Rule 5, it is evident that the petitioner can be evicted only after issuance of notice as mandated under sub-rule (2) of Rule 5.

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4. The learned counsel for the second respondent Panchayat submits that he is not aware of as to whether the notice as mandated under Rule 5 (2) had already been issued.

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5. The counsel for the petitioner

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submits on instruction that he has not been

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served with any notice under Rule 5 (2) till date.

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6. In the light of the submissions, the writ petition is disposed of, directing the

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WP(C).No. 33540 of 2016

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second respondent to proceed for eviction of the petitioner, strictly complying with the procedure prescribed under Rule 5(2) of the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules. It is also made clear that if notice under Rule 5(2) has not already been issued, necessarily, the Panchayat shall issue such notice and shall take further proceedings only after complying with the said mandatory requirement.

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With the above direction, this writ petition is disposed of.

Sd/-

V.G.ARUN JUDGE

Scl/23.11

WP(C).No. 33540 of 2016

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 A TRUE COPY OF THE NOTICE OF THE 1ST RESPONDENT DATED 17-10-2014

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EXHIBIT P2 TRUE COPY OF THE REPLY OF THE PETITIONER

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EXHIBIT P3 A TRUE COPY OF THE NOTICE DATED 21-072016

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EXHIBITP4 A TRUE COPY OF THE REPLY OF THE PETITIONER DATED 28-09-2016

Sasikumar v. the Additional Tahsildar

Case brief

What is this about?

What did the court decide?

Sasikumar v. the Additional Tahsildar

Case brief

What is this about?

What did the court decide?

What the court decided

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