Partly allowed

Joseph Jolly Pinhero v. the Elamkunnappuzha Grama Panchayath

Kerala HC9 Dec 2020WP(C)/1650/2020

Case brief

AI extract

What is this about?

The High Court of Kerala in a writ petition quashed an impugned order concerning alleged unauthorized construction and encroachment over public land by the petitioner. The court directed the Panchayat to initiate fresh proceedings following proper legal procedure under the Land Conservancy Act. The petition was partly allowed.

What did the court decide?

Impugned order set aside; Panchayat directed to start fresh proceedings in accordance with law with proper notice.

Joseph Jolly Pinhero Vs the Elamkunnappuzha Grama Panchayath — Land Acquisition | 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 A.MUHAMED MUSTAQUE

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WEDNESDAY, THE 09TH DAY OF DECEMBER 2020 / 18TH AGRAHAYANA, 1942 WP(C).No.1650 OF 2020(E)

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PETITIONER/S:

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JOSEPH JOLLY PINHERO, AGED 64 YEARS, S/O. MICHEAL PINHEIRO, KUMMAPPILLY HOUSE, ELAMKUNNAPPUZHA-682 503.

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BY ADVS. SHRI.SHERRY J. THOMAS SHRI.JOSEPH C.V.(CHELAKKATT) SMT.THAMANA BAI SRI.JOEMON ANTONY SHRI.LIGISH XAVIER

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RESPONDENT/S:

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1 THE ELAMKUNNAPPUZHA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, ELAMKUNNAPUZHA, ERNAKULAM-682 503.

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2 THE SECRETARY, ELAMKUNNAPPUZHA GRAMA PANCHAYATH, ELAMKUNNAPPUZHA, ERNAKULAM-683 503.

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3 THE LSGD ENGINEER, ELAMKUNNAPPUZHA GRAMA PANCHAYATH, ELAMKUNNAPPUZHA, ERNAKULAM-682 503.

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R1-3 BY ADV. SRI.P.M.BENZIR

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BY GOVERNMENT PLEADER, SRI.G RANJITHA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.1650/2020 2

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JUDGMENT

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Dated this the 9th day of December 2020

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The dispute in this case is in regard to the alleged unauthorized construction undertaken by the

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petitioner. He challenges the proceedings of the Elamkunnappuzha Grama Panchayat. The said proceedings

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would show that the petitioner has undertaken unauthorized construction.

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In the counter affidavit filed by the first

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respondent it is stated in paragraph-3 as follows:

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“ Thereafter, the local residents filed a mass petition dated 25.02.2020 before the District Collector, Ernakulam, complaining that the writ petitioner has constructed the building by encroaching over the government puramboke land and the adjacent drainage and pathway. The District Collector, Ernakulam, as per letter No.L8-DCEKM/2838/2020 dated 12.03.2020 forwarded the said mass petition dated 25.02.2020 to the Tahsildar(Land Records) Kochi, and the second respondent directing to conduct enquiry into the matter and to take appropriate action in accordance with law for evicting the encroachment over government puramboke land, if any. The photocopy of the letter No.L8-DCEKM/2838/2020 dated 12.03.2020 by the District Collector, Ernakulam, addressed to the second respondent is produced herewith and marked as Ext.R1(d). The photocopy of the mass petition dated 25.02.2020 filed by the

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WP(C).No.1650/2020 3

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local residents before the District Collector, Ernakulam, which was forwarded to the second respondent is produced herewith and marked as Ext.R1(e).”

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This would show that the petitioner has encroached upon the public land. If the petitioner has encroached upon the public land, necessarily, the proceedings will have to be issued under the Land Conservancy Act, 1957, to remove such encroachment. It is not discernible that

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the respondents are initiating action to remove the encroachment under the Land Conservancy Act or to demolish unauthorized construction undertaken in the petitioner's property. It is appropriate that proper proceedings are initiated against the petitioner in accordance with law. It is open for the respondents to initiate separate proceedings for unauthorized construction in violation of the Building Rules and as against any extension of construction in the public land. However, the petitioner should be given proper notice in regard to the nature of encroachment and unauthorized construction. Accordingly, the impugned order is set aside. The Panchayat is given liberty to

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WP(C).No.1650/2020 4

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start fresh proceedings in accordance with law as above.

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The counter affidavit filed by the first respondent reveals that there is an encroachment of puramboke land. The Panchayat, after identifying such area with the help of the Revenue authority, is directed to initiate proceedings scrupulously following the procedure under law.

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Sd/-

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A.MUHAMED MUSTAQUE

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JUDGE

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WP(C).No.1650/2020 5

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT	P1	THE TRUE COPY OF THE TAX RECEIPT.
EXHIBIT	P2	THE TRUE COPY OF THE PHOTOGRAPHS WHICH SHOWS THE EXTENSIONS PUT BY THE VARIOUS COMMERCIAL SHOPS.
EXHIBIT	P3	THE TRUE PHOTOGRAPHS OF THE PETITIONERS SMALL SHOP ROOM WITH RESIDENCE.
EXHIBIT	P4	THE TRUE COPY OF THE LAWYER NOTICE DATED 28.12.19.
EXHIBIT	P5	TRUE COPY OF THE PROCEEDINGS OF PANCHAYATH DATED 28.12.2019.
EXHIBIT	P5(A)	TRUE COPY OF THE ENGLISH TRANSLATION OF PROCEEDINGS OF PANCHAYATH DATED 28.12.2019.
EXHIBIT	P6	TRUE COPY OF REPLY 04.01.2020.
EXHIBIT	P7	THE TRUE COPY OF THE NOTICE DATED 13.1.2020.
EXHIBIT	P7A	ENGLISH TRANSLATION OF EXT.P7.
EXHIBIT	P8	ENGLISH TRANSLATION OF PETITION SUBMITTED BY THE PETITIONER'S WIFE.
EXHIBIT	P9	THE TRUE COPY OF THE RECEIPT DATED 26.12.19.
EXHIBIT	P10	THE TRUE COPY OF THE RECEIPT DATED 24.12.19.
RESPOND	ENT'S/S	EXHIBITS:
EXHIBIT	R1(A)	PHOTOCOPY OF THE LETTER NO.DDP-EKM/2672/2019- C2/LDIS DATED 11/12/2019 BY THE DEPUTY DIRECTOR OF PANCHAYATS, ERNAKULAM ADDRESSED TO THE 1ST RESPONDENT.
EXHIBIT	R1(B)	PHOTOCOPY OF THE COMPLAINT DATED 05/12/2019 FILED BY SRI.VINCY PINHERO BEFORE THE DEPUTY DIRECTOR OF PANCHAYATS, ERNAKULAM.
EXHIBIT	R1(C)	PHOTOCOPY OF THE INSPECTION REPORT DATED 27/12/2019 BY THE OVERSEER OF THE 1ST RESPONDENT PANCHAYAT.

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WP(C).No.1650/2020 6

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EXHIBIT R1(D) PHOTOCOPY OF THE LETTER NO.L8-DCEKM/2838/2020 DATED 12/03/2020 BY THE DISTRICT COLLECTOR, ERNAKULAM ADDRESSED TO THE 2ND RESPONDENT.

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EXHIBIT R1(E) PHOTOCOPY OF THE MASS PETITION DATED 25/02/2020 FILED BY THE LOCAL RESIDENTS BEFORE THE DISTRICT COLLECTOR, ERNAKULAM. EXHIBIT R1(F) PHOTOCOPY OF THE LETTER NO.A3/3456/20 DATED 24/04/2020 BY THE 2ND RESPONDENT ADDRESSED TO THE TAHSILDAR, KOCHI TALUK.

Joseph Jolly Pinhero v. the Elamkunnappuzha Grama Panchayath

Case brief

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Joseph Jolly Pinhero v. the Elamkunnappuzha Grama Panchayath

Case brief

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