Partly allowed

M.T.Phalgunan v. the District Collector

Kerala HC29 Mar 2021WP(C)/4047/2012

Case brief

AI extract

What is this about?

In a writ petition where the petitioner alleged the Government failed to act on his request to vacate an Anganwadi built on his land, the Court held it could not adjudicate the factual dispute over land surrender. The writ was allowed in part, directing the Director of Social Welfare to consider the petitioner's representation within six months.

What did the court decide?

The writ petition is allowed in part; the 2nd respondent is directed to consider Ext.P4 and pass appropriate orders within six months.

M.T.Phalgunan Vs the District Collector — Kerala HC (2021) — LawSathi Research

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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 BECHU KURIAN THOMAS

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MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943

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WP(C).No.4047 OF 2012(E)

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PETITIONER :

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M.T.PHALGUNAN, AGED 62 YEARS, S/O.THANKAPPAN, MARAYKARUPARAMBIL, THOPPIL, PURAKKAD, NOW RESIDING AT THOPIL(H), THOTTAPPALLY, P.O.AMBALAPUZHA, ALAPPUZHA DISTRICT, PIN – 688 563.

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BY ADVS. SRI.K.C.ELDHO SRI.JIJO THOMAS

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RESPONDENTS :

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1 THE DISTRICT COLLECTOR, ALAPPUZHA, PIN – 688 001.

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2 THE DIRECTOR OF SOCIAL WELFARE, DIRECTORATE OF SOCIAL WELFARE, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN – 695 001.

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3 CHILD DEVELOPMENT PROJECT OFFICER, INTEGRATED CHILD DEVELOPMENT SCHEME AMBALAPUZHA

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PROJECT, ALAPPUZHA, PIN – 688 004.

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4 REVENUE DISTRICT OFFICER ALAPPUZHA, PIN – 688 001.

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BY SR.GOVERNMENT PLEADER SRI.MATHEW GEORGE VADAKKEL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :

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WP(C).No.4047 OF 2012(E)

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JUDGMENT

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Dated this the 29th day of March 2021

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In this writ petition, a direction is sought to take a decision

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on Ext.P4 in a time bound manner and also to shift the Anganwadi functioning in the property covered by Ext.P1.

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Petitioner contends that he is the owner of 2 cents of land in Survey No.275/6 of Purakkad village obtained as per Ext.P1 assignment deed. It is contended that a building for housing an anganwadi was constructed by the Government in the property with the permission of the petitioner even though petitioner had not relinquished the property and the same continued to function in the said building, but in 2011 when petitioner requested the respondents to vacate the building, they turned a deaf ear to his request. A representation was submitted by the petitioner to the respondents in 2011 requesting them to make arrangements to shift the anganwadi from the premises. In spite of these requests, Ext.P4 has not been considered and it was in such circumstances that this writ petition was filed.

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A counter affidavit has been filed by the 3^rd respondent contending that the property was voluntarily surrendered by the

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WP(C).No.4047 OF 2012(E)

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petitioner to the Government for construction of an anganwadi building and that on the basis of the relinquishment letter and the consent given by the petitioner, a proper building was constructed utilising the Government funds and that the anganwadi started functioning in the said building in 1997. It is reiterated that the petitioner had relinquished the 2 cents of land to the Social Welfare Department in the year 1993 for construction of the anganwadi building. Counter affidavit further averred that the intention behind the petitioner surrendering the land for constructing the anganwadi building was to enable a transfer for petitioner's wife to a nearby place and that in fact she was transferred to an anganwadi much closer to her residence where she continued to work till 2011. According to them, since the services of the petitioner's wife was not extended beyond six months after retirement, petitioner became inimical to the Department which resulted in this writ petition.

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The facts narrated above clearly gives rise to a dispute as to whether petitioner had relinquished his 2 cents of land over which the Government had constructed the building for housing the anganwadi. This Court cannot decide such a factual dispute in exercise of the jurisdiction under Article 226 of the Constitution of India. The remedy of the petitioner lies elsewhere. As a matter of

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WP(C).No.4047 OF 2012(E)

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fact, the reliefs claimed for is also only for a direction to consider Ext.P4.

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The learned counsel for the petitioner invited my

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attention to Ext.P4, which is a letter dated 22.11.2011 filed by the petitioner before the respondents and pleaded for a direction to consider the same. It is seen from the postal receipt and the acknowledgment card produced as Exts.P5 and P6 that the said representation had been received by the respondents.

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In the circumstances of the case, I am of the view that interest of justice will be served by directing the 2^nd respondent – Director of Social Welfare to consider and pass appropriate orders, in accordance with law, on Ext.P4, within a period of six months from the date of receipt of a copy of this judgment. Needless to state, I have not considered anything on the merits of the case and the same is left to be considered in any appropriate proceedings which the petitioner chooses to initiate.

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The writ petition is allowed in part, as above.

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Sd/- BECHU KURIAN THOMAS, JUDGE

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RKM

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WP(C).No.4047 OF 2012(E)

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APPENDIX

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PETITIONER'S EXHIBITS :

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P1 : COPY OF THE PATTA NO.LA 217 OF 1985 ISSUED TO THE PETITIONER.

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P2 : COPY OF THE REVOCATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

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P3 : COPY OF THE ACKNOWLEDGMENT CARD SHOWING THE ACKNOWLEDGMENT OF EXT.P2.

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P4 : COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 22.11.2011.

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P5 : COPY OF THE POSTAL RECEIPT DATED 23.11.2011.

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P6 : THE ACKNOWLEDGMENT CARD SHOWING THE RECEIPT OF EXT.P4 BY THE 1ST RESPONDENT.

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P7 : THE ACKNOWLEDGMENT CARD SHOWING THE RECEIPT OF EXT.P4 BY THE 2ND RESPONDENT.

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P8 : THE ACKNOWLEDGMENT CARD SHOWING THE RECEIPT OF EXT.P4 BY THE 4TH RESPONDENT.

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P9 : COPY OF THE ORDER IN W.P.(C).NO.13019 OF 2011 OF THIS HON'BLE COURT.

M.T.Phalgunan v. the District Collector

Case brief

What is this about?

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M.T.Phalgunan v. the District Collector

Case brief

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