Kerala High Court
P.M.Mathew vs The District Collector
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 15TH DAY OF FEBRUARY 2017/26TH MAGHA, 1938
WP(C).No. 14466 of 2013 (G)
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PETITIONER(S):
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1. P.M.MATHEW,
S/O.MATHEW,
PULICKAYIL HOUSE,
VANNAPPURAM P.O.,
THODUPUZHA, IDUKKI DISTRICT.
2. P.M.THOMAS,
S/O.MATHEW, PULICKAYIL HOUSE,
VANNAPPURAM P.O., THODUPUZHA, IDUKKI DISTRICT.
BY ADVS.SRI.N.RAGHURAJ
SMT.K.AMMINIKUTTY
RESPONDENT(S):
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1. THE DISTRICT COLLECTOR,
COLLECTORATE, IDUKKI.
2. THE REVENUE DIVISIONAL OFFICER,
COLLECTORATE, IDUKKI.
3. THE DISTRICT SURVEY SUPERINTENDENT,
O/O. DISTRICT SURVEY SUPERINTENDENT,
COLLECTORATE, IDUKKI.
4. VANNAPPURAM GRAMA PANCHAYATH
O/O. THE VANNAPPURAM GRAMA PANCHAYATH,
VANNAPPURAM P.O., THODUPUZHA, PIN-685 607,
IDUKKI DISTRICT, REPRESENTED BY ITS SECRETARY.
SKG
WP(C).No. 14466 of 2013 (G)
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5. C.K.SIVADAS
S/O.KUNJUMON, CHERIYAMKUNNEL HOUSE,
VANNAPPURAM P.O., VANNAAPPURAM KARA,
THODUPUZHA, IDUKKI DISTRICT-685 582.
R1-R3 BY GOVERNMENT PLEADER SMT. MABLE C. KURIAN
R4 BY ADV. SRI.GEORGE MATHEW
R5 BY ADVS. SRI.K.RAMAKUMAR (SR.)
SRI.S.M.PRASANTH
SMT.SMITHA GEORGE
SMT.ASHA BABU
SMT.G.ASHWINI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 15-02-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 14466 of 2013 (G)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 : TRUE COPY OF THE COMPLAINT OF THE RESPONDENT
DT.11-01-2012.
EXHIBIT P2 : TRUE COPY OF THE REPORT OF THE TALUK SURVEYOR
THODUPUZHA.
EXHIBIT P3 : TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 4TH
RESPONDENT IN WPC. 4411/2012.
EXHIBIT P4: TRUE COPY OF THE JUDGMENT DATED 24-5-12 IN WPC
4411/2012 OF THIS HON'BLE COURT.
EXHIBIT P5 : TRUE COPY OF THE REPORT OF THE SENIOR
SUPERINTENDENT/AUDIT SUPERVISOR.
EXHIBIT P6 : TRUE COPY OF THE PROCEEDINGS DATED 21-2-2012.
EXHIBIT P7 : TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 4TH
RESPONDENT IN WPC 9086/2012.
EXHIBIT P8 : TRUE COPY OF THE JUDGMENT DATED 16-7-12 IN WPC
9086/2012 BY THIS HON'BLE COURT.
EXHIBIT P9 : TRUE COPY OF THE COMPLAINT NO.OP 314/2012.
EXHIBIT P10 :TRUE COPY OF THE REPORT/OBJECTION IN OP. 314/2012
FILED BY THE 4TH RESPONDENT PANCHAYATH.
EXHIBIT P11: TRUE COPY OF THE ORDER OF THE OMBUDSMAN FOR LOCAL
SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN
OP. 314/2012 DATED 20-12-2012.
EXHIBIT P12: TRUE COPY OF THE ORDER DATED 2-3-2013 IN IA.
2140/2012 IN OS. 326/2012.
EXHIBIT P13: TRUE COPY OF THE COMPLAINT 6-3-2013 BY THE 5TH
RESPONDENT.
EXHIBIT P14: TRUE COPY OF THE NOTICE DATED 24-5-2013 ISSUED BY
THE VILLAGE OFFICER, VANNAPPURAM.
EXHIBIT P15: TRUE COPY OF THE SAID NOTICE DATED 27-5-2013.
EXHIBIT P16 : TRUE COPY OF THE COMPLAINT DATED 2-4-2013 FILED BY
THE 5TH RESPONDENT.
EXHIBIT P17 : TRUE COPY OF THE LETTER TO THE SECRETARY OF THE
PANCHAYATH ISSUED BY THE PRESIDENT OF THE 4TH
RESPONDENT PANCHAYATH.
SKG
WP(C).No. 14466 of 2013 (G)
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RESPONDENT(S)' EXHIBITS
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EXHIBIT R5(A) TRUE COPY OF THE REPORT DATED 19.04.2013
SUBMITTED BY THE SECRETARY, VANNAPPURAM GRAMA
PANCHAYAT BEFORE THE SUB COLLECTOR, IDUKKI.
EXHIBIT R5(B) TRUE COPY OF THE REPRESENTATION DATED 15.01.2013
SUBMITTED BY THE JANAKEEYA SAMRAKSHANA SAMITHI
BEFORE THE REVENUE MINISTER
EXHIBIT R5(C) TRUE COPY OF THE COMMUNICATION NO.C13-20633/2012
OF THE DISTRICT COLLECTOR, IDUKKI.
/TRUE COPY/
P.S. TO JUDGE
SKG
DEVAN RAMACHANDRAN, J.
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WP(C) No.14466 of 2013
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Dated this the 15th day of February, 2017
JUDGMENT
The petitioners commenced construction of a building in a certain extent of land owned by them in the Vannappuram Village comprised under the jurisdiction of the 4th respondent Panchayat. It appears that soon after such construction began, the 5th respondent, who claims to be a public spirited person, began raising complaints that the petitioners were making constructions in the Government land or purambokku land owned by the Panchayat. In its essence, complaint was that by the construction that has been continued by the petitioners, the access to a bus stop and a toilet block constructed, by the Panchayat had been obstructed causing inconvenience to the members of the public who intends to avail access to such public facilities. It appears that he had made several complaints leading to several orders, which I will refer to in some detail presently, but finally leading to Exts.P14 & P15 notices issued by the Village Officer, WP(C) No.14466 of 2013 2 Vannappuram and by the District Superintendent, Idukki, respectively, proposing a survey of the property in order to find out the limits of the petitioners' property and that of the Panchayat's public facilities.
2. The petitioners have challenged these notices and proceedings have been illegal and unlawful and completely without any purpose, since, according to them, all these issues are already been completed and concluded in the earlier proceedings.
3. I have heard Mr.N. Raghuraj, the learned counsel appearing for the petitioners, the learned Government Pleader appearing for respondents 1 to 3, the learned Standing Counsel appearing for the 4th respondent and also Sri. T. Ramprasad Unni, the learned counsel appearing for the 5th respondent.
4. I notice that this case has some history. When the construction of the building commenced, the 5th respondent appears to move Ext.P1 application before the District Collector. On the allegation that the same was not being considered, he had approached this Court, but later withdrew the same. The petitioner would contend that based on the objections made by WP(C) No.14466 of 2013 3 the petitioner or caused to be made by him, and in order to find a quietus to the whole issue, the Taluk Surveyor had conducted a survey, which is discernible from Ext.P2 order. As is luculent from Ext.P2, the Taluk Surveyor has found that there is no encroachment by the petitioner into the public lands and that there is no conversion of paddy land, as was also alleged by the 5th respondent in one of his complaints.
5. Normally speaking, the matter should have ended there. However, the 5th respondent filed WP(C) No.4411 of 2012 before this Court. The Panchayat entered appearance in the said writ petition and filed Ext.P3 counter affidavit, again supporting the case of the petitioner that there had been no encroachment and no conversion of paddy land, which was primarily based on Ext.P2 report. The writ petition was, therefore, withdrawn by the 5th respondent as is obvious from Ext.P5 order. Not resting here, the 5th respondent preferred a fresh complaint before the Panchayat Deputy Director, who caused another inspection and ordered a report to be placed before him as is discernible from Ext.P5. There again, the report was that there was no encroachment. This is more or less the end of the first round of WP(C) No.14466 of 2013 4 litigation.
6. The second round started with another person, filing a fresh writ petition before this Court as WP(C) No.9086 of 2012, who the petitioners say, was one who was put up by the 5th respondent. There again, the Panchayat filed a counter affidavit in terms of their earlier stand affirming that there was no encroachment by the petitioners or conversion of paddy land. This writ petition was disposed of as per Ext.P8 judgment, noticing the earlier proceedings. The 5th respondent, thereafter, made a fresh complaint before the Ombudsman for Local Self Government Institutions, as is evident from Ext.P9, which led to Ext.P11 order dated 20.12.2012, again dismissing it. This order was issued by the learned Ombudsman based on the report that has been filed by the Panchayat produced in this writ petition as Ext.P10. Not being satisfied, the 5th respondent, along with another person, filed O.S. No.326 of 2012 before the Munsiff's Court, Thodupuzha, seeking personal relief against the petitioners that the properties of the Panchayat be demarcated from that of the petitioners and that any encroachment be resumed. Unfortunately for the 5th respondent, the application for interim WP(C) No.14466 of 2013 5 injunction sought for by him was dismissed and I am told that the suit is still pending without any further orders.
7. The desperation of the 5th respondent in not being able to obtain orders in any of the proceedings that he had initiated, finally led him to make application before the Sub Collector, Idukki as per Ext.P13, styling himself as the Chairman of a certain 'Janakeeya Samrakshana Samithi'. It appears that a copy of this was also preferred before the Hon'ble Minister for Revenue. The representation before the Hon'ble Minister was, perhaps more as a formality, sent down the ranks, finally to reach the Village Officer, Vannappuram for taking action. The Village Officer, therefore, issued Ext.P14 notice to the petitioners asking them to appear before the RDO for an enquiry. I am told by the learned counsel for the petitioners that this was obeyed by the petitioners and that they had appeared before the RDO and presented all the relevant documents. Almost like a parallel proceedings, the District Survey Superintendent, the 3rd respondent herein, issued Ext.P15 notice intimating the petitioners that he intends to conduct a fresh enquiry and survey in order to review the action and survey conducted by the Taluk WP(C) No.14466 of 2013 6 Surveyor as was reported in Ext.P2. The petitioner has impugned these orders as being illegal and being without jurisdiction as indicated above.
8. I have been examined Ext.P15 with specific reference to the allegations made by the petitioners. It is obvious from Ext.P15 that the 3rd respondent has issued this order without indicating as to the power that he wields for initiating such processes. He merely says that he intends to conduct an enquiry and survey or inspection of the property in order to 'review' the earlier survey conducted by the Taluk Surveyor. I am not sure as to what prompted the 3rd respondent in issuing such order except that he had obtained a copy of the representation, that is preferred by the 5th respondent and others before the Hon'ble Minister. He has, perhaps feeling pleasured by the fact that these representations were forwarded to him for necessary action, issued Ext.P15 as if he is an Appellate Authority over the action taken by the Taluk Surveyor. It is interesting that the 3rd respondent has taken up on himself the burden of conducting a fresh enquiry, even though the 5th respondent or anyone else had not been approached him for such a purpose. No representation WP(C) No.14466 of 2013 7 or application had been made before the 3rd respondent admittedly by the 5th respondent or anyone else. Ext.P15 would indicate that he had acted virtually suo motu, based on the reference made to him, presumably because of the representation, that was filed before the Hon'ble Minister. There is nothing on record to indicate which is the power that he had assumed in doing so and what is the power that he could have exercised. There is also nothing on record to sustain such an action at the hands of the 3rd respondent under any law or any applicable Rule or Regulation. I am further of the view that Ext.P15 order cannot be sustained.
9. In such circumstances, I have no hesitation in quashing Ext.P15 order issued by the 3rd respondent, however, making it clear that this will not stand in the way of the 5th respondent invoking any remedy, as is available to him under the applicable Act, Rules or Regulations, if any, if he is so advised. I am not sure, after all these proceedings as indicated above had been completed, whether the 5th respondent can really maintain any further proceeding. However I do not think that I must asphyxiate any remedy that may be even remotely available to WP(C) No.14466 of 2013 8 him at my hands and that is the only the reason why I leave this liberty for him.
10. Of course, any authority or any forum, before whom any such action is now attempted by the 5th respondent, will have to be necessarily consider the impact of all the earlier proceedings and decide whether any further action is required to be legitimately initiated in terms of any available law permitting such action.
The writ petition is ordered as above. In the facts and circumstances of this case, I make no order as to costs and I direct the parties to suffer their respective costs.
Sd/-
DEVAN RAMACHANDRAN, JUDGE.
sp/17/02/17 //True Copy// P.A. to Judge