The Panchayat sought to undo encroachment-removal directions after leasing the disputed land to the Church occupying it. The court dismissed the appeal, holding that the lease circumvented existing judicial directions and that the requested relief would conflict with the earlier Division Bench judgment.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 20TH DAY OF NOVEMBER 2019 / 29TH KARTHIKA, 1941
WA.No.954 OF 2019
AGAINST THE JUDGMENT DATED 17.07.2018 IN WP(C) NO.18966/2018(U) OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENT NO.6:
ELANKUNNAPUZHA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, MALIPPURAM P.O., ERNAKULAM, PIN-682 511.
BY ADVS. SRI.GEORGE POONTHOTTAM (SENIOR)
SRI.P.M.BENZIR
RESPONDENTS/WRIT PETITIONER & RESPONDENTS 1 TO 5, 7 & 8:
S/O. SEKHARAN, RESIDING AT THUNDIYIL HOUSE, PUTHUVYPPU P.O., ERNAKULAM, PIN-682 508.
FORT KOCHI, ERNAKULAM, PIN-682 002.
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8 THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM, PIN-695 001.
R1 BY ADV. SRI.J.JAYAKUMAR R7 BY ADV. SHRI JAWAHAR JOSE
OTHER PRESENT:
SR.GP. SRI.ARAVIND KUMAR BABU FOR R2 TO R6
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Dated this the 20th day of November, 2019
S.Manikumar, CJ
Challenge in this writ appeal is to the judgment passed in W.P.(C) No.18966 of 2018 dated 17.07.2018, by which writ court ordered thus:-
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Tahsildar, R-4 Taluk Surveyor and R-5 Village Officer fully co-operate with R-6 Panchayat in regard to the abovesaid matters. The entire exercise in this regard should be duly completed by the 6th respondent within a period of four months from the date of production of a certified copy of this judgment. Further it is also ordered in the interest of justice that the Secretary of the 6th respondent Grama Panchayat should file a report immediately before the 1st respondent District Collector as to the various steps the Panchayat has taken after the issuance of the orders as per Ext.P-5 dated 28.11.2011, Ext.P-6 order dated 22.4.2016 and Ext.P7 order dated 16.2.2017 and as to the further steps he has taken after the issuance of Ext.P-9 letter dated 9.1.2017 issued by the Collector and should explain the circumstances under which Exts.P-5 to P-7 orders have not been complied with by the Panchayat till date. After going through the said version, if the 1st respondent District Collector is convinced that there was negligence and laches on the part of the officials of the Secretary and other officials of the 6th respondent Grama Panchayat, then the District Collector may consider whether recommendation should be made to the Director of Panchayats or the competent disciplinary authority of the Secretary of the 6th respondent Grama Panchayat as to whether disciplinary action is to be taken in the matter. The Secretary of the 6th respondent Grama Panchayat should also state the details of the names and the details of the various officials, who have held the post of Secretary of the 6th respondent Panchayat from the time of issuance of Ext.P-5 order dated 28.12.2011 upto date and whether those officials are still continuing in service or whether they have already retired from service. If any of those officials are continuing in service, their present whereabouts should also be intimated by
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the 6th respondent in his report that is to be furnished to the 1st respondent District Collector. After taking into account all relevant aspects of the matter, the 1st respondent District Collector may take a considered decision whether he should recommend to the competent disciplinary authority for initiating for any disciplinary action against such erring officials. Further it is also directed that the 1st respondent District Collector will monitor the further aspects regarding the compliance of the directions issued herein above and if he finds that there is any inaction on the part of the Secretary of the 6th respondent Grama Panchayat or any other officials concerned, then he may file a report before this Court through the learned Government Pleader bringing to the attention of this Court about such aspects.”
1st respondent herein has approached the Ombudsman for Local Self Government, Thiruvananthapuram, respondent No.8, with an allegation that St.Sebastian's Church, represented by its Vicar, Puthuvypu P.O., Ernakulam, respondent No.7, has encroached upon the Panchayat property. The petition was disposed of by the learned Ombudsman by an order dated 20.08.2011 directing the Secretary of Elankunnapuzha Grama Panchayat, the appellant herein, to measure the land and finalise the proceedings within a specified time frame.
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W.A.NO.954 OF 2019 7
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is vested in Elankunnapuzha Grama Panchayat and is required for the expansion of road, dismissed the writ appeal. As regards the application for assignment of land filed by St.Sebastian's Church, the Hon'ble Division Bench granted liberty to the Church to pursue the application to the extent it pertains to property other than 03.08 Ares covered under the court proceedings. The Hon'ble Division Bench made it clear that the Church shall not be allowed to pursue their claim with regard to the property, which is the subject matter of the abovesaid proceedings. The Hon'ble Division Bench has further directed that the Church should surrender the property along with the improvements thereon, in terms of order dated 22.12.2018, passed by the Secretary, Elankunnapuzha Grama Panchayat, appellant herein, within a period of two weeks from the date of passing of the judgment in W.P.(C) No.1657/2019 dated 6.2.2019.
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liberty to the Church to approach the Panchayat authorities with suitable request for granting reasonable time to demolish the standing structures on the encroached land. The Hon'ble Division Bench has further observed that if any such request is made, the Panchayat authorities may consider the same, as per law. Thus, W.A. No.267 of 2019 is disposed of on 6.2.2019.
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appurtenant land, there is a chapel and a portion of the parish hall in the encroached area. The appellant approached the District Collector, Ernakulam, as well as the Circle Inspector, Njarackal, to render necessary assistance to tackle the law and order situation that may arise on demolishing the chapel. However, there was no response from them. On 12.03.2019 at 11 am, the Panchayat Secretary went to the site with men and equipment and made an attempt to remove the structures. However, on account of the protest made by a large number of devotees gathered there, he could not proceed to pull down the structures. Thereafter, the Panchayat Committee in its meeting held on 13.03.2019 considered the request made by the 7th respondent Church, in the light of the directions issued by the Hon'ble Division Bench of this Hon'be Court in W.A.No.267 of 2019.
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of Property) Rules, 2005. As directed by this Court, the encroached area was surrendered to the Panchayat by the 7th respondent Church. However, the chapel and the portion of parish hall in the encroached area has now been leased out to the 7th respondent Church by the Panchayat Committee. In view of the subsequent developments, impugned judgment of the learned Single Judge to the extent it directs the appellant to take action under the provisions of Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules, 1996, for eviction of unauthorised occupation is no longer sustainable. The Panchayat Secretary is facing contempt proceedings before the learned Single Judge in Contempt Case (Civil) No.76 of 2019 for the alleged non-compliance of impugned judgment.
“Pursuant to the directions issued by this Hon'ble Court, the 7th respondent Church has surrendered the entire encroached land to the appellant Panchayat. The request made by the Church not to demolish the chapel and portion of the parish hall situated in the encroached land till the widening of road and the assurance made by the Church to surrender the building unconditionally at the time of widening the road was
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considered by the Committee of the appellant Panchayat in the light of the directions issued by the Honble Division Bench of this Court in W.A.No.267 of 2019. As per the assessment register maintained with the appellant Panchayat, the width of the road is only 3 meters. As there is no encroachment to the road having width of 3 metres and as there is no proposal for increasing the width of the road at present, the Panchayat Committee decided not to demolish the chapel for the time being and permit the 7th respondent Church to occupy the premises on lease for a period of one year, by invoking Rule 9 (3) of the Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules, 2005. Such a decision was taken by the Committee of the appellant Panchayat after considering the entire aspects of the issue and the decision taken by the Committee of the Appellant Panchayat is in exercise of the statutory power vested in it. The policy decision taken by the Panchayat in its wisdom based on sound reasons is valid and is in accordance with law. The decision taken by the appellant Panchayat has not so far been challenged before any court of law. In view of the decision taken by the Panchayat Committee permitting the 7th respondent Church to occupy the premises on lease, the impugned judgment of the learned single Judge to the extent which directs the appellant to take action under the provisions of Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules, 1996, for eviction of unauthorised occupation is no longer sustainable.”
appellant, made submissions on the above ground and sought for reversal
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of the judgment of writ court in W.P.(C) No.18966 of 2018 dated 17.07.2018 contending that Panchayat Committed in its meeting held on 13.03.2019, considered the request of the 7th respondent, deliberated on the issue and found that there is no encroachment to the road having a width of 3 metres, there was no proposal for increasing the width of the road and accordingly, the Panchayat Committee, as per the decision No.2(1) taken in the meeting held on 10.03.2019 decided to permit the 7th respondent Church to occupy the premises, wherein chapel and a portion of the parish hall are situated adjacent to the road, by way of lease for a period of one year, by invoking Rule 9(3) of the Kerala Panchayat Raj (Acquisiton and Disposal of Property) Rules, 2005. In view of the subsequent development, namely leasing out of the encroached area to the 7th respondent Church by the Panchayat Committee, directions issued in the judgment in W.P.(C) No.18966 of 2018 dated 17.7.2018 be set aside.
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encroached by St.Sebastian's Church, respondent No.7, stating that it is a puramboke land. Observing that St.Sebastian's Church was not a party, Ombudsman for Local Self Government Institutions, Thiruvananthapuram, by its order in O.P. No.1633 of 2009 dated 28.12.2011 directed the Panchayat Secretary to measure and demarcate boundary of the property belonging to the Government with the assistance of a Taluk Surveyor and Village Officer, by notice to both parties. Ombudsman for Local Self Government Institutions, Thiruvananthapuram has further directed the Tahsildar, Kochi to render all necessary assistance to the Taluk Surveyor and Village Officer for measurement and demarcation of the boundary. Learned Ombudsman has also directed the Secretary, Elankunnapuzha Grama Panchayat, appellant herein, to give notice to St.Sebastian's Church, the petitioner therein, before taking measurement of the property and directed that the said exercise to be done within a period of two months from the date of order made in O.P. No.1633 of 2009.
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directing the Secretary of the appellant Panchayat to initiate steps to measure the properties in dispute by the Taluk Surveyor within a period of six months from the date of receipt of that order. Order dated 22.04.2016
in C.M.P. No.29/2015 in Complaint No.1633/2009 is extracted hereunder:
“BEFORE THE HON'BLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM
PRESENT
Hon'ble Sri. Justice M. L. Joseph Francis, Ombudsman Dated 22-04-2016 C.M.P. No.29/2015 in Complaint No.1633/2009
Petitioner : T. S. Shineson Thundiyil House, House No.5 Puthuvyppu P.O., Kochi Ernakulam Respondent : Secretary Elankunnapuzha Grama Panchayat Elankunnapuzha, Ernakulam
ORDER
The complaint of the Petitioner in the above C.M.P. is that the Order issued in the above Complaint has not been implemented. The Petitioner is present when the C.M.P. came up for consideration today. The Secretary of the Grama Panchayat submitted written statement as stated hereunder.
"Pursuant to the complaint submitted by Sri.T.N.Shineson Thudiyuil, stating that the St. Sebastian Church authorities have encroached the public road while constructing the chapel and compound wall, enquiry has been conducted and notice has been issued to stop the construction. However, by that time the construction was almost complete. It is found that the Chapel is constructed about 30.centimeters away from the drainage beside the road. As directed by the
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Hon'ble Ombudsman in the earlier order request has been made before the Surveyor, Kochi, to measure the property in order to ascertain the encroachment. However, no action was taken in the matter. It was also reported before the Ombudsman that on measuring the property by the Taluk Surveyor if it is found that there is encroachment further steps shall be taken to remove the encroach ments. However, as the model code of conduct was in force in connection with the Panchayat elections, it was not possible to take steps to measure theproperty. It is submitted that now a request has been made to the Taluk Surveyor as per letterdated 15.01.2016 to ascertain whether there is encroachment.”
Considering the above stated facts the following directions are issued. The Panchayat Secretary shall initiate steps to measure the properties in dispute by the Taluk Surveyor with six months from the date of receipt of this order. On measuring the property, if it is found that there is encroachment over puramboke, it is directed that the encroachment shall be removed in accordance with law. Accordingly, further proceedings in the above the C.M.P. is closed.
Justice M. L. Joseph Francis Ombudsman
//True Copy//
Sd/-
Secretary”
No.1633 of 2009 dated 16.02.2017, is extracted hereunder:
“BEFORE THE HON'BLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM PRESENT
Hon'ble Sri. Justice M. L. Joseph Francis, Ombudsman Dated 16-02-2017
C.M.P. No.230/2016 in Complaint No.1633/2009
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Petitioner : T. S. Shineson Thundiyil House, House No.5 Puthuvyppu P.O., Kochi Ernakulam Respondent : Secretary Elankunnapuzha Grama Panchayat Elankunnapuzha, Ernakulam
ORDER
The complaint of the Petitioner in the above C.M.P. is that the order issued in the above Complaint has not been implemented.
The Petitioner is present when the C.M.P. came up for consideration today. The Secretary of the Grama Panchayat submitted written statement as stated hereunder.
“In implementation of the directions issued by the Hon'ble Ombudsman for Local Self Government Institutions in the Order dated 22.04.2016 regarding the encroachment over the Government puramboke road having width of 5.4 mts. comprised in Re-Survey No.500/2010 of Puthuvyppu Village and passing through the eastern boundary of St. Sebastian's Roman Catholic Church, Puthuvyppu, and ending at Central Beach road in ward No.20 of Elankunnapuzha Grama Panchayat, request has been made before the Taluk Surveyor as per letter dated 14.01.2016 for measuring the properties in question. Since measurements were not taken as requested another letter No.A2/498/2016 dated 27.07.2018 was also given. However, the measurement of the properties has not so far been conducted. It is submitted that the further action in the matter will be taken once the measurement of the property is completed."
Considering the above stated facts, the following order is issued. The Panchayat Secretary shall initiate steps to measure the properties stated in the complaint by the Taluk Surveyor with six months from the date of receipt of this order. If it is
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found that there is encroachment, the Grama Panchayat is directed to take action to remove the encroachment. Accordingly, further proceedings in the above the C.M.P. is closed. The copy of this order shall be forwarded to the Tahsildar, Taluk Office, Kochi, Fort Kochi, for hisinformation and further action.
Justice M. L. Joseph Francis Ombudsman
//True Copy//
Sd/Secretary”
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part of the petitioner. Paragraph 6 of the judgment in W.P.(C) No.18966 of 2018 has already been extracted supra.
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No.267 of 2019, was dismissed on 28.01.2019. In the said appeal, Panchayat has even opposed consideration of application dated 01.12.2018 submitted before the Government for assignment of land in occupation of St.Sebastian's Church. Panchayat has contended that land is required for expansion of road.
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For the reasons stated supra, we are not inclined to entertain this appeal. Hence, writ appeal is dismissed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE
Sd/A.M.SHAFFIQUE JUDGE
Krj
//TRUE COPY//
P.A. TO JUDGE
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APPENDIX
PETITIONER'S/S EXHIBITS:
| ANNEXURE-A1 | PHOTOCOPY OF JUDGMENT DATED 28.01.2019 BY THE DIVISION BENCH OF THIS HON'BLE COURT IN W.A.NO.267 OF 2019 |
|---|---|
| ANNEXURE-A2 | PHOTOCOPY OF THE REQUEST DATED 18.02.2019 SUBMITTED BY THE 7TH RESPONDENT CHURCH BEFORE THE PANCHAYAT |
| ANNEXURE-A3 | PHOTOCOPY OF THE DECISION NO.2(1) OF THE ELANKUNNAPUZHA GRAMA PANCHAYAT COMMITTEE TAKEN IN ITS MEETING HELD ON 13.03.2019 ALONG WITH ITS ENGLISH TRANSLATION |
| ANNEXURE-A4 | PHOTOCOPY OF THE ORDER OF THIS HON'BLE COURT DATED 20.03.2019 IN CONTEMPT CASE (CIVIL) NO.76 OF 2019. |
RESPONDENTS' EXHIBITS:-
| ANNEXURE | R1(A) TRUE COPY OF THE JUDGMENT DATED 28.1.2019 IN W.P(C) NO.1657/2019 |
|---|---|
| ANNEXURE | R1(B) TRUE COPY OF THE LETTER DATED 19/02/2019 ISSUED BY THE VICAR, ST. SEBASTIAN'S CHURCH |
| ANNEXURE | R1(C) TRUE COPY OF THE PHOTOGRAPH SHOWING THE DEMOLISHED PORTION OF THE COMPOUND WALL |
| ANNEXURE | R1(D) TRUE COPY OF THE DECISION TAKEN BY THE PANCHAYAT COMMITTEE DATED 22.1.2019. |
| ANNEXURE | R(D)(1) TRUE COPY OF THE ENGLISH TRANSLATION OF ANNEXURE R1(D) |
| ANNEXURE | R1(E) TRUE COPY OF THE ORDER DATED 12.06.2019 IN I.A. 891/19 IN APPEAL NO.402/2019. |
| ANNEXURE | R1(F) TRUE COPY OF THE REPORT OF THE TALUK SURVEYOR DATED 7.12.2018 AFTER MEASURING THE PROPERTY FOR COMPLIANCE OF THE JUDGMENT OF THE LEARNED SINGLE JUDGE. |
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ANNEXURE R1(F)(1) TRUE COPY OF THE ENGLISH TRANSLATION OF ANNEXURE R1(F) ANNEXURE-R1(G) TRUE COPY OF THE SKETCH PREPARED BY THE TALUK SURVEYOR IN WHICH IT IS CLEARLY MARKED AND REPORTED THAT THE ROAD IS ENCROACHED BY THE 7TH RESPONDENT. ANNEXURE R1(G)(1) TRUE COPY OF THE ENGLISH TRANSLATION OF ANNEXURE R1(G) ANNEXURE R1(H) TRUE COPY OF THE SKETCH IN R.S. NO.500 IN BLOCK NO.9 OF ELANKUNNAPUZHA GRAMA PANCHAYAT. ANNEXURE-R(7)(A) TRUE COPY OF THE LETTER DATED 27.6.2019 GIVEN BY THE APPELLANT TO THE TAHSILDAR, KOCHI, FOR MEASURING THE ST.SEBASTIAN'S CHURCH DATED (TOGETHER WITH THE ENGLISH TRANSLATION)
ANNEXURE-R(7)(B) TRUE COPY OF THE REPORT DATED 3.7.2019 TOGETHER WITH THE PLAN PREPARED BY THE REVENUE DEPARTMENT CONSEQUENT TO ANNEXURE-R(7)(A) LETTER (TOGETHER WITH THE ENGLISH TRANSLATION)
ANNEXURE-R(7)(C) TRUE COPY OF THE RELEVANT PAGE OF ASSET REGISTER OF APPELLANT PANCHAYAT WITH RESPECT TO THE ENTRY OF ST.SEBASTIAN'S CHURCH ROAD.
ANNEXURE-R(7)(D) TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE 1ST RESPONDENT BEFORE THE HON'BLE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.
1 issue framed by the court
Could the Panchayat's subsequent lease of encroached land to the Church justify setting aside existing directions for removal of the encroachment?
ELANKUNNAPUZHA GRAMA PANCHAYAT
T.S.SHINESON
THE DISTRICT COLLECTOR, ERNAKULAM
THE REVENUE DIVISIONL OFFICER
THE TAHSILDAR
ST.SEBASTIANS CHURCH
S.MANIKUMAR
A.M.SHAFFIQUE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
