Kerala High Court
Mariyadas vs The Revenue Divisional Officer on 3 December, 2019
Author: S.Manikumar
Bench: S.Manikumar, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
TUESDAY, THE 03RD DAY OF DECEMBER 2019 / 12TH AGRAHAYANA, 1941
WP(C).No.40072 OF 2016(H)
PETITIONERS:
1 MARIYADAS, AGED 60 YEARS,
S/O. MUDIYAPPAN ELAVUMTHARA VEEDU,
PUTHENPEEDIKA NORTH, OMALLUR VILLAGE,
KOZHENCHERRY TALUK, PATHANAMTHITTA.
2 SARADA MARIYADAS, AGED 57 YEARS,
W/O. MARIYADAS, ELAVUMTHARA VEEDU,
PUTHENPEEDIKA NORTH, OMALLUR VILLAGE,
KOZHENCHERRY TALUK,PATHANAMTHITTA.
3 SHAIJU MARIYADAS, AGED 23 YEARS,
S/O. MAIYADAS, ELAVUMTHARA VEEDU,
PUTHENPEEDIKA NORTH, OMALLUR VILLAGE,
KOZHENCHERRY TALUK, PATHANAMTHITTA.
BY ADVS.
SRI.D.KISHORE
SMT.MINI GOPINATH
SMT.MEERA GOPINATH
SRI.R.MURALEEKRISHNAN (MALAKKARA)
RESPONDENTS:
1 THE REVENUE DIVISIONAL OFFICER,
OFFICE OF THE REVENUE DIVISIONAL OFFICER, ADOOR,
PATHANAMTHITTA-691 523.
2 THE OMALLUR GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY, OMALLUR,
PATHANAMTHITTA, PIN-689 647.
3 THE KERALA STATE HUMAN RIGHTS COMMISSION,
REPRESENTED BY ITS REGISTRAR, TURBO PLUS TOWER,
PMG JUNCTION, VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM-695 033.
4 BABURAJ, S/O.MOHANDAS, ELAVUMTHARA VEEDU,
PUTHENPEEDIKA NORTH, OMALUR VILLAGE, KOZHENCHERRY
TALUK, PATHANAMTHITTA-689 647.
W.P.(C).No.40072/2016 2
R2 BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY
SMT.N.SANTHA
SRI.V.VARGHESE
SRI.PETER JOSE CHRISTO
SRI.S.A.ANAND
SRI.K.A.BALAN
SMT.L.ANNAPOORNA
R4 BY ADV. SRI.ARUN.B.VARGHESE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 02-12-2019, THE COURT ON 03-12-2019 DELIVERED THE
FOLLOWING:
W.P.(C).No.40072/2016 3
"C.R."
JUDGMENT
Dated this the 3rd day of December, 2019 S.Manikumar, CJ.
Being aggrieved by the order dated 20.06.2016 passed by the State Human Rights Commission, Thiruvananthapuram in HRMP No.253/2016 (Ext.P7), directing the Revenue Divisional Officer, Adoor, respondent No.1, to take steps under the provisions of Code of Criminal Procedure if the petitioners did not construct the retaining wall, and the consequential notice dated 06.12.2016 (Ext.P8) issued by the Revenue Divisional Officer, Adoor, instant writ petition is filed to quash the same.
2. Writ petitioners have contended that they are in absolute possession and enjoyment of an extent of 2.43 Ares of property in Survey No.165/5 of Omallur Village by virtue of gift deed No.2490/2013. One of the main grounds urged by the writ petitioners is that, the impugned order Exhibit-P7 has been passed by the Kerala State Human Rights Commission exceeding its powers vested under law. The issue involved, relates to a complaint made by the 4th respondent on 25.07.2015 before the Kerala Stater Human Rights Commission that the petitioners removed earth from the northern side of the Panchayat road, whereby the passage through the road has become difficult. The 4 th respondent has also filed a W.P.(C).No.40072/2016 4 complaint before the Revenue Divisional Officer, Adoor on 13.10.2014. Thereafter, the Revenue Divisional Officer directed the Panchayat to restore the Panchayat road. Thereafter, petitioners received a notice from the Human Rights Commission stating to submit an objection to the complaint submitted by the 4th respondent before the Kerala State Human Rights Commission. Petitioners have contended that it is essentially a civil dispute and therefore, the State Human Rights Commission has no jurisdiction to interfere in the said dispute and issue any direction to the 1st respondent, Revenue Divisional Officer, Adoor.
3. Responding to the above and referring to Section 16 of the Protection of Human Rights Act, 1993, Sri.Peter Jose Christo, the learned counsel for the 2nd respondent contended that petitioners are responsible for the damage caused to the Tharayilapadi-Naduvathukavu Panchayat road by removing the earth unauthorisedly from the sides of the said road. They are also responsible to construct a retaining wall. The learned counsel further submitted that Panchayat cannot be mulcted with the responsibility to construct retaining wall to the said road. He further submitted that the pathway in issue lies on the southern side of the property and it is situated at a height of 4 metres above the property of the petitioners. For construction of his house, petitioner removed earth W.P.(C).No.40072/2016 5 from the sides, which caused the weakening of the Panchayat road, which passes at a height of 4 metres above the property of the petitioner.
4. He further contended that the 4 th respondent along with 35 persons lodged a complaint before the Revenue Divisional Officer, Adoor, respondent No.1. On the above said complaint, the Village Officer found that the petitioners had removed earth from the sides, which resulted in the weakening of the road. On 16.01.2015, the Panchayat called the petitioners for a hearing along with local residents of the said Harijan colony and petitioners promised to construct the retaining wall before 30.4.2015 in the said Panchayat hearing.
5. The 2nd respondent Panchayat has contended that State Human Rights Commission, Thiruvananthapuram, after receiving complaint from the 4th respondent conducted a hearing on 25.05.2016 and the 3 rd petitioner in his written statement, has admitted that for the construction of his house, he removed the earth from the land belonging to him. He further contended that pursuant to the directions issued by the Human Rights Commission in order dated 25.05.2016 (Exhibit-P3), the President of the Panchayat convened a meeting of both the parties and the petitioner informed the Panchayat that he is in utter penury and that only some aid is provided from the Panchayat, or from the Block, that he could W.P.(C).No.40072/2016 6 construct the wall. The Panchayat offered help by bearing half of the cost, if the petitioners are ready to bear the remaining half. The above said settlement was informed before the Commission in its camp sitting on 20.6.2016. It is further stated that in Exhibit-P3 proceedings, the Commission has categorically observed that the petitioners are responsible for the damage or weakening of the Tharayilapadi-Naduvathukavu Panchayat road. It is also observed that daughter of the petitioners have sought six months' time to settle the issue.
6. The 2nd respondent has further contended that the petitioners had purchased the property along with the building and they had only levelled the ground and there was no removal of earth from the property, is against the averments made by them in Exhibit-P2 objection dated 19.02.2016 submitted by the 3rd petitioner before the Commission. The petitioners are also responsible for the damage caused to the road by unauthorisedly removing the earth from the sides of the road.
7. Respondent No.4 has filed a counter affidavit contending that a pathway from Tharayilapadi-Naduvathukavu Panchayat road in south- north direction measuring 8 feet wide and 200 metres in length was provided by the Government for the convenient access and passage to the residents of Harijan colony. It is further contended that towards the end W.P.(C).No.40072/2016 7 of the said pathway, the 2nd respondent has acquired land for the purpose of an "Ankanvadi" and the said pathway is only available access to the "Ankanvadi". He further contended that the writ petitioners, who are residing near to the middle of the said pathway, illegally removed earth from the said pathway to the tune of 12 feet deep and 25 metres length whereby, the said pathway has become impossible for the residents of the colony to walk and travel and the writ petitioners have no right to remove the earth from the said pathway, which has been specifically meant for the convenience of the residents of the said colony. The illegal removal of earth from the said pathway has hampered vehicle transport through the said pathway and therefore, there is an urgent need to protect the pathway by adequate support walls and to reinstate the pathway to a normal condition suitable for travelling by the residents. The 4 th respondent further contended that he has filed a complaint before the Revenue Divisional Officer, Adoor along with the residents of Harijan Colony on 7.10.2014 stating that the petitioners had illegally removed earth from the pathway.
8. It is further contended that on receipt of the complaint, the 1 st respondent has directed the Village Officer, Omallur to make an enquiry and submit a report. Accordingly, report dated 13.10.2014 was submitted. W.P.(C).No.40072/2016 8 The said report states clearly that there is an urgency of constructing support walls to protect the pathway. The report further states that the purpose of pathway is only for access to the colony inmates and that the writ petitioners have illegally removed the earth and it is the only access to the Ankanvadi, which is located at the end of the pathway.
9. Referring to the provisions of the Protection of Human Rights Act, 1993, the 4th respondent has contended that by exercising all those powers, the Commission has passed Exhibit-P7 order and hence, Human Rights Commission has jurisdiction to interfere. Referring to Exhibit-P7 order of the Human Rights Commission, learned counsel for the 2 nd respondent further submitted that the Commission has not concluded the rights of the parties, but only directed the Revenue Divisional Officer to take necessary action. He also submitted that it is always open to the writ petitioners to place all tenable grounds before the above authorities for any further grievance.
10. Heard learned counsel for the parties and perused the material available on record.
11. Section 2(d) of the Protection of Human Rights Act, 1993 reads as follows:
"2. Definitions.-(1) In this Act, unless the context otherwise requires.-W.P.(C).No.40072/2016 9
(a) xx xxxxx
(b) xx xxxxx
(c) xx xxxxx
(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."
12. A Hon'ble Division Bench of this Court in W.P.(C) No.1314 of 2016 dated 23.07.2019, observed thus:
"12. Section 12 of the Act deals with the functions of the National Human Rights Commission. By virtue of Section 29 of the Act, the provisions contained in Section 12 of the Act are applicable to State Human Rights Commission also. Section 12(a) of the Act provides that the Commission shall 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 - (i) violation of human rights or abetment thereof or (ii) negligence in the prevention of such violation, by a public servant. Section 12(b) of the Act provides that the Commission shall intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court. Section 12(d) of the Act states that the Commission shall review the safeguards provided by or 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. Section 12(j) of the Act states that the Commission shall perform such other functions as it may consider necessary for the promotion of human rights.W.P.(C).No.40072/2016 10
13. Section 18(a)(iii) of the Act provides that, where the inquiry discloses the commission of violation of human rights or negligence in the prevention of violation of human rights or abetment thereof by a public servant, it may recommend to the concerned Government or authority to take such further action as it may think fit. Section 18(e) of the Act provides that the commission shall send a copy of its inquiry report together with its recommendations to the concerned Government or authority and the concerned Government or authority shall, within a period of one month or such further time as the Commission may allow, forward its comments on the report, including the action taken or proposed to be taken thereon to the Commission."
13. In Paramjit Kaur v. State of Punjab reported in (1999) 2 SCC 131, the Hon'ble Supreme Court held thus:
"14. The concept of sui generis is applied quite often with reference to resolution of disputes in the context of international law. When the conventions formulated by compacting nations do not cover any area territorially or any subject topically, then the body to which such power to arbiter is entrusted acts sui generis, that is, on its own and not under any law.
17. The Commission is also a body sui juris created under an Act made by Parliament for examining and investigating the questions and complaints relating to violation of human rights, as also the negligence on the part of any public servant in preventing such violations."
14. In Doundial v. Union of India reported in AIR 2004 SC 1272, the Hon'ble Supreme Court held thus:
W.P.(C).No.40072/2016 11
"14. We cannot endorse the view of the Commission. The Commission which is an 'unique expert body' is, no doubt, entrusted with a very important function of protecting the human rights, but, it is needless to point out that the Commission has no unlimited jurisdiction nor does it exercise plenary powers in derogation of the statutory limitations. The Commission, which is the creature of statute, is bound by its provisions. Its duties and functions are defined and circumscribed by the Act. Of course, as any other statutory functionary, it undoubtedly has incidental or ancillary powers to effectively exercise its jurisdiction in respect of the powers confided to it but the Commission should necessarily act within the parameters prescribed by the Act creating it and the confines of jurisdiction vested in it by the Act. The Commission is one of the fora which can redress the grievances arising out of the violations of human rights. Even if it is not in a position to take up the enquiry and to afford redressal on account of certain statutory fetters or handicaps, the aggrieved persons are not without other remedies. The assumption underlying the observation in the concluding passage extracted above proceeds on an incorrect premise that the person wronged by violation of human rights would be left without remedy if the Commission does not take up the matter."
15. In G.Manikyamma and Others v. Roudri Cooperative Housing Society Limited and Others reported in (2014) 15 SCC 197, the Hon'ble Supreme Court held thus:
"41. There is nothing on record before us to establish that the land in question was duly taken possession by the Government W.P.(C).No.40072/2016 12 under the provisions of the Act. Until possession is duly taken as explained above, property still remains private property notwithstanding the determination that such property is ' land in excess of the ceiling limit' under the Act. The persons in possession of such property, whatever be the nature of their possession - whether they are encroachers or persons such as the first respondent Society - cannot be evicted by force. All this requires a thorough examination of the respective rights of the various parties and the authority of the State to deal with the property in question.
42. The Human Rights Commission, in our view, would not be competent forum for the examination of the above - mentioned issues. Both the first respondent Society as well as the encroachers, in our view, wrongly invoked the jurisdiction of the Human Rights Commission instead of pursuing the appropriate remedies available to them in law, and the Human Rights Commission was too willing to exercise authority without any jurisdiction. We are also of the opinion that the High Court resorted to more of a mediation activity than the determination of the legal issues involved in the case.
43. In our opinion, the Human Rights Commission does not have any jurisdiction to deal with the disputed questions of title and possession of the property."
16. Regulation 17 of the Kerala Human Rights Commission (Procedure) Regulations, 2001, which deals with maintainability of complaints before the Commission states thus:
W.P.(C).No.40072/2016 13
"17. Complaints not ordinarily maintainable.- The Commission may dismiss inlimine complaints of the following nature:
(a) Illegible;
(b) vague, anonymous or pseudonymous;
(c) trivial or frivolous;
(d) barred under sub-section (1) or (2) of section 36 of the Act;
(e) allegations do not disclose involvement of any public servant;
(f) issue raised relates to civil disputes, service matters, labour or industrial dispute;
(g) allegations do not raise any violation of human rights;
(h) If the mater raised is subjudice before a Court or Tribunal;
(I) the matter is covered by a Judicial verdict/decision of the National Commission or a State Commission;
(j) Where the complaint is only a copy of the petition addressed to some other authority.
(k) Where the petition is not signed or where the original petition is not sent to the Commission;
(l) Where the matter raised is outside the purview of the Commission or on any other ground."
17. 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: W.P.(C).No.40072/2016 14
"CHAPTER III FUNCTIONS AND POWERS OF THE COMMISSION
12. Functions of the Commission:- The Commission shall perform all or any of the following functions, namely:-
(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 (I) violation of human rights or abetment thereof; or
(ii) negligence in the prevention of such violation, by a public servant;
(b) intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;
(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:
(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;
(e) review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures;
(f) study treaties and other international instruments on human rights and make recommendations for their effective implementation;W.P.(C).No.40072/2016 15
(g) undertake and promote research in the field of human rights;
(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;
(I) encourage the efforts of non-governmental organisations and institutions working in the field of human rights;
(j) such other functions as it may consider necessary for the protection of human rights."
18. 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.
19. 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.
20. 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.
W.P.(C).No.40072/2016 16
21. In the light of the above, order in HRMP No.253/2016 dated 20.06.2016 (Exhibit-P7) passed by the State Human Rights Commission, Thiruvananthapuram and the consequential notice dated 06.12.2016 (Exhibit-P8) issued by the Revenue Divisional Officer, Adoor are liable to be set aside. Accordingly, we set aside the same.
The writ petition is allowed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
A.M.SHAFFIQUE JUDGE krj //TRUE COPY// P.A. TO JUDGE W.P.(C).No.40072/2016 17 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS DATED 13.1.2016 ALONG WITH THE COMPLAINT DATED 25.7.2015 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT EXHIBIT P2 TRUE COPY OF THE OBJECTION DATED 19.2.2016 SUBMITTED BY THE 3RD PETITIONER BEFORE THE 3RD RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 25.5.2016 IN HRMP NO.253/2016 OF THE 3RD RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE INFORMATION REQUESTED BY THE 1ST PETITIONER FROM THE 2ND RESPONDENT.
EXHIBIT P4(A) TRUE COPY OF THE INFORMATION DATED 23.2.2016 ISSUED BY THE PUBLIC INFORMATION OFFICER OF THE 2ND RESPONDENT PANCHAYAT.
EXHIBIT P5 TRUE COPY OF THE DECISION DATED 16.6.2016 OF THE 2ND RESPONDENT-PANCHAYAT ISSUED TO THE 3RD PETITIONER UNDER THE RIGHT TO INFORMATION ACT.
EXHIBIT P6 TRUE COPY OF THE REPORT DATED 17.6.2016 SUBMITTED BY THE 1ST RESPONDENT BEFORE THE 3RD RESPONDENT EXHIBIT P7 TRUE COPY OF THE ORDER DATED 20.6.2016 IN HRMP NO.253/2016 OF THE 3RD RESPONDENT EXHIBIT P8 TRUE COPY OF THE NOTICE NO.B1/4619/2016 DATED 6.12.2016 OF THE 1ST RESPONDENT.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R4(A) TRUE COPY OF THE REPRESENTATION DATED 7.10.2014 SUBMITTED BEFORE THE IST RESPONDENT BY THE 4TH RESPONDENT.
EXHIBIT R4(B) TRUE COPY OF THE REPORT DATED 13.10.2014 SUBMITTED BY THE VILLAGE OFFICER, OMALLOOR TO THE IST RESPONDENT.
EXHIBIT R4(C) TRUE COPY OF THE LETTER DATED 12.11.2014 ISSUED BY THE IST RESPONDENT DIRECTING THE 2ND RESPONDENT TO TAKE APPROPRIATE ACTION ON EXHIBIT R4(A) REPRESENTATION.W.P.(C).No.40072/2016 18
EXHIBIT R4(D) TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 16.1.2015 AT THE PANCHAYATH CONFERENCE HALL.
EXHIBIT R4(E): TRUE COPY OF THE LETTER DATED 10.4.2015 ISSUED BY THE 2ND RESPONDENT TO THE PANCYAYATH DEPUTY DIRECTOR.