Allowed

Choondal Grama Panchayath v. Sunil K.K

Kerala HC19 Feb 2020WA/284/2020

Case brief

AI extract

What is this about?

This court disposed of a Writ Appeal filed by a Panchayath against a Single Judge's order permitting a petitioner to reconstruct a compound wall. An order by consent mandated following removal of encroachment rules for the cited case, effectively re-frames the request as within the standard legal framework.

What did the court decide?

The Writ Appeal was disposed of by consensus directing initiation of removal of encroachment proceedings under Kerala Panchayath Raj Rules, 1996, within 15 days.

Choondal Grama Panchayath Vs Sunil K.K — Writ and Judicial Review | 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 THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

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WA.No.284 OF 2020

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AGAINST THE ORDER/JUDGMENT IN WP(C) 33595/2019(Y) OF HIGH COURT OF KERALA

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APPELLANT/S:

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1 CHOONDAL GRAMA PANCHAYATH, REP. BY ITS SECRETARY, KECHERI P. O., THRISSUR - 680 501.

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2 THE PRESIDENT, CHOONDAL GRAMA PANCHAYATH, KECHERI P. O., THRISSUR - 680 501.

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BY ADV. SRI.DEEPU THANKAN

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RESPONDENT/S:

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1 SUNIL K.K, S/O. LATE K. K. KRISHNANKUTTY, KONDOLY HOUSE, 53/870, UDAYA NAGAR, 11TH A CROSS ROAD, AYYANTHOLE, THRISSUR - 680 003.

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2 THE VILLAGE OFFICER, VILLAGE OFFICE, CHOONDAL, THRISSUR - 680 502. R1 BY ADV. SRI.T.C.SURESH MENON R1 BY ADV. SRI.P.S.APPU

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R2 BY SR.GOVERNMENT PLEADER SRI.ARAVIND KUMAR BABU

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A.284/2020

J U D G M E N T

Dated this the 19^th day of February, 2020

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S.Manikumar, CJ.

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This writ appeal is filed against the judgment of a learned single Judge of this Court dated 17.12.2019 in W.P.(C).No.33595 of 2019.

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2. Short facts leading to the case are as follows:

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Appellants are the first and second respondents in W.P.(C)No.33595/2019. The first respondent herein is the petitioner in the above said writ petition and the second respondent is the third respondent therein. Appellants are aggrieved by the judgment rendered by the Learned Single judge, dated 17/12/2019 allowing the above Writ Petition, especially the observation made therein, that the petitioner should be allowed to construct compound wall in the same manner and in the same position as it was existing earlier.

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The writ petition was filed by the 1^st respondent herein challenging Exhibit P12 proceedings of the Secretary of the first Appellant Panchayat dated 22/08/2019 and also seeking for a direction to the Secretary to grant building permit to the petitioner to reconstruct compound wall, a portion of which had collapsed and the remaining demolished.

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Petitioner constructed a compound wall, illegally, without obtaining prior permission from the authorities, blocking a culvert which existed in the said area. During the unprecedented rain in the month of August, 2018, the entire area was flooded and it was only then the authorities realized the illegal construction of the respondent. Since the compound wall was partially destroyed in the floods, the authorities demolished the rest and removed the remnants to ensure passage of water through the culvert.

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The 1^st respondent approached this Court by filing W.P.C.No. 28901 of 2018 alleging that the appellants herein are attempting to cut across a canal

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W.A.284/2020

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through his property. This Court was pleased to dispose off the writ petition leaving liberty to the respondent herein to approach the Panchayath for reconstruction of the compound wall by making an apposite application.

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The 1^st respondent instead of making an application for building permit pursuant to the judgement of this Court in W.P.(C).No.28901 of 2018 dated 25/10/2019, again approached this Court challenging Exhibit P12 proceedings of the Appellant Panchayath, which was issued on 22/08/2019, i.e., even before the above said judgment of this Court dated 25/10/2019 stating that the Panchayath has refused permission to reconstruct the compound wall.

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In fact, Exhibit P12 is merely a communication to the 1^st respondent herein seeking to cure certain defects in the application for building permit which was issued prior to the judgement of this Court in W.P.(C.)No.28901 of 2018 dated 25/10/2019.

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The Learned Single Judge without giving an opportunity to file a counter affidavit in the matter to the appellants, disposed off the writ petition on 17/12/2019 taking a wrong view that there was a pre-existing compound wall, which had to be demolished so as to enable flow of water during the last floods and that obviously, therefore, the 1^st respondent is prima facie entitled to have his compound wall constructed in the same manner as it was existing earlier. Hence, this writ appeal is filed.

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Heard the learned counsel for the contesting parties.

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Attention of this Court was also invited to Ext.P10 judgment in

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W.P.(C).No.28901 of 2018 dated 25.10.2019 wherein a learned single

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Judge after hearing both the sides, delivered the following judgment:

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“In the aforesaid circumstances, I order this writ petition, granting permission to the respondents to take appropriate action against the petitioner and his property, however, only after implicitly following the provisions of law.

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I also leave liberty to the petitioner to approach the

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W.A.284/2020

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Panchayath for reconstruction of the compound wall by making an apposite application, which shall then be considered by the Panchayat in terms of law and after affording an opportunity of being heard to the petitioner.

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Needless to say, in the interregnum, no action except after scrupulously following law, shall be taken against the property of the petitioner, including to cut open a water canal; which however, the respondents will be at liberty to do, by adhering to the applicable Statutes, Rules and Regulations.”

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When Above paragraphs and directions contained in W.P.

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(C).No.33595 of 2019 dated 17.12.2019 were brought to the notice of the learned counsel for the respondents and when this Court, observed that directions issued are contradictory, both the learned counsel for the appellants as well as the respondents, consented for the following judgment, to be made in this writ appeal.

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As per the consensus, instant writ appeal is disposed of with the following directions:

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i) Directions contained in W.P.(C).No.28901 of 2018 dated 25.10.2019 (Ext.P10), granting permission to the Village Officer, 2^nd respondent herein, to take appropriate action against Sunil K.K, the 1^st respondent, and his property would be complied with.

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ii) Steps have to be taken under the Kerala Panchayath Raj (Removal of Encroachment and Imposition and Recovery of Penalty

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for Unauthorised Occupation) Rules, 1996, which provides for removal of encroachment.

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iii) Initiation of such proceedings for removal of encroachment can be done within 15 days from the date of receipt of a copy of the judgment.

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iv) On receipt of the notice issued under the provisions of the Kerala Panchayath Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupaton) Rules framed thereunder, contesting respondent shall respond within two weeks thereafter.

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v) Thereafter appellant Panchayath shall pass orders on merits and in accordance with the Statutes, Rules and Regulations within 15 days.

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Subject to the outcome of the proceedings initiated for removal

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of encroachment, if any, it is open for the 1^st respondent to make an application to the competent authority in accordance with law.

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As the judgment in this writ appeal is passed on consensus,

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we make it clear that the contesting parties shall adhere to the time limit set out by this Court. In as much as the contesting parties have consented to the above said terms, there is no need for this Court to delve into other aspects.

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W.A.284/2020

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On consensus, with the above modifications, this writ appeal is disposed of. In view of the consensus arrived at, Ext.P12 proceedings of the Panchayat dated 22.08.2019, which demanded the respondent to furnish certain documents from the Revenue Department, no longer

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survives.

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Sd/S.MANIKUMAR CHIEF JUSTICE

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Sd/SHAJI P.CHALY JUDGE

W.A.284/2020

APPENDIX

PETITIONER'S/S EXHIBITS:

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ANNEXURE A TRUE COPY OF THE ORDER DATED 23.8.2018 PASSED BY THE TAHASILDAR, KUNNAMKULAM.

Choondal Grama Panchayath v. Sunil K.K

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Choondal Grama Panchayath v. Sunil K.K

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