Kerala High Court
Thanima Cultural Society vs District Collector on 4 January, 2011
Author: C.T. Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 36178 of 2003(F)
1. THANIMA CULTURAL SOCIETY
... Petitioner
Vs
1. DISTRICT COLLECTOR
... Respondent
For Petitioner :SRI.P.VINODKUMAR
For Respondent :SRI.VINCENT JOSEPH
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :04/01/2011
O R D E R
C.T. RAVIKUMAR, J.
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W.P.(C). NO.36178 OF 2003
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Dated this the 4th day of January, 2011
JUDGMENT
The petitioner is a society registered under the Travancore- Cochin Literary Scientific and Charitable Societies Registration Act, 1955 with registration No.A 31/91. According to the petitioner, the office of the society has been functioning in the property comprised in re-survey No.116/9 of the Venmony village, Alappuzha for the past several years. The contention of the petitioner-society is that the said property belongs to the Government. In the circumstances, the petitioner-society moved Ext.P1 application under Rule 24 of the Kerala Land Assignment Rules before the first respondent with a prayer to assign an extent of 2 cents of land to the society. Thereafter, the petitioner-society constructed a small shed within the 2 cents comprised in the said re-survey number for the purpose of housing a library and a reading room. This Writ Petition has been filed on being aggrieved by Ext.P4 notice. As per Ext.P4, the third respondent demanded payment of Rs.2,000/- for the purpose of compensating the loss incurred by the panchayath. The contention of the petitioner-society is that Ext.P4 is unsustainable on the ground that there is W.P.(C) NO.36178/2003 2 no provision under the Kerala Panchayath Raj Act enabling the third respondent to issue Ext.P4 inasmuch as the property has not been vested with the panchayath. According to the petitioner, the property in question vests with the Government and therefore, if at all there is an illegal encroachment, only respondents1 and 2 can take legal action to evict the encroacher. It is further contended that since Ext.P1 application filed under Rule 24 of of the Kerala Land Assignment Rules is pending before the first respondent, the third respondent should not have issued Ext.P2 notice requiring the petitioner to demolish construction effected in the aforesaid plot of land. Yet another contention is that Ext.P3 objection submitted pursuant to the receipt of Ext.P2 was not at all considered prior to the issuance of Ext.P4. In short, according to the petitioner, the action on the part of the third respondent in issuing Ext.P4 is wholly without jurisdiction and therefore, liable to be set aside.
2. A counter affidavit has been filed on behalf of the first respondent. It is stated thereunder that the functional area of the petitioner-society is Thazhathumpalam Ward in Venmony Village and at any rate, the office of the society is not functioning in re-survey No.116/9 of Venmony village. It is further stated that an extent of 6.4 Ares of land W.P.(C) NO.36178/2003 3 including the plot in question originally belonged to the Revenue Department. Later, the same was handed over to the Agriculture Department as per G.O(MS) No.370/98 dated 2.7.1998. Thereafter, Venmony Krishy Bhavan is functioning in the building situated in the aforesaid property. On 11.10.2003, the office bearers of the petitioner- society trespassed into the aforesaid government land and constructed a shed thereon. Thereupon, they were evicted from the encroached property. It was only thereafter that the petitioner-society preferred Ext.P1 application. The mere submission of Ext.P1 application would not confer any right on the petitioner to occupy the government land. Subsequently, the office bearers of the petitioner-society destroyed the notice board of Venmony Grama Panchayath installed in the aforesaid property and constructed a shed and put up a board there. On coming to know about the illegal trespass, the Secretary of the Venmony Grama Panchayath issued Ext.P2 notice to the Secretary of the petitioner -society on 13.10.2003 to remove the shed as also the notice board. Subsequently, the panchayath demolished the shed and removed the notice board put up in the above mentioned property. It is further stated in the counter affidavit that at present, the property in question is in possession and enjoyment of the W.P.(C) NO.36178/2003 4 panchayath. After taking the possession of the aforesaid property, Ext.P4 has been issued to the petitioner-society imposing a fine of Rs.500/- and also demanding an amount of Rs.1500/- towards the expenses incurred for removing the illegal encroachment. It is to be noted that in paragraph 8 of the counter affidavit filed by the first respondent, it has been stated that the property in question has been vested with the panchayath and therefore, the action on the part of the third respondent in issuing Ext.P2 as also Ext.P4 is perfectly legal. It is the right and duty of the third respondent to take action against the illegal encroachment and that alone was done by the third respondent, it is contended.
3. Evidently, the petitioner did not have a case that the petitioner society got any right over the property in question. According to them, it is government land and therefore, action can be taken only by respondents 1 and 2. As noticed hereinbefore, in the counter affidavit, the first respondent has categorically stated that the land in question vested with the panchayath. No material has been produced to controvert the same and to show that it did not vest with the panchayath. In the circumstances, the petitioner cannot be heard to contend that the panchayath did not have right over the property in question. Once it is found that the property in W.P.(C) NO.36178/2003 5 question is vested with the panchayath, the petitioner-society cannot successfully challenge the proceedings issued by the third respondent for removing illegal encroachment. The Writ Petition is devoid of any merit and accordingly, it is dismissed.
(C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.36178/2003 6 C.T. RAVIKUMAR, J.
JUDGMENT September, 2010 W.P.(C) NO.36178/2003 7