Dismissed

Shaji v. Thalayazham Grama Panchayat

Kerala HC25 Feb 2020WP(C)/4058/2020

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of a writ petition challenging the Grama Panchayath's notices to vacate the petitioner's snack shop. The Court lifted the interim stay and directed the petitioner to vacate the premises by 05.03.2020, reserving the plea for alternative relocation for the Panchayath.

What did the court decide?

Petitioner directed to vacate premises by 05.03.2020; plea for new location reserved for Panchayath consideration.

Shaji Vs Thalayazham Grama Panchayat — Service and Employment | 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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TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941

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WP(C).No.4058 OF 2020(F)

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PETITIONER:

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SHAJI

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AGED 54 YEARS S/O. MUHAMMED, SHEJILA MANZIL, ULLALA KARA THALAYAZHAM VILLAGE, VAIKOM TALUK, THALAYAZHAM P.O. VAIKOM 686 607.

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BY ADV. SMT.RESMI NANDANAN

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RESPONDENTS:

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1 THALAYAZHAM GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, ULLALA KARA, THALAYAZHAM VILLAGE, VAIKOM TALUK, THALAYAZHAM P.O. VAIKOM 686 607.

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2 THE SECRETARY, THALAYAZHAM GRAMA PANCHAYATH, ULLALA KARA, THALAYAZHAM VILLAGE, VAIKOM TALUK, THALAYAZHAM P.O. VAIKOM 686 607.

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R1-R2 BY ADV. SRI.S.RAJMOHAN, SC, THALAYAZHAM GRAMA PANCHAYAT

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P(C) No.4058 of 2020

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ALEXANDER THOMAS, J.

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===========================

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W.P(C) No.4058 of 2020

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===========================

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Dated this the 25^th day of February, 2020

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JUDGMENT

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The case set up in this Writ Petition (Civil) is as follows:

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The petitioner is the proprietor of Shejila Thattukada, a sole proprietorship registered under FSS Act, 2006 and it was duly recognized as a petty retailer of snacks and tea shop by the Commissionerate of Food Safety, Government of Kerala. He is the sole breadwinner of his family and their livelihood is solely depends upon the income from the aforesaid petty shop. The said establishment is situated at Cherupunnachuvadu junction of Ullala Kara at Thalayazham village. For the last 36 years and more he is carrying out the aforesaid business continuously without any objection. At first, it was only a bunk and later it was modified to its present state by erecting solid pillars and roofing sheets. The larget extent of property belongs to Vadakkedathu Mana, a prominent Jenmi family of that area. It is submitted that they are the main landlords and number one pattadaar of that village. The predecessors of the said family have surrendered awesome properties

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W.P(C) No.4058 of 2020

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for public good by individual assignments and surrender to Government bodies. The property was given by the then Karnava of the said Jenmi family to the petitioner's predecessor as a token of gratitude for the services rendered to the said tharavadu. Now the respondent issued notice and directed to stop the entire function of the shop. The petitioner approached the panchayath and submitted that he is ready for removing the shop for concreting work, his only request is that after this work, he may be permitted to re-start the shop. But suddenly the respondent issued two notices under Secs.220B & 232, directed to remove the shop within three days. The respondent failed to give reasonable time and not giving other suitable place for the petitioner.

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It is in the light of these averments and contentions, the

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petitioner has filed the instant Writ Petition (Civil) with the following prayers:

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“ i] Issue a writ of mandamus or any other appropriate writ, order or direction directing respondents 1, and 2 to issue sufficient time for taking necessary steps for removing the shop.

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ii] Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1and2 to give permission for re-starting the shop after the work.

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iii] Issue any other appropriate writ or order which this Honourable court may deem just, fit and proper in the facts and circumstances of the case and sufficient for the redressal of the grievances of the petitioner.”

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W.P(C) No.4058 of 2020

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Heard Smt.Resmi Nandanan, learned counsel appearing for the petitioner and Sri.S.Rajmohan, learned Standing Counsel appearing for the respondents-Thalayzham Grama Panchayath, Vaikom.

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Smt.Resmi Nandanan, learned counsel appearing for the petitioner has made submissions in tune with the pleadings in this W.P(C).

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Per contra , Sri.S.Rajmohan, learned Standing Counsel appearing for the respondents-Thalayzham Grama Panchayath would pointed out that the petitioner has set up the shop by illegally encroached into the area immediately adjoining to the road and therefore, the said land area is also statutorily vested with the panchayath going by the mandatory provisions contained in the Kerala Panchayath Raj Act, 1994 and it is highly essential that the said encroachment is removed, so that the road is maintained properly, as otherwise the rights of the pedestrians and the persons who are using the vehicle to use the road properly, which is detrimentally affected, as the width of the road is narrow and further that the respondentPanchayath is now constructing a chappath in the road for ensuring the smooth flow of the water during rainy season as otherwise it would cause flooding of the area concerned, etc. Indisputably, the petitioner is

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W.P(C) No.4058 of 2020

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encroached into the land which is vested with the respondentPanchayath.

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This Court while admitting this W.P(C) had issued orders to give some emergent interim relief to the petitioner that the impugned proceedings as per Exts.P-2 & P-3 notices shall be kept in abeyance for a period of three weeks. One of the main contentions raised by the petitioner is that the petitioner should be given reasonable breathing time to shift from the present location, so that he can re-install the shop elsewhere. From the averments in the counter affidavit dated 20.02.2020 filed by the respondents, it is seen that as per Ext.R1(a) notice has been issued as early as on 07.03.2019 directing the petitioner to vacate the said land area. The petitioner has sent Ext.R1(b) lawyer's notice thereto. Thereafter, the respondent-Panchayath has issued Ext.R1(c) notice dated 22.03.2019 directing the petitioner to vacate the land area without any further delay. Thereafter, the petitioner filed a civil suit as O.S.No.25/2020 before the Munsiff's Court, Vaikom, in which the said Munsiff's Court has declined the interim relief sought for by the petitioner.

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In the light of these aspects, it may not be right and proper for this Court to continue the stay order. Accordingly, it is not right and

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W.P(C) No.4058 of 2020

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proper for this Court to extent the impugned stay order any longer. The period of the continuation of the stay order as per the order dated 13.02.2020 is for a period of three weeks, which is upto 05.03.2020. The petitioner is given time upto 05.03.2020 to vacate the land area. In case, the petitioner does not vacate the land area on or before 05.03.2020, the respondent-Grama Panchayath authorities should be at liberty to enforce the impugned proceedings to ensure that the vacant possession of the land area is obtained.

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The learned counsel for the petitioner would point out that this Court may direct the respondent-Panchayath to consider the plea of the petitioner for granting permission to relocate shop in an alternative place without causing any obstructions to the free flow of the pedestrians and vehicles. It is for the petitioner to immediately vacate the present premises and in case, the petitioner voluntarily vacates the present premises on or before the permitted time limit of 05.03.2020, then the petitioner will be at liberty to make request in that regard before the respondent-Panchayath, in which case the respondentPanchayath may consider the said plea and may ascertain as to whether the petitioner should be permitted to restart the shop to many other alternative place without causing any serious obstruction to the free

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flow of traffic and pedestrians. That aspect of the matter is fully with the domain of the respondent-Panchayath authorities concerned.

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With these observations and directions, the above Writ Petition (Civil) stands finally disposed of.

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Sd/-

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ALEXANDER THOMAS JUDGE

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vgd

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W.P(C) No.4058 of 2020

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT	P1	A TRUE	COPY	OF	THE REGISTRATION
		CERTIFIC SAFETY O	ATE I FFICER	SSUE , ET	D BY THE FOOD AND TUMANOOR CIRCLE.
EXHIBIT	P2	A TRUE 11.02.20	COPY 20 UND	OF ER S	THE NOTICE DATED ECTION 220B.
EXHIBIT	P3	A TRUE 11.02.20	COPY 20 UND	OF ER S	THE NOTICE DATED ECTION 232.
RESPONDE	NT'S/S EXHIBITS:
EXHIBIT	R1(A)	A TRUE 07.03.20	COPY 19.	OF	THE NOTICE DATED
EXHIBIT	R1(B)	A TRUE DATED 13	COPY .03.20	OF 19.	THE LAWYER NOTICE
EXHIBIT	R1(C)	A TRUE 22.03.20	COPY 19.	OF	THE REPLY DATED

Shaji v. Thalayazham Grama Panchayat

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Shaji v. Thalayazham Grama Panchayat

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