Kerala High Court
Our Lady Of Dolours Church vs State Of Kerala on 2 April, 2019
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 02ND DAY OF APRIL 2019 / 12TH CHAITHRA, 1941
WP(C).No.1820 of 2018
PETITIONERS:
1 OUR LADY OF DOLOURS CHURCH
MANJALY, KARUMALLOOR VILLAGE, NORTH PARAVUR TALUK,
NORTH PARAVUR-683520, REPRESENTED BY ITS VICAR.
2 SECRETARY
PARISH COUNCIL, OUR LADY OF DOLOURS CHURCH,MANJALY,
KARUMALOOR VILLAGE, NORTH PARAVUR TALUK,
NORTH PARAVUR-683520.
BY ADVS.
SRI.R.S.KALKURA
SMT.ARYA VIVEK
SMT.NEENU PAVITHRAN
SMT.P.ANJANA
SMT.R.BINDU
SRI.HARISH GOPINATH
SRI.M.S.KALESH
SRI.P.I.NAJUMAL HUSSAIN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, REVENUE,
GOVERNMENT OF KERALA, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE DISTRICT COLLECTOR, ERNAKULAM
COLLECTORATE, KAKKANAD-682030,ERNAKULAM DISTRICT.
3 THE TAHSILDAR
NORTH PARUR, TALUK OFFICE, NORTH PARUR-683513.
4 SHAMON P.H.
AGED 36 YEARS, S/O.HYDROSE, POYULUNGAL HOUSE,
MANNAM P.O., MANJALY,PARAVUR TALUK-683513.
5 SHIBY
AGED 45 YEARS, D/O.ABDULKARIM, KALARIKKAL HOUSE,
MANNAM P.O., MANJALY,PARAVUR TALUK-683513.
W.P.(C) Nos.1820 & 3866/2018 2
6 NAJEEB
AGED 40 YEARS, S/O.ABDULKARIM,KALARIKKAL HOUSE,
MANNAM P.O., MANJALY,PARAVUR TALUK-683513.
7 RISHI
AGED 41 YEARS, S/O.LAILA, KALARIKKAL HOUSE, MANNAM
P.O., MANJALY, PARAVUR TALUK-683513.
BY ADVS.
SRI.K.J.MOHAMMED ANZAR, SPL.GOVERNMENT PLEADER
SRI.SREEVALSAKRISHNAN P.K
SRI.S.RENJITH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.04.2019, ALONG WITH WP(C)No.3866/2018, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.1820 & 3866/2018 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 02ND DAY OF APRIL 2019 / 12TH CHAITHRA, 1941
WP(C).No.3866 of 2018
PETITIONERS:
1 SHAMON
AGED 36, S/O. HYDROSE, POYLUNGAL HOUSE, MANJALY
KARA, KARUMALLUR VILLAGE, PARAVUR TALUK,
MANNAM P.O., ERNAKULAM, PIN-683513.
2 MATHACHAN E. M.
AGED 54, S/O. MATHAYI, ELAMKUNNAPPUZHA HOUSE,
MANJALY, MANNAM P.O., ERNAKULAM, PIN-683513.
3 JAMSHEENA
W/O. NAJEEB, KALARIKKAL HOUSE, MANJALY,
MANNAM P.O., ERNAKULAM, PIN-683513.
4 ABDUL KAREEM
AGED 59, S/O. SYEDU, PUTHENPARAMBIL HOUSE, MANJALY,
MANNAM P.O., ERNAKULAM, PIN-683513.
5 GRACY
AGED 63, W/O. VARGHESE, THERULLI HOUSE, MANJALY,
MANNAM P.O., ERNAKULAM, PIN-683513.
6 SHIBI K. A.
AGED 45, S/O. ABDUL KAREEM, KALARIKKAL HOUSE,
MANJALY, MANNAM P.O., ERNAKULAM, PIN-683513.
BY ADVS.
SRI.S.RENJITH
SRI.P.K.SREEVALSAKRISHNAN
RESPONDENTS:
1 STATE OF KERALA
SECRETARY TO GOVERNMENT, LAND REVENUE DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.
W.P.(C) Nos.1820 & 3866/2018 4
2 THE COMMISSIONER OF LAND REVENUE
GROUND FLOOR, NEW BUILDING, BAKERY JUNCTION ROAD,
UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PALAYAM,
THIRUVANANTHAPURAM, KERALA-695033.
3 THE DISTRICT COLLECTOR
ERNAKULAM DISTRICT, CIVIL STATION, KAKKANAD,
ERNAKULAM, PIN-682030.
4 THE TAHSILDAR
PARAVUR TALUK, PARAVUR, THALUK OFFICE, PARAVOOR,
ERNAKULAM, PIN-683513.
5 THE VILLAGE OFFICER
KARUMALOOR VILLAGE OFFICE, PARAVUR, ERNAKULAM,
PIN-683513.
6 THE KARUMALOOR GRAMA PANCHAYAT
KARUMALOOR, ALUVA, ERNAKULAM, PIN-683513,
REP. BY ITS SECRETARY.
7 VICAR
OUR LADY OF DOLLAR'S CHURCH, MANJALY, KARUMALLOOR
VILLAGE, MANNAM P.O., PARAVUR, ERNAKULAM,
PIN-683513.
BY ADVS.
SRI.MOHAMMED ANZAR K.J., SPL.G.P. FOR REVENUE
SMT.P.ANJANA
SRI.C.ANIL KUMAR
SMT.A.K.PREETHA
SMT.R.BINDU
SRI.HARISH GOPINATH
SRI.M.S.KALESH
SRI.R.S.KALKURA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
02.04.2019, ALONG WITH WP(C)No.1820/2018, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.1820 & 3866/2018 5
J U D G M E N T
These writ petitions are related to the use of 62.125 cents of land originally belonged to the Government and assigned to Our Lady of Dolours Church. The Government, as per the order dated 18.09.1985 assigned the aforesaid 62.125 cents of land to the above Church on the following conditions:
(i) The land shall be used only for the purpose for which it is assigned.
(ii)The land shall not be alienated in any form.
(iii)The land will be resumed without payment of compensation for improvement if any of the conditions of assignment is violated.
2. The present dispute arises in the context of the claim raised by the petitioners in W.P.(C) No.3866 of 2018 and others for use of the above land as pathway to their house. According to them, the land was lying vacant and all the neighbouring owners were using the land for the ingress and egress to their properties. The petitioners in W.P.(C) No.3866 of 2018 have a case that the Church has violated the conditions of assignment. Accordingly, they moved the Government by W.P.(C) Nos.1820 & 3866/2018 6 Ext.P17 for revoking the assignment. In that matter, the Tahsildar filed a statement. In the statement filed on behalf of the Tahsildar, it is stated that an attempt has been made to survey the land and demarcate the boundaries of land assigned to the Church. However, this could not be completed due to various reasons. It appears that the Church also constructed an arch over the land. It is stated that it will not obstruct the passage through the land in dispute. However, it is stated that there is no pathway as such and the land is now lying as part of other land belonged the Church.
3. The Our Lady of Dolours Church filed W.P.(C) No.1820 of 2018 challenging Exts.P14 and P15 produced in the said writ petition. Ext.P14 is the proceedings of the District Collector, Ernakulam directing the Tahsildar to measure and demarcate the 62.125 cents of land assigned to the Church. Ext.P15 is the minutes of the meeting held in the Chambers of the District Collector to resolve the dispute relating to use of land as pathway. The meeting was convened in the light of the complaint raised by the public alleging W.P.(C) Nos.1820 & 3866/2018 7 that they were denied using land as pathway. In the meeting, the District Collector decided to give direction to the Taluk Surveyor to re-determine the boundary and also to maintain status quo till survey report is made available.
4. As far as the proceedings initiated as per Exts.P14 and P15 is concerned, I do not find any reason to interfere with the matter.
5. Learned counsel for the petitioners would submit that there is a civil suit pending in the matter. Therefore, the revenue authorities shall not interfere in the matter. The public authorities can very well measure the land assigned to Church and demarcate its boundaries. They are also competent to determine whether the land is being used for the purpose for which it was assigned.
6. In such scenario, I find that, notwithstanding the pendency of the civil suit, the proceedings can be concluded in accordance with law.
7. The petitioners in W.P.(C) No.3866 of 2018 approached the Government challenging violation of the W.P.(C) Nos.1820 & 3866/2018 8 conditions for issuance of patta. It is for the Government to take a decision in the matter, after hearing all concerned.
Accordingly, I direct the Government to consider Ext.P17 produced in W.P.(C) No.3866 of 2018, after hearing the petitioners therein and Our Lady of Dolours Church, within a period of three months.
W.P.(C) No.1820 of 2018 is accordingly dismissed and W.P.(C) No.3866 of 2018 is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE JUDGE smp W.P.(C) Nos.1820 & 3866/2018 9 APPENDIX OF WP(C) No.1820/2018 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LETTER OF AUTHORISATION ISSUED BY THE BISHOP OF VARAPUZHA ARCHIDIOCESE DATED 9.1.2017.
EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT BEARING NO.707 DATED 12.3.1997 ISSUED BY THE VILLAGE OFFICER, KARUMALLOOR.
EXHIBIT P3 TRUE COPY OF THE ORDER OF ASSIGNMENT DATED 18.9.1985 BEARING NO.844/85/RD.
EXHIBIT P4 TRUE COPY OF THE PATTA BEARING B-11837/87 DATED 3.06.1994 BY THE TAHSILDAR PARAVUR. EXHIBIT P5 THE PHOTOGRAPH OF THE PATHWAY LEADING TO THE CHURCH AND THE CHURCH.
EXHIBIT P5(a) THE PHOTOGRAPH OF THE PATHWAY LEADING TO THE CHURCH AND THE CHURCH.
EXHIBIT P6 TRUE COPY OF THE SUIT O.S.457 OF 2017 DATED 21.6.2017 ON THE FILE OF THE MUNSIFF'S COURT NORTH PARUR.
EXHIBIT P7 TRUE COPY OF THE ORDER OF INJUNCTION IN I.A.NO.1616 OF 2017 ON THE FILE OF THE MUNSIFF'S COURT NORTH PARUR DATED 27.7.2017.
EXHIBIT P8 TRUE COPY OF THE NOTICE DATED 19.7.2017 ISSUED BY THE ADDITIONAL DISTRICT MAGISTRATE (SUB COLLECTOR) TO THE PETITIONERS.
EXHIBIT P9 TRUE COPY OF THE ORDER DATED 31.7.2017 ISSUED BY THE ADDITIONAL DISTRICT MAGISTRATE ERNAKULAM IN PROCEEDINGS NO.M6- 5645/17.
EXHIBIT P10 TRUE COPY OF THE PHOTOGRAPH OF THE ARCH PLACED IN THE PATHWAY LEADING TO THE CHURCH.
W.P.(C) Nos.1820 & 3866/2018 10EXHIBIT P11 TRUE COPY OF THE ORDER OF STAY DATED 9.8.2017 IN CRL.M.A.4214 OF 2017 IN CRL.R.P.939 OF 2017.
EXHIBIT P12 TRUE COPY OF THE SURVEY PLAN PERTAINING TO THE PROPERTY ASSIGNED TO THE CHURCH AND THE TWO METER PATHWAY.
EXHIBIT P13 TRUE COPY OF THE REPORT DATED 23.11.2017 OF THE TAHSILDAR, PARUR ISSUED AS PER R.T.I. APPLICATION OF THE PETITIONERS ALONG WITH LETTER DATED 11.12.2017 OF THE PUBLIC INFORMATION OFFICER.
EXHIBIT P14 TRUE COPY OF THE LETTER DATED 28.11.2017 ISSUED BY THE SECOND RESPONDENT TO THE THIRD RESPONDENT.
EXHIBIT P15 TRUE COPY OF THE MINUTES OF THE MEETING DATED 19.12.2017 HELD AT THE CHAMBERS OF THE SECOND RESPONDENT.
RESPONDENTS' EXHIBITS: NIL.
True Copy P.S to Judge smp W.P.(C) Nos.1820 & 3866/2018 11 APPENDIX OF WP(C)No.3866/2018 PETITIONER'S EXHIBITS:
EXHIBIT P1 COPY OF THE COMPLAINT FILED BEFORE PARAVUR TAHSILDAR DATED 05.12.2013.
EXHIBIT P2 COPY OF GOVERNMENT ORDER G.O. (MS) NO.
844/85/RD DATED 18.09.1985 ISSUED BY UNDER SECRETARY REVENUE DEPARTMENT.
EXHIBIT P3 COPY OF THE PATTA DATED 03.06.1994 ALONG WITH SKETCH GIVEN BY PARAVUR TAHSILDAR TO THE 7TH RESPONDENT.
EXHIBIT P4 COPY OF THE LETTER DATED 21.02.2017 SUBMITTED BEFORE KARUMALLOOR VILLAGE OFFICER.
EXHIBIT P5 COPY OF THE COMPLAINT DATED 17.07.2017.
EXHIBIT P6 COPY OF THE NOTICE DATED 19.07.2017 OF ADDITIONAL DISTRICT MAGISTRATE, ERNAKULAM.
EXHIBIT P7 COPY OF THE REPORT ALONG WITH SKETCH OF KARUMALLOOR VILLAGE OFFICER DATED 21.07.2017.
EXHIBIT P8 COPY OF THE ORDER OF THE ADDITIONAL DISTRICT MAGISTRATE, ERNAKULAM DATED 31.07.2017.
EXHIBIT P9 COPY OF THE LETTER TO REVENUE MINISTER ALONG WITH APPLICATION FOR PATTA DATED 03.02.1983.
EXHIBIT P10 COPY OF THE REPORT OF REVENUE INSPECTOR DATED 20.12.1983.
EXHIBIT P11 COPY OF THE RULE 12(1) NOTICE DATED 09.01.1984.
EXHIBIT P12 COPY OF THE REPORT OF THE TAHSILDAR DATED 28.06.1984.
W.P.(C) Nos.1820 & 3866/2018 12EXHIBIT P13 COPY OF THE APPEAL FILED BY THE 7TH RESPONDENT BEFORE REVENUE MINISTER DATED 18.09.1985.
EXHIBIT P14 COPY OF THE RELEVANT PAGES OF THE MEMORANDUM GIVEN TO THE PARAVUR TAHSILDAR. EXHIBIT P15 COPY OF THE RESOLUTION NO.15 DATED 19.06.1989 OF KARUMALOOR PANCHAYAT. EXHIBIT P16 COPY OF THE LETTER ISSUED BY THE KARUMALOOR GRAMA PANCHAYAT PRESIDENT ON 04.07.1989. EXHIBIT P17 COPY OF THE PETITION FILED BEFORE REVENUE SECRETARY DATED 16.10.2017.
RESPONDENTS' EXHIBITS: NIL.
True Copy P.S to Judge smp