Kerala High Court
Ponnamma vs State Of Kerala on 3 May, 2019
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 03RD DAY OF MAY 2019 / 13TH VAISAKHA, 1941
WP(C).No. 22904 of 2016
PETITIONER/S:
1 PONNAMMA
W/O.LATE PURUSHOTHAMAN, PADINJAREKUTT (H),
VADAKKEMURI VILLAGE, VAIKOM TALUK, AKKARAPADAM
P.O., KOTTAYAM DISTRICT, PIN - 686 143.
2 DAISON
S/O.LATE PURUSHOTHAMAN, PADINJAREKUTT (H),
VADAKKEMURI VILLAGE, VAIKOM TALUK, AKKARAPADAM
P.O., KOTTAYAM DISTRICT, PIN - 686 143.
BY ADVS.
SRI.P.M.NATESAN
SRI.P.N.SASIDHARAN
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF
REVENUE, GOVT.SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695 001.
2 REVENUE DIVISIONAL OFFICER
OFFICE OF THE REVENUE DIVISIONAL OFFICER, PALA,
KOTTAYAM DISTRICT.
3 P.K.REMA
W/O.VINOD, OFFICE PARAMBIL HOUSE, AKKARAPADAM
P.O., PIN - 686 143, KOTTAYAM DISTRICT.
4 D.SAMBASIVAN
THARAYIL HOUSE, AKKARAPADAM P.O., PIN - 686
143, KOTTAYAM DISTRICT.
5 VINOD
OFFICE PARAMBIL HOUSE, AKKARAPADAM P.O., PIN -
686 143, KOTTAYAM DISTRICT.
W.P.(C) Nos.22904/2016 & 34353/2017
2
6 SARADA NARAYANAN
OFFICE PARAMBIL HOUSE, AKKARAPADAM P.O., PIN -
686 143, KOTTAYAM DISTRICT.
7 MATHEW M.M.
S/O.MATHACHAN, MANIPADATHU HOUSE, UDAYANAPURAM
P.O., VAIKOM, KOTTAYAM DISTRICT, PIN - 686 143.
*ADDL. 8 JOBY JOSEPH
S/O OUSEPH JOSEPH, MAPPALAPARAMPIL,
AKKARAPADAM, VAIKOM-686143.
BY ADVS.
SRI.GIGIMON ISSAC
SRI.V.S.CHANDRASEKHARAN
SMT.G.KAVITHA
SMT.LEKSHMI SWAMINATHAN
SMT.MARIAN G.M.THARAKAN
SRI.M.V.DAS
SRI.N.K.RAMACHANDRAN
SRI.S.JAMAL
SRI.S.JAYAKUMAR
OTHER PRESENT:
GP ARAVINDA KUMAR BABU T.K.
*ADDL.8TH RESPONDENT WAS IMPLEADED AS PER ORDER DATED
11.12.2017 IN I.A.NO.19965/2017.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
14.02.2019, ALONG WITH WP(C).34353/2017, THE COURT ON
3.5.2019 DELIVERED THE FOLLOWING:
W.P.(C) Nos.22904/2016 & 34353/2017
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 03RD DAY OF MAY 2019 / 13TH VAISAKHA, 1941
WP(C).No. 34353 of 2017
PETITIONER/S:
1 PONNAMMA
W/O.LATE PURUSHOTHAMAN, AGED 70 YEARS,
PADINJAREKUTTU, AKKARAPPADAM P O, VADAKKE MURI
VILLAGE, VAIKOM, PIN 686143.
2 DARVIN
S/O.LATE PURUSHOTHAMAN, AGED 41 YEARS,
PADINJAREKUTTU, AKKARAPPADAM P O,VADAKKE MURI
VILLAGE, VAIKOM, PIN 686143.
3 DAISON
S/O.LATE PURUSHOTHAMAN, AGED 40 YEARS,
PADINJAREKUTTU, AKKARAPPADAM P O,VADAKKE MURI
VILLAGE, VAIKOM, PIN 686143.
4 SHYAM RAJ
S/O.LATE RAJAPPAN, AGED 40 YEARS,.
PADINJAREKUTTU, AKKARAPPADAM P O,VADAKKE MURI
VILLAGE, VAIKOM, PIN 686143.
BY ADVS.
SRI.BOBBY MATHEW KOOTHATTUKULAM
SMT.GIA MATHAI KANDATHIL
SRI.A.U.HRISHIKESH
SRI.G.DEVAPAL
SRI.P.M.NATESAN
W.P.(C) Nos.22904/2016 & 34353/2017
4
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF REVENUE, SECRETARIAT,
THIRUVANANTHAPURAM,PIN 695001
2 THE DISTRICT COLLECTOR
KOTTAYAM, CIVIL STATION, KOTTAYAM, PIN 686001
3 THE TALUK SURVEYOR
VAIKOM TALUK, VAIKOM, PIN 686141
4 THE VILLAGE OFFICER
VADAKKEMURI VILLAGE, VAIKOM, PIN 686141
5 UDAYANAPURAM GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY,UDAYANAPURAM,
VAIKOM, PIN 686148
6 THE PRESIDENT
UDAYANAPURAM GRAMA PANCHAYATH,UDAYANAPURAM, PIN
686148
7 MATHEW M M
S/O.MATHACHAN,MANIPADATHU, UDAYANAPURAM,P O
VAIKOM, PIN 686143.
BY ADVS.
GOVERNMENT PLEADER
SMT.R.ANJALI
SRI.V.S.CHANDRASEKHARAN
SMT.LEKSHMI SWAMINATHAN
SMT.MARIAN G.M.THARAKAN
SRI.ADITYA THEJUS KRISHNAN
SRI.M.V.DAS
SRI.R.RAJESH (VARKALA)
SRI.S.JAYAKUMAR
SRI.S.RADHAKRISHNAN
SRI.S.RAJ MOHAN
GP ARAVINDA KUMAR BABU T.K.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
14.2.2019, ALONG WITH WP(C).22904/2016, THE COURT ON
3.5.2019 DELIVERED THE FOLLOWING:
W.P.(C) Nos.22904/2016 & 34353/2017
5
JUDGMENT
The issue involved in the writ petitions being intrinsically connected, they were heard together. W.P.(C) No.22904 of 2016 is filed challenging Ext.P5 order issued by the second respondent, by which permission is granted to the Udayanapuram Grama Panchayat for drawing pipeline through the pathway starting from the Koottummal Kadavu - Health Centre Road and passing through the properties of the petitioners and the seventh respondent. The averments in the writ petition are as follows:
The petitioners are the legal heirs of one Purushothaman, who was the owner of an extent of 31 cents of property in Kulasekharamangalm Village. Purshothaman had purchased the property under document No.717/2003 of SRO, Vaikom. Purushothaman died on 22.4.2007 and W.P.(C) Nos.22904/2016 & 34353/2017 6 thereupon, the property devolved on the petitioners and Darvin, who are the legal heirs of Purushothaman. The first petitioner is the wife and the second petitioner and Darvin are the sons of Purushothaman. The 7 th respondent, with intention to secure road access to his property, which is lying on the southern portion of the property of the petitioners, attempted to cut open a way through the property of the petitioners and thereupon, the petitioners filed O.S.No.222 of 2013 before the Munsiff's Court, Vaikom, wherein the court passed Ext.P3 temporary injunction order, restraining the 7 th respondent from cutting open a new way through the property of the petitioners and from committing any mischief therein. With intention to bypass Ext.P3 injunction order, the 7th respondent, in collusion with the third respondent, a former member of Udayanampuram Grama Panchayat, filed a complaint before the District Collector, Kottayam, alleging that the petitioners were preventing the drawing of pipeline W.P.(C) Nos.22904/2016 & 34353/2017 7 through a public pathway passing through their property. After obtaining report from the Village Officer and issuing notice to all concerned, the second respondent, to whom the complaint was forwarded by the District Collector, issued Ext.P5 order. According to the petitioners, the order was passed without providing them with a copy of the complaint and sufficient opportunity to put forward their case. Hence, the petitioners seek to quash Ext.P5 by issuing a writ of certiorari.
2. The third respondent filed a counter affidavit contending that the writ petition is not maintainable and that the pathway in question, portion of which alone passes through the property of the petitioners, has been in existence for more than 50 years as a public pathway. It is contended that there is no drinking water facility to the families residing on either side of the pathway and that the Udayanapuram Grama Panchayat had taken a decision to provide drinking W.P.(C) Nos.22904/2016 & 34353/2017 8 water to the residents on either side of the pathway, by drawing pipeline through the existing pathway and that there was no attempt from either the 7th respondent or any other person to cut open a new pathway through the property of the petitioners. It is contended that the petitioners have no right to prevent the Panchayat from providing basic amenity to the residents by supplying drinking water through a pipeline to be drawn through an existing public pathway.
3. A detailed counter affidavit has been filed by the 7 th respondent refuting the allegations in the writ petition and contending that he had purchased 5 cents of land from Kusumakumary, who is none other than the sister of Purushothaman, as per Ext.R2 Sale Deed No.1272/2013 of Vaikom SRO. The 7th respondent, acceding to the request of the residents on either side of the pathway starting from Koottummal Kadavu - Heath Centre Road, had surrendered the 5 cents belonging to him to the Udayanapuram Grama W.P.(C) Nos.22904/2016 & 34353/2017 9 Panchayat for the purpose of drawing of pipeline and construction of road. After filing the counter affidavit, the 7 th respondent produced Ext.R3, evidencing allotment of funds by the Kerala Water Authority for drawing of 143 metres pipeline through the pathway. Ext.R4 is the judgment in O.S.No.222 of 2013 filed by the petitioners along with Darvin. By Ext.R4 judgment, the Munsiff's Court, Vaikom dismissed the suit filed by the petitioners finding that the plaintiffs have no consistency with respect to the apprehension and cause of action alleged in the plaint and that the evidence adduced does not tally with the plaint averments with respect to the cause of action. It is hence contended by the 7 th respondent that the factual disputes attempted to be canvassed in the writ petition having been considered and rejected by the competent civil court, the writ petition is liable to be dismissed.
4. The additional 8th respondent, who is also a W.P.(C) Nos.22904/2016 & 34353/2017 10 beneficiary of the drinking water project has filed counter affidavit pointing out that the pathway portion within the petitioners' property was sold by them to one Pious Mathew and that the said person had no objection to the drawing of pipeline through the property purchased by him.
5. A reply affidavit is filed by the petitioners reiterating their contentions and further admitting the fact that the pathway portion was sold to Pious Mathew, but on condition that the pathway would continue to belong to the petitioners and that no person other than Pious Mathew and his family members would have any right over the pathway.
6. W.P.(C) No.34353 of 2017 is filed by the petitioners in W.P.(C) No.22904 of 2016 along with Darvin, the other son of Late Purushothaman and Shyam Raj, S/o.Late Rajappan, who is the younger brother of late Purushothaman. Similar contention with respect to the pathway, as has been raised in W.P.(C) No.22904 of 2016, is raised in this writ petition also. W.P.(C) Nos.22904/2016 & 34353/2017 11 Further, it is contended that during the pendency of the earlier writ petition, the petitioners were served with notices issued by the Taluk Surveyor proposing to measure and demarcate the 5 cents of land belonging to the 7th respondent comprised in Sy.No.131/17 of Vadakkemuri Village, lying adjacent to the properties of the petitioners. It is contended that on receipt of the notices, the petitioners made enquiries and came to know that the 7th respondent had surrendered his property to the Udayanapuram Grama Panchayat with the mala fide intention of causing the Panchayat to construct a road through his property and the property of the petitioners. It is contended that any such construction would be in violation of the provisions of the Kerala Conservation of Paddy Land and Wetland Act and the Rules thereunder. The relief sought in the writ petition is for the issue of a writ of mandamus directing the Udayanapuram Grama Panchayat and its President not to construct any road through the properties of the petitioners W.P.(C) Nos.22904/2016 & 34353/2017 12 and the 7th respondent by reclaiming the public water channels therein and through the marshy and fen lands in the area.
7. The third respondent Taluk Surveyor has filed counter affidavit wherein it is stated that the 7 th respondent had submitted an application before the Panchayat expressing willingness to surrender his property to the Udayanapuram Grama Panchayat for the purpose of construction of a road. The Panchayat in turn had applied before the RDO, Pala seeking to obtain permission for the relinquishment. Based on the said request, the RDO, had, through the Tahasildar, Vaikom directed the Taluk Surveyor to survey and demarcate the property proposed to be surrendered. It was in pursuance to the said direction that Exts.P7 and P8 notices were issued to the adjacent property owners including the petitioners. In the wake of objections raised by the petitioners, against the proposed measurement, the Tahasildar Vaikom conducted a W.P.(C) Nos.22904/2016 & 34353/2017 13 hearing and directed the Taluk Surveyor to issue fresh notice of survey to all persons concerned. Thereupon, another notice was issued and the property of the 5th respondent was measured and demarcated. With respect to the contention regarding the existence of water channel on the boundary of the petitioners and the 7th respondent, the Taluk Surveyor submitted that there is a channel (small thodu) at the common boundary of the property of the 7th respondent and the petitioners and that a portion of the said thodu has been reclaimed by Purushan, the predecessor-in-interest of the petitioners and sold to John Mathew and others for the construction of a road and that after construction, the said road is being used for vehicular traffic.
8. The 7th respondent has filed a counter affidavit reiterating the contentions raised in his counter affidavit in W.P.(C) No.22904 of 2016. In the counter affidavit filed on behalf of the Udayanapuram Grama Panchayat and its W.P.(C) Nos.22904/2016 & 34353/2017 14 President, it is submitted that the 7 th respondent had submitted an application expressing willingness to relinquish 02.02 Ares of land (5 cents) in Sy.No.131/17 of Vadakkemuri Village to the Udayanapuram Grama Panchayat. That, the Panchayat had, as per the decision of its Committee dated 25.5.2017, submitted an application before the RDO, Pala to make necessary changes in the land records and to include the said property in the land register of the Panchayat. It is submitted that the proposed road, viz; Akkarapadam- Vaippunna Temple Road is to be formed by widening and extending the existing pathway since the pathway is being used by large number of residents including aged persons, patients, students and devotees of Vaippunna Temple. It is submitted that the Panchayat has no proposal or project at present for construction of road in any part of the property of the 7th respondent, since possession of the said land will vest with the Panchayat only when the procedure pending before W.P.(C) Nos.22904/2016 & 34353/2017 15 the RDO, Pala is completed. That, after the procedure of land relinquishment is completed, steps will be taken for its further development for the benefit of the general public, by extending electric and drinking water connections and other infrastructure facilities to the beneficiaries of the road, subject to the decision of the Panchayat. It is stated explicitly in the counter affidavit that the Panchayat has no intention to construct any road by reclaiming any thodu (canal) as alleged by the petitioners and that the Pachayat will construct the road only in accordance with law, that too after getting sufficient land surrendered to the Panchayat by the land owners.
9. I heard the arguments advanced by Sri.Bobby Mathew Koothattukulam, the learned counsel for the petitioners and Sri.V.S.Chandrasekharan, the learned counsel for the 7th respondent, Sri.S.Jamal, the learned counsel appearing for the additional 8th respondent in W.P.(C) W.P.(C) Nos.22904/2016 & 34353/2017 16 No.22904 of 2016, Sri.S.Rajmohan, the learned Standing Counsel for the Udayanapuram Grama Panchayat and Sri.Aravinda Kumar Babu, the learned Senior Government Pleader.
10. The learned counsel for the petitioners addressed extensive arguments based on the factual disputes, which were the subject matter of O.S.No.222 of 2013. In support of the arguments, reliance is placed on the contention raised by the 7th respondent in his written statement and his deposition in the suit, in his capacity as the first defendant. Reliance is also placed on the deposition of the Taluk Surveyor, in order to prove the existence of a water channel at the boundary of the properties of the petitioners and the 7th respondent. In the light of the undisputed fact that O.S.No.222 of 2013 stands dismissed by Ext.R4 judgment dated 27.6.2017, I am of the considered opinion that the petitioners cannot rely on the contentions and the depositions in the suit, in support of the W.P.(C) Nos.22904/2016 & 34353/2017 17 relief sought in these writ petitions. Then the essential issue to be considered in W.P.(C) No.22904 of 2016 is regarding the extent to which Ext.P5 order can be subjected to judicial review, in exercise of the power under Article 226 of the Constitution of India. While considering that issue, it may be pertinent to refer to Chapter X of the Code of Criminal Procedure which confers power on Executive Magistrates to issue orders for retaining public order and tranquillity. Section 133 empower the Executive Magistrate to remove any unlawful obstruction or nuisance from any public place or from any river or channel which is or may be lawfully used by the public. Though not specifically stated, Ext.P4 notice was issued in purported exercise of the power under Section 133 on receipt of the complaint that the petitioners were obstructing the drawing of pipeline through the public pathway passing through their property. On receipt of the notice, petitioners appeared before the Executive Magistrate W.P.(C) Nos.22904/2016 & 34353/2017 18 and after hearing the petitioners, it was found that the petitioners were not able to substantiate, with the support of reliable evidence, their denial of public right. Thereupon the RDO proceeded to pass Ext.P5 order. Even in Ext.P5 order, the RDO has specified that the permission granted to the Udayanapuram Grama Panchayat for drawing pipeline is subject to the final decision in O.S.No.222 of 2013. Of course, the procedure followed by the RDO may not have been in strict compliance of the requirements under Sections 137 and 138 of the Code of Criminal Procedure. But, any challenge against Ext.P5 on that ground can only be made in a criminal revision petition filed either before the Sessions Court or this Court. From the pleadings it is evident that the drawing of the pipeline through the pathway in question is for the larger benefit of the public who have no means for obtaining potable drinking water at present, other than by collecting and carrying water from faraway places. Hence, I reject the W.P.(C) Nos.22904/2016 & 34353/2017 19 challenge against Ext.P5 at the instance of the petitioners, who, through the writ petition, is trying to establish their exclusive proprietary right, especially in view of the dismissal of the suit filed by the petitioners for similar relief, by the competent civil court.
11. As far as W.P.(C) No.34353 of 2017 is concerned, the relief sought is for a permanent prohibitory injunction against the Udayanapuram Grama Panchayat and its President from constructing any road through the properties of the petitioners and the 7th respondent by reclaiming the public water channel therein and through the marshy and fen lands in the area. As such, the remedy of the petitioners is to approach the competent civil court, rather than approaching this Court, bypassing the procedure prescribed under Section 80 of the Code of Civil Procedure. Even otherwise, notice issued by the Taluk Surveyor in connection with the survey, measurement and demarcation of boundaries of the property W.P.(C) Nos.22904/2016 & 34353/2017 20 proposed to be surrendered by the 7th respondent, does not give rise to any cause of action as far as the petitioners are concerned. From the counter affidavit filed by the Taluk Surveyor, it is evident that such survey, measurement and demarcation has been completed. If the petitioners have any grievance with respect to the measurement and demarcation of the property of the 7th respondent surrendered to the Panchayat, their remedy lies in approaching the authority prescribed under the Survey and Boundaries Act. Moreover, in the light of the submission made on behalf of the Udyanapuram Grama Panchayat that, at present, the Panchayat has no project for construction of road in any part of the property surrendered by the 7th respondent and that the Panchayat will construct the road only in accordance with law, after getting sufficient land surrendered to the Panchayat by the land owners, the apprehension of the petitioners is misplaced, or rather misconceived. Therefore, the petitioners W.P.(C) Nos.22904/2016 & 34353/2017 21 are not entitled for any relief in W.P.(C) No.34353 of 2017 also.
In the result, W.P.(C) No.22904 of 2016 and W.P.(C) No.34353 of 2017 are dismissed.
Sd/-
V.G.ARUN JUDGE Scl/ W.P.(C) Nos.22904/2016 & 34353/2017 22 APPENDIX OF WP(C) 22904/2016 PETITIONER'S/S EXHIBITS:
P1 TRUE COPY OF THE SALE DEED BEARING
NO.717/2003 SRO VAIKOM IN FAVOUR OF
PURUSHOTHAMAN.
P2 TRUE COPY OF THE PLAINT IN O.S.NO.222
OF 2013 OF THE MUNSIFF'S COURT, VAIKOM.
P3 TRUE COPY OF THE INJUNCTION ORDER DATED
03.09.2013 IN O.S.NO. 222/13 OF
MUNSIFF'S COURT, VAIKOM.
P4 TRUE COPY OF THE NOTICE BEARING
NO.L5/2749/15 DATED 24.02.16 ISSUED TO
PETITIONER BY R2.
P5 TRUE COPY OF THE ORDER BEARING NO.L5-
2749/15 DATED 13.06.2016 ISSUED BY THE
2ND RESPONDENT.
RESPONDENT'S EXHIBITS:
R1: COPY OF SALE DEED NO.718/2003 OF SRO, VAIKKOM. R2: TRUE COPY OF SALE DEED NO.1272/2013 OF SRO, VAIKOM. R3: COPY OF OF THE KWA FUND ALLOTMENT AND DESCRIPTION OF WORK WITH COST.
R4: TRUE COPY OF JUDGMENT IN O.S.NO.222/2013. R5: TRUE COP OF DECREE IN O.S.NO.222/2013.
R6: TRUE COPY OF THE LETTER ISSUED BY TALUK SURVEYOR. W.P.(C) Nos.22904/2016 & 34353/2017 23 R7: TRUE COPY OF THE SKETCH AND PLAN OF PLAINT SCHEDULE PROPERTY IN O.S.NO.222/2013.
R8: TRUE COPY OF THE LETTER ISSUED BY PANCHAYAT SECRETARY UDAYANAMPURAM IN FAVOUR OF RDO.
R9: TRUE COPY OF THE LETTER ISSUED BY RDO IN FAVOUR OF TAHASILDAR.
R10: TRUE COPY OF THE APPLICATION FOR SURRENDERING LAND BY RESPONDENT.
R11: TRUE COPY OF THE DECISION TAKEN BY THE UDAYANAMPURAM PANCHAYAT ON 25.5.2017.
W.P.(C) Nos.22904/2016 & 34353/2017 24 APPENDIX OF WP(C) 34353/2017 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SALE DEED NO 717 OF 2003 OF THE SUB REGISTRY OFFICE VAIKOM DTD 15/3/2003 EXHIBIT P2 TRUE COPY OF THE SALE DEED FOR RIGHT OF WAY BEARING NO 718/2003 OF THE SRO VAIKOM EXHIBIT P3 TRUE COPY OF THE SALE DEED NO 1272 OF 2013 OF THE SUB REGISTRY OFFICE, VAIKOM EXHIBIT P4 O.S.NO.222/2013 FILED BEFORE THE MUNSIFFS COURT, VAIKOM EXHIBIT P5 TRUE COPY OF THE WRITTEN STATEMENT FILED IN EXT P4 SUIT EXHIBIT P6 TRUE COPY OF THE DEPOSITION OF THE 7TH RESPONDENT IN EXT P4 SUIT EXHIBIT P7 TRUE COPY OF THE NOTICE DTD NIL ISSUED BY THE 3RD RESPONDENT TO THE FIRST PETITIONER EXHIBIT P8 TRUE COPY OF THE NOTICE DTD NIL ISSUED BY THE 3RD RESPONDENT TO THE 4TH PETITIONER EXHIBIT P9 TRUE COPY OF THE REPLY LETTER DTD 25/9/2017 TO EXHIBIT P8 NOTICE SUBMITTED BY THE IST PETITIONER EXHIBIT P10 TRUE COPY OF THE DEPOSITION OF THE TALUK SURVEYOR IN EXT P4 SUIT.