Allowed

Leelamma Rajan @ Sosamma, v. State of Kerala

Kerala HC22 Sept 2021WP(C)/13288/2021

Case brief

AI extract

What is this about?

This writ petition challenged orders of the Kerala State Human Rights Commission and the Tahsildar directing the opening of a pathway in a civil dispute. The court held that such complaints involving civil disputes are not maintainable before the Commission under Regulation 17(f) and allowed the petition setting aside the orders.

What did the court decide?

Ext. P2 order of the Kerala State Human Rights Commission and Ext. P3 communication of the Tahsildar are set aside.

Leelamma Rajan @ Sosamma, Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2021)

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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 22^ND DAY OF SEPTEMBER 2021 / 31ST BHADRA, 1943 WP(C) NO. 13288 OF 2021

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PETITIONER/S:

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LEELAMMA RAJAN @ SOSAMMA, AGED 65 YEARS W/O.LATE RAJAN, MURUTHONPATHALIL HOUSE, CHITTAR P.O., MANAKKAYAM, PATHANAMTHITTA DISTRICT. BY ADV V.PHILIP MATHEWS GIBI C. GEORGE RADHAKRISHNAN E. AMAL PARTHASARADY

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 KERALA STATE HUMAN RIGHTS COMMISSION, TURBO PLUS TOWERS, PMG JN., VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 033, REPRESENTED BY ITS SECRETARY.

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3 THE TAHSILDHAR, TALUK OFFICE, KONNI, PATHANAMTHITTA DISTRICT-689 691.

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4 THE VILLAGE OFFICER, VILLAGE OFFICE, CHITTAR, PATHANAMTHITTA DISTRICT-689 663.

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5 THE CIRCLE INSPECTOR OF POLICE, CHITTAR, PATHANAMTHITTA DISTRICT-689 662.

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6 K.K.MANI, KOCHUPARAMBIL HOUSE, MANAKKAYAM, CHITTAR P.O., PATHANAMTHITTA DISTRICT-689 662. BY ADV RAMESH .P

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SRI. K.P.HARISH, SR GP FOR R1 AND R3 TO R5

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

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22.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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C.R.

J U D G M E N T

S. Manikumar, C. J.

Instant writ petition has been filed for the following reliefs:-

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“i) Issue a writ of certiorari or other appropriate writ order quashing Exhibits P2 and P3.

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ii) Issue a writ of mandamus or other appropriate writ order directing respondents 3 and 4 to restore the property of the petitioner covered by Exhibit P1 to its original position or in the alternative permit Petitioner to do so and realize its expenses from respondents 1, 3 and 4.”

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Short facts leading to filing of the writ petition are as

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hereunder:-

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Instant writ petition is filed challenging Ext. P2 order of the Kerala State Human Rights Commission, represented by its Secretary, Thiruvananthapuram, the 2^nd respondent, directing to cut open a way through the petitioner's property, based on a complaint on Mr. K. K. Mani, Kochuparambil House, Manakkayam, Chittar P.O.,

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Pathanamthitta, the 6^th respondent, and Ext. P3 order of the Tahsildar, Konni, Pathanamthitta, the 3^rd respondent, directing the Village Officer, Chittar, Pathanamthitta, the 4^th respondent, to take consequential action based on Ext. P2 order.

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According to the petitioner, she is a widow who owns 91.42 cents of property in Chittar Village covered by Ext. P1 land tax receipt. Petitioner has contended that the 6^th respondent filed a complaint before the Kerala State Human Rights Commission, alleging that petitioner had closed a way available to him through her property.

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Petitioner has further contended that the Kerala State Human Rights Commission, passed Ext. P2 order, directing to open a way through her property covered by Ext. P1, without hearing her.

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Based on Ext. P2 order of the Commission, the Tahasildar, Konni, has passed Ext. P3 communication. Inter alia, the petitioner has contended that the Kerala State Human Rights Commission, has no jurisdiction to enter into any complaint relating to any civil dispute. Reliance has been made to Regulation 17(f) of the Kerala State Human Rights Commission (Procedure) Regulations, 2001.

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The 6^th respondent, has filed a counter affidavit in the writ petition. Relevant paragraphs of the counter affidavit reads thus:-

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“4. This respondent who is aged 70 years was residing with his wife who is aged 65 years in his property since 2006. The copy of the sale deed between the predecessor of the property and the 6^th respondent numbered as 1965/06 dated 29/11/2006, along with the English translation is produced herewith and marked herewith as Exhibit R6(1).

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It is most humbly submitted that, as per the Ext. R6(1) and as per the schedule and boundaries of the property clearly defines a pathway on the northern side of the property. This respondent and his family members including the predecessors of the property are using the said pathway on the northern side of the property for ingress and egress.

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This respondent from 2006 onwards, as well as his predecessors was using this pathway which was blocked by the petitioner and one Rejila. The property of the petitioner is situated is on the western side of the property of this respondent. The action of the petitioner due to the blockage of the pathway by the petitioner as well as the said Rejila had created and "LandLock" of the property in Exhibit R6 (1). This respondent had preferred a petition before the 2^nd respondent due to the same. This respondent also challenged the obstruction of the pathway by Rejila in O.S. No. 215/2014 before the Hon'ble Munsiff's Court, Ranni, Pathanamthitta.

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It is most respectfully submitted that, pursuant to this respondent filed the complaint before the Human Rights Commission and the 2^nd respondent had pronounced the Order

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which is marked as Exhibit P2. Later, based on Ext. P2, the 3^rd respondent directed the 4^th respondent to open the pathway with help of police which is marked as Exhibit P3. Exhibits P2 & P3 are under challenge.

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It is most respectfully submitted that, prior to Exhibit P2 and P3, the only pathway to the property to this respondent was blocked and prevented this respondent and his wife from ingress and egress to the property of this respondent. The property of this respondent was landlocked and there is no way to ingress and egress the property due to the illegal and arbitrary action of the petitioner.

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It is most respectfully submitted that the petitioner cannot take the shelter on the technicalities and procedure on the Protection of the Human Rights Act, 1993. This respondent was aggrieved under Section 4(iv) r/w. Section 7(b), 7(d) of the Protection of Civil Rights Act, 1955. The petitioner should approach this Court with clean hands. The petitioner had not approached this Hon'ble Court with clean hands. The action of the petitioner is purely illegal and arbitrary and violative of the Humanitarian Rights, Protection of Civil Rights Act and violation of Articles 21 & 300-A of the Constitution of India.

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It is an admitted fact that, the dispute is a civil dispute and violation of human rights, and the Protection of Civil Rights Act, 1955. Blocking of the existing pathway is clearly a violation of human rights and depriving the ingress and egress through the existing pathway and land locking the property is a violation of the human rights and violation of the Articles 21 and 300-A of the Constitution of India, a matter which was considered by the 2^nd respondent. This respondent does not have money power and

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muscle power to conduct a legal battle against the petitioner and hence approached the 2^nd respondent.”

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On this day, when the matter came up for further hearing, inviting attention of this Court to a Division Bench judgment in Mariyadas v. Revenue Divisional Officer [2020 (1) KLT 254] , in particular to paragraphs 18 to 20, Mr. V. Philip Mathews, learned counsel for the petitioner, submitted that the issue is squarely covered by the abovesaid decision, wherein, after analyzing the statutory provisions, in particular, Regulation 17(f) of the Kerala State Human Rights Commission (Procedure) Regulations, 2001, a Division Bench

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of this Court, held that disputes relating to pathway to a house being civil nature, is not maintainable, before the Commission.

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As regards the nature of dispute, Mr. V. Philip Mathews,

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learned counsel for the petitioner, also took this Court to paragraph 6 of the counter affidavit, wherein challenging the alleged obstruction of the pathway by one Rejila, the 6^th respondent has already filed a suit No. 215 of 2014 before the Munsiff's court, Ranni.

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He further submitted that though the said Rejila is not a party,

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to the instant complaint, the respondent having understood Regulation

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17(f) of the Kerala State Human Rights Commission (Procedure) Regulations, 2001, has instituted a suit before the civil court.

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Though in paragraph No. 9 of the counter affidavit, reference has been made to Section 4(iv) read with Section 7(b) and 7(d) of the Protection of Civil Rights Act, 1955, and contention has been made that the action of the writ petitioner was violative of the Protection of Human Rights Act, 1993, as well as the Protection of Civil Rights Act, 1955, and therefore violative of Articles 21 and 300-A of the Constitution of India, Mr. V. Philip Mathews, learned counsel for the petitioner, submitted that the Protection of Human Rights Act, 1993, deals with specific instances of violation, and that in the Kerala State Human Rights Commission (Procedure) Regulations, 2001, there is also exclusion of certain disputes to be adjudicated by the Human Rights Commission, as civil disputes, require evidence to establish any right. For the abovesaid reasons, he prayed to set aside Ext. P2 of the Order Kerala State Human Rights Commission in HRMP No. 6625/11/15/2019/PTA dated 16.03.2021 and Ext. P3 communication of the Tahsildar, Konni No. B8-3107/21 dated 04.05.2021.

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Mr. Ramesh P., learned counsel for the 6^th respondent, made

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submissions on the averments made in the counter affidavit.

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Mr. K. P. Harish, learned Senior Government Pleader,

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submitted that he has received a report from the concerned Village Administrative Officer, stating that usage of the pathway is being obstructed by the writ petitioner. He sought time for producing the report.

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Heard the learned counsel for the parties and perused the material available on record.

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On 05.07.2021, considering the grievance expressed in the writ petition, material on record and while granting interim stay of Ext. P2 order of the Kerala State Human Rights Commission dated 16.03.2021 and Ext. P3 communication of the Tahsildar dated 04.05.2021, we have extracted the above, and the same are reproduced:-

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“KERALA STATE HUMAN RIGHTS COMMISSION Present : V.K.Beenakumari

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H.R.M.P.No.6625/11/15/2019/PTA

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Complainant : Sr.K.K.Mani Kochuparampil„ Mankkayam Chittar P.O, Pathanamthitta

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Order dated 16th March, 2021

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The facts in the complaint is that the complainant who is earning his livelihood through cattle rearing has purchased a property in a place named Chittar Pambini (Chitar P.O) Vadakkekara muri, Kumaramperoor, Chittar Seethathodu Village, Chittar Panchayat. He was taking his cattle's through a way. But 6 months before one of his neighbour encroached into the Panchayat road and closed the way denying complainants right of way.

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A report was called for by the commission from the Tahsildhar, Konni Taluk in the matter. As per the said report "when the complainant - Sri.K.K.Mani purchased the property there was a pathway through the northern side of the property in east-west direction for entering into the property. The complainant, his family and his cattle's was walking through the said pathway. For the past several years the complainant was using a pathway which proceeds to east from his house. For past 3 years the complainant is not using the said pathway. One Smt.Rajeela who is residing on the southern side of the pathway raised some disputes with regard to the pathway and filed a case before the court. But the neighbours opened the way which was closed by Smt.Rajeela. When the above said way obstructed, one Mr.Valsarajan Thadathil who is residing on the northern side of the house of the complainant permitted him to walk through his property. Even though the neighbours opened the way which was obstructed the complainant and his family was reaching to the road through the property of Mr.Valsarajan. Gradually, the way which was mentioned in the deed and which was passing through the northern side of the property of Smt.Rajeela became nonexistent. Thereafter based on a court order Smt.Rajeela constructed a compound wall on the western

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side of her property and denied the right of access of the complainant and his family through the above said way. The pathway which leads to the western side of the road from the northern side of the house of the complainant was closed by Smt.Leelamma Maruthopathalil using a fence for the purpose of replanting of rubber trees in her properties and to prevent the cattle's destroying her cultivation. She assured that the fence will be removed after the rubber trees grow. The complainant agreed for the same. But even after 5 years after planting the rubber trees Smt.Leelamma has not opened the way. The owner of the pathway, Mr.Valsarajan through which the complainant was walking did not permit entry of women through that way during some timings as there some Pooja in his property during evening.

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The complainant and his family belong to schedule caste and they are extremely poor and they are leading a peaceful life. Presently the complainant and his family are not getting the support of the society. Though complainant's neighbours are willing to open the walkway by using force in favour of complainant, complainant stopped them and took a firm stand to take proper legal measures to open the walkway. This is the reason why the complainant and his family are not getting support of the society.

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This report has also been received by the Complainant. He informed during the camp sitting at Pathanamthitta on 0903-2021 that his demand is to open the walkway through proper legal way as stated in the report. In this circumstances commission directs Tahsildar Konni Taluk to open the walkway in favour of Complainant for freedom of movement. For that purpose Police Assistance can be sought for. Petition is closed with this direction.

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Copy of the order should be given to petitioner and Tahasildar,Konni Taluk

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Signature V.K.Beenakumari

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Member

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Kerala State Human Rights Commission” ************

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“Administrative language - Mother tongue

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No.B8-3107/21 Taluk office, konni-689691 Date 04.05.2021 Phone No.0468 2240087

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[email protected]

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Tahsildar Konni Village officer Chittar

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SUBJECT- Regarding the execution of Human Right Commission's order related to blockade of walkway. REFERENCE-

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Complaint of shri.K.K.Mani, Kochuparambil, Manakayam,Chittar.

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Kerala State Human Right Commission's order (HRMP.6625/19/PTA) dated 23.03.21.

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Report No (87/20) of that institution dated 09.03.2020.

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Based on the order (reference 2) Human Rights commission has directed to take steps for opening the walk way for freedom of movement in favour of petitioner in the complaint ( reference 1) given by Shri.K.K.Mani against the blockage of walkway with iron fencing from the north side of his house to west side by Leelamma, Maruthopathalil and also directed to take police protection if necessary for the execution of this order.

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Copy of the order is hereby affixed.

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Yours faithfully

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In the complaint and the orders passed thereon, the allegation of the 6^th respondent is that the pathway which leads to the western side of the road from the northern side of the house of the complainant / 6^th respondent, was closed by the writ petitioner, using a fence, for the purpose of replanting rubber trees in her property and to prevent the cattle destroying her cultivation.

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After considering the statutory provisions of the Protection of Human Rights Act, 1993, and the Kerala Human Rights Commission (Procedure) Regulations, 2001, a Division Bench of this Court in Mariyadas v. Revenue Divisional Officer [2020 (1) KLT 254] held that a complaint relating to pathway of a house being a civil dispute, the same is not maintainable, and that Kerala State Human

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Rights Commission ought to have dismissed the complaint in limine . Relevant portions of the judgment are as hereunder:-

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“11. Section 2(d) of the Protection of Human Rights Act, 1993 reads as follows:

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“2. Definitions .-(1) In this Act, unless the context otherwise requires.-

(a) xx xxxxx

(b) xx xxxxx

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(d) “human rights” means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.”

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Regulation 17 of the Kerala Human Rights Commission (Procedure) Regulations, 2001, which deals with maintainability of complaints before the Commission states thus:

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“ 17. Complaints not ordinarily maintainable .- The Commission may dismiss inlimine complaints of the following nature:

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(a) Illegible;

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(b) vague, anonymous or pseudonymous;

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(d) barred under sub-section (1) or (2) of

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section 36 of the Act;

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(e) allegations do not disclose involvement of any public servant;

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(f) issue raised relates to civil disputes, service matters, labour or industrial dispute;

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(g) allegations do not raise any violation of human rights;

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(h) If the mater raised is subjudice before a Court or Tribunal;

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(i) the matter is covered by a Judicial verdict/decision of the National Commission or a State Commission;

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(j) Where the complaint is only a copy of the petition addressed to some other authority.

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(k) Where the petition is not signed or where the original petition is not sent to the Commission;

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(l) Where the matter raised is outside the purview of the Commission or on any other ground.”

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Chapter III, Section 12 of the Protection of Human Rights Act, 1993, deals with functions of the Commission, which states clearly that the Commission may take complaints of the nature of violation of human rights or abatement thereof. Section 12 reads thus:

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“CHAPTER III

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FUNCTIONS AND POWERS OF THE COMMISSION

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12. Functions of the Commission :- The Commission shall perform all or any of the following functions, namely:-

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(a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf or on a direction or order of any court, into complaint of

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(I) violation of human rights or abetment thereof; or

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(ii) negligence in the prevention of such violation, by a public servant;

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(b) intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;

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(c) visit, notwithstanding anything contained in any other law for the time being in force, any jail or other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection, for the study of the living conditions of the inmates thereof and make recommendations thereon to the Government:

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(d) review the safeguards provided under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation;

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(e) review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures;

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(f) study treaties and other international instruments on human rights and make recommendations for their effective implementation;

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(g) undertake and promote research in the field of human rights;

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(h) spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means;

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(I) encourage the efforts of non-governmental organisations and institutions working in the field of human rights;

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(j) such other functions as it may consider necessary for the protection of human rights.”

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As per Regulation 17(f) of the Kerala State Human Rights Commission (Procedure) Regulation, 2001, Commission may dismiss inlimine, complaints where the issues raised relate to civil disputes, service matters, labour or industrial disputes.

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Complaint before the Human Rights Commission, which is primarily relating to a pathway to the house of the complainant, being a civil dispute, the same is not maintainable and the Kerala State Human Rights Commission ought to have dismissed the complaint in limine.

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Though Sri.Peter Jose Christo, learned counsel for the 2^nd respondent, contended that right to life, liberty, equality and dignity included the right to property, there is a specific exclusion in entertaining a complaint, where issue raised relates to civil dispute. Legislature has explicitly omitted civil disputes.”

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Though Mr. Ramesh P., learned counsel for the 6^th respondent, made submissions on the averments in the counter affidavit, and reiterated that the complaint for violation of property rights, would come within the ambit of Protection of Civil Rights Act, is maintainable before the Kerala State Human Rights Commission, we are of the view that in the light of the specific exclusion in Regulation 17(f) dealing with civil disputes, service matters, labour or industrial disputes and the decision of this Court in Mariyadas v. Revenue Divisional Officer [2020 (1) KLT 254] extracted supra, contentions of the learned counsel for the 6^th respondent cannot be countenanced.

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As regards the request of Mr. K. P. Harish, learned Senior Government Pleader, for production of the Village Administrative Officer's report, for the purpose of deciding this case, we are of the view that it is not necessary as this Court in detail has discussed and decided as in the foregoing paragraphs, to the jurisdiction of the

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Kerala State Human Rights Commission to adjudicate any civil dispute, which requires evidence to be adduced by the contesting parties.

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It is trite law that when evidence is required to be produced to adjudicate rights of the rival contentions, moreso in the nature of a civil dispute, the same cannot be entertained by the Commission, like any other complaint, not dealing with a civil dispute.

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As rightly contented by Mr. V. Philip Mathews, learned counsel for the writ petitioner, that when there was an obstruction alleged to have been caused by one Rejila, Mr. K. K. Mani, the 6^th respondent, knowing fully well that the matter is a civil dispute, has approached the court of competent jurisdiction, by filing a suit in O. S. No. 215 of 2014, but in respect of the very same allegation of obstruction of the pathway, in 2019, respondent has chosen to file a complaint, before the Commission.

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In the light of the above discussion and decisions stated supra, we are of the view that the complaint is not maintainable before the Kerala State Human Rights Commission, and therefore, Ext. P2 order of the Kerala State Human Rights Commission in HRMP No.

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6625/11/15/2019/PTA dated 16.03.2021, and Ext. P3 communication

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of the Tahsildar, Konni, addressed to the Village Officer, Chittar dated

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04.05.2021, are liable to be set aside. Accordingly, set aside.

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Writ petition is allowed.

Sd/-

S. MANIKUMAR

CHIEF JUSTICE

Sd/-

SHAJI P. CHALY

JUDGE

///TRUE COPY///

P. A. TO JUDGE

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APPENDIX OF WP(C) 13288/2021

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PETITIONER EXHIBITS Exhibit P1 COPY OF LAND TAX RECEIPT DATED 17.06.2020. Exhibit P1 A ENGLISH TRANSLATION OF EXHIBIT P1. Exhibit P 2 COPY OF THE ORDER DATED 16.03.2021 PASSED BY THE SECOND RESPONDENT IN HRMP NO.6625/11/15/2019 PTA. Exhibit P2 A ENGLISH TRANSLATION OF EXHIBIT P2. Exhibit P3 COPY OF COMMUNICATION NO.B8-3107/21 DATED 04.05.2021 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT. Exhibit P3A ENGLISH TRANSLATION OF EXHIBIT P3.

Leelamma Rajan @ Sosamma, v. State of Kerala

Case brief

What is this about?

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Leelamma Rajan @ Sosamma, v. State of Kerala

Case brief

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What did the court decide?

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