Disposed

Thomas Stephen v. T.S.Sajeesh

Kerala HC11 Nov 2020Con.Case(C)/1534/2020

Case brief

AI extract

What is this about?

This Contempt Petition addressed allegations that the Panchayat Secretary obstructed the Petitioners from constructing a boundary wall despite prior court directions and a building permit. The Court, noting the Petitioners are elderly and appreciating the Respondent's fair submissions and undertaking, disposed of the contempt petition by directing a Village Officer to supervise the construction an

What did the court decide?

Directions issued for Village Officer supervision of construction; Police to assist Petitioners against unlawful obstructions.

Thomas Stephen Vs T.S.Sajeesh — Pension and Retirement Benefits | Kerala HC (2020)

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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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WEDNESDAY, THE 11TH DAY OF NOVEMBER 2020 / 20TH KARTHIKA, 1942

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CON.CASE(C).NO.1534 OF 2020 IN WP(C).NO.12379/2020

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AGAINST THE JUDGMENT DATED 24.6.2020 IN WP(C) 12379/2020(V) OF HIGH COURT OF KERALA

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PETITIONERS/PETITIONERS:

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1 THOMAS STEPHEN, AGED 70 YEARS, S/O. V.G. THOMAS,VAYALIRAKATHU, KOODAL P.O, PATHANAMTHITTA DISTRICT-689 693

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2 SARAMMA STEPHEN, AGED 69 YEARS, W/O. THOMAS STEPHEN, VAYALARIKATHU, KOODAL P.O, PATHANAMTHITTA DISTRICT-689 693

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BY ADVS. SRI.LIJU.V.STEPHEN SMT.INDU SUSAN JACOB

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RESPONDENT/3RD RESPONDENT:

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SHRI.T.S.SAJEESH SECRETARY, KALANJOOR GRAMA PANCHAYAT, KALANJOOR P.O, PATHANAMTHITTA DISTRICT-689 694.

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BY ADV. SRI.K.SHAJ SAIGI JACOB PALATTY, GOVERNMENT PLEADER

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THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 11.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ALEXANDER THOMAS,

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Cont. Case (C) No. 1534 of 2020 in W.P. (C) No. 12379 of 2020

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Dated this the 11^th day of November, 2020

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The above Contempt of Court case has been filed alleging

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non compliance of the directions issued by this Court in Anx.A1 judgment dated 24.6.2020 in WP(C).No.12379/2020 filed by the petitioners herein.

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Heard Sri.Liju V.Stephen, learned counsel appearing for the petitioners and Sri.K.Shaj, learned counsel appearing for the respondent.

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The case of the petitioners is that, the directions issued by this Court in Anx.A1 judgment that the Tahsildar/Taluk Surveyor should take steps to identify and demarcate the boundaries of the petitioners' property to enable him to construct boundary wall and then to secure building permit, have been already complied with by the Tahsildar/Taluk Surveyor concerned as can be seen from Anx.A2. But that, the other directions in Anx.A1 judgment that the respondent Panchayat Secretary should issue building permit, to enable the petitioners to construct the boundary wall in the boundaries so

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Cont. Case (C) No. 1534 of 2020

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identified by the Tahsildar/Taluk Surveyor in accordance with the Kerala Survey and Boundaries Act and the rules framed there under, has been violated by the respondent Panchayat Secretary. The basis for this allegation of the petitioners is that, though the respondent Panchayat Secretary has issued Anx.A3 building permit dated 16.9.2020 to the petitioners to construct the boundary wall after the issuance of Anx.A2 proceedings dated 30.7.2020 by the Tahsildar/Taluk Surveyor identifying the boundaries of the property, the respondent Panchayat Secretary and other officials and men under them are preventing the petitioners to actually construct the boundary wall in the boundaries so identified by the Tahsildar/Taluk Surveyor as per Anx.A2. Further that, the petitioners have reliably learnt that the panchayat officials have manipulated and altered the existing documents to show as if the width of panchayat road is 8 meters, in order to built up a case that the petitioners cannot be permitted to construct the boundary wall in the boundaries of the property identified by the Tahsildar/Taluk Surveyor as per Anx.A2.

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When the case had come up for consideration on

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Cont. Case (C) No. 1534 of 2020

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previous occasion, Sri.K.Shaj, learned counsel appearing for the respondent had submitted that if the boundaries of petitioners' property have already been demarcated by the Tahsildar/Taluk Surveyor as per Anx.A2 proceedings dated 30.7.2020 in compliance of directions issued by this court in Anx.A1 judgment, then the respondent Panchayat Secretary or any of the official of the Panchayat will not insist for issuance of the building permit for construction of boundary wall except in accordance with the boundaries demarcated in Anx.A2. This Court had recorded the unconditional undertaking made on behalf of the Panchayat Secretary and had ordered that the construction of boundary wall should be in accordance with such identified boundaries so long as Anx.A2 proceedings dated 30.7.2020 has not been altered in the manner known to law. The operative portion of the order passed by this Court on 12.10.2020 recording the undertaking of respondent Panchayat Secretary reads as follows:

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“................ it is ordered that if the boundaries of the petitioners' property has already been demarcated by the Tahsildar and the Taluk Surveyor concerned as per Annexure-A2 proceedings dated 30.07.2020 in compliance with the directions issued by this Court in Annexure-A1 judgment dated 24.06.2020 in W.P(C) No.12379/2020, then the respondent-Panchayath Secretary or any of the officials concerned in the Panchayath, shall not insist for issuance of the building permit for construction of the boundary wall except in

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Cont. Case (C) No. 1534 of 2020

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accordance with the boundaries demarcated in Anneuxre-A2. This order will be in force so long as Anneuxre-A2 proceedings dated 30.07.2020 issued by the Tahsildar (Land Records), Konni in consultation with the Taluk Surveyor, Konni has not been altered or varied, in the manner known to law.”

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Today when the matter has been taken up for consideration, Sri.K.Shaj, learned counsel appearing for the respondent submits that, the respondent Panchayat Secretary has already filed a detailed affidavit dated 11.11.2020 stating that the respondent Panchayat Secretary or any other official of the Panchayat has not in any manner prevented the petitioners from constructing the boundary wall as per the building permit granted as per Anx.A3 in accordance with the boundaries identified as per Anx.A2 and that the allegations raised by the petitioners are to the contrary, incorrect and factually wrong. Further that, the respondent Panchayat Secretary or the officials of the Panchayat has no authority to make a fresh measurement when the Tahsildar and Taluk Surveyor has already demarcated boundaries of the petitioners' property in accordance with the provisions contained in the Kerala Survey and Boundaries Act and the Rules framed there under. In that regard, Sri.K.Shaj, learned counsel appearing for the respondent has invited this Court's attention to para

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Cont. Case (C) No. 1534 of 2020

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Nos.8 & 9 of the affidavit dated 11.11.2020 filed by the respondent which read as follows:

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“8. In reply to para 8, it is humbly submitted that the averment that I had, through my officers, restrained the petitioners from constructing the boundary wall as per the Survey Sketch and Report finalized by the Taluk Surveyor and that I further committed deliberate disobedience by ignoring the measurement and demarcation made by the Taluk Surveyor and Tahsildar and further directed the officers under me to make fresh measurement and demarcation and directed the petitioners to construct the boundary wall as per the new measurement and demarcation made by the Panchayat authorities is incorrect and hence denied. I have not directed the officers under me to make fresh measurement. Further, I submit that I have no authority to make a fresh measurement especially when the Taluk Surveyor and Tahasildar has demarcated the boundaries of the property of the petitioners.

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9. In reply to the affidavit dated 22/10/2020 submitted by the petitioners, it is humbly submitted that the facts in para 4 as averred are incorrect and hence denied. I may submit that I never deputed the Assistant Engineer, LSGD to the property of the petitioners on 28/09/2020. I or the Assistant Engineer didn't direct the petitioners to make construction of the boundary wall only as per the demarcation made by the Assistant Engineer. It is submitted that pursuant to commencement of the boundary wall construction,some local people objected to the work and it seems the petitioners had preferred some complaints to the Circle Inspector of Police, Koodal. In response to the complaints, the Circle Inspector had requested the Assistant Engineer to come to the construction site to point out the boundary demarcating the road. The Assistant Engineer went to the site at the request of the Circle Inspector and not on my instructions. I nor my officials working under me have never restrained the petitioners from continuing the construction of the compound wall. To my information, the Assistant Engineer never said that she was not bound by the orders passed by this Hon'ble Court.”

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The counsel for the petitioners submits that, the abovesaid undertaking made by the respondent Panchayat Secretary may be recorded by this Court, but that the case of the Panchayat Secretary that neither he nor any of the officials of the

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Cont. Case (C) No. 1534 of 2020

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Panchayat have not prevented the petitioners from constructing boundary wall in accordance with the boundaries identified as per Anx.A-2 etc is factually wrong and incidents in that regard have already narrated in detail in the averments in the Contempt case, and that the 1^st petitioner is an elderly senior citizen aged more than 70 years, and that the 2^nd petitioner is an elderly senior citizen lady aged more than 69 years, and there are no other persons in the family to take care of them and they have serious apprehensions that the respondent Panchayat Secretary and the men under him may again cause problems.

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Sri.K.Shaj, learned counsel appearing for the respondent would submit that, the above apprehension raised by the petitioners is without any factual foundation, and that in order to allay any such apprehensions of the petitioners, this Court may direct a competent revenue official concerned like the Village Officer to supervise the actual process of construction of boundary wall granted as per Anx.A3 strictly in accordance with the boundaries identified by the Tahsildar/Taluk Surveyor in accordance with Anx.A2 issued under the provisions of the Kerala

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Cont. Case (C) No. 1534 of 2020

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Survey and Boundaries Act and the rules framed there under, and that the respondent Panchayat Secretary has neither the authority nor the inclination in any manner to alter the boundaries statutorily identified as per Anx.A2.

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The abovesaid fair submissions made by Sri.K.Shaj, learned counsel appearing for the respondent Panchayat Secretary are placed on record and are appreciated by this Court. Taking into account the fact that petitioners are elderly senior citizens aged more than 70 years and 69 years respectively, and in view of the abovesaid fair submissions made by the counsel for the respondent on the basis of instructions of his party, it is ordered that the Village Officer or an official nominated by him like the Village Assistant may supervise the construction of boundary wall in question, in order to ensure that the boundary wall is constructed strictly in accordance with Anx.A-3 building permit, and in accordance with the boundaries identified as per Anx.A-2 letter dated 30.7.2020 issued by the Tahsildar, Konni, in consultation with the Taluk Surveyor, Konni, as per the provisions contained in the Kerala Survey and Boundaries Act and the rules

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Cont. Case (C) No. 1534 of 2020

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framed there under. If there are any unlawful obstructions to such construction of the petitioners' boundary wall, the petitioners may seek the aid and assistance of the Police to deal with such situations, and if such a request is made by the petitioners to the SHO concerned and in case, the Village Officer informs the SHO that the petitioners are constructing the boundary wall only as per the above demarcated boundaries, then the SHO will give necessary aid and assistance of the Police to the petitioners to carry out the construction.

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In the light of these aspects and taking into consideration the fair submissions made by Sri.K.Shaj, learned counsel appearing for the respondent, this Court is of the view that this Contempt petition need not be kept pending any longer.

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The counsel for the petitioners will ensure that two copies of this judgment are personally served on Sri.Saigi Jacob Palatty, learned Senior Government Pleader, who in turn is requested to ensure that copies of this judgment are directly forwarded to the Village Officer concerned and the SHO concerned through the liaison officials of the revenue and police departments

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Cont. Case (C) No. 1534 of 2020

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attached to the office of the Advocate General, to ensure compliance of abovesaid directions.

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Recording the abovesaid submissions and undertaking of the respondent Panchayat Secretary and with the above observations and directions, this Contempt Case (Civil) will stand finally disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE

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MMG

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Cont. Case (C) No. 1534 of 2020

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APPENDIX

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PETITIONERS' EXHIBITS:

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ANNEXURE A1	CERTIFIED	COPY	OF THE JUDGMENT DATED
	24.6.2020	IN W	P(C)NO. 12379/2020 OF
	THE HON ERNAKULAM.	'BLE	COURT OF KERALA,
ANNEXURE A2	A TRUE CO	PY OF	THE LETTER ISSUED BY
	THE TAHS PETITIONER	ILDAR DATED	KONNI TO THE 1ST 30.07.2020.
ANNEXURE A3	A TRUE CO BUILDING KALANJOOR 16.9.2020.	PY OF PERM GRA	THE SITE APPROVAL AND IT ISSUED BY THE MA PANCHAYAT DATED
ANNEXURE A4	A TRUE CO THE 1ST POLICE STA	PY OF PETITI TION D	THE COMPLAINT FILED BY ONER TO SHO, KOODAL ATED 1.10.2020.
ANNEXURE A5	A PHOTOGRA	PH OF	THE DEMARCATION OF THE
	BOUNDARY SURVEYOR.	LINE	AS FIXED BY TALUK
ANNEXURE A6	THE PHOTO RE-FIXED PANCHAYAT	GRAPHS BY OFFICI	OF THE BOUNDARY LINE THE KALANJOOR GRAMA ALS.

Thomas Stephen v. T.S.Sajeesh

Case brief

What is this about?

What did the court decide?

Thomas Stephen v. T.S.Sajeesh

Case brief

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