Kerala High Court
Geethakumari vs Vellarada Special Grade Grama ... on 11 November, 2010
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
FRIDAY, THE 7TH DAY OF DECEMBER 2012/16TH AGRAHAYANA 1934
RP.No. 295 of 2011 (L)
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(JUDGMENT IN WP(C)29919/2010 DATED 11-11-2010
REVIEW PETITIONER/RESPONDENT:
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GEETHAKUMARI
W/O. SURESHKUMAR, PAMMARIKONAM KIZHAKKUMKARA
PUTHENVEEDU, KRISHNAPURAM WARD, CARKODE,
PANCHAMOODU P.O, THIRUVANANATHAPURAM.
BY ADVS.SRI.K.GOPALAKRISHNA KURUP (SR.)
SRI.SUMAN CHAKRAVARTHY
SRI.S.MANU
RESPONDENT/PETITIONER:
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1. VELLARADA SPECIAL GRADE GRAMA PNACHAYATH REPRESENTED
BY ITS SECRETARY, VELLARADA, THIRUVANANATHAPURAM-695032.
ADDL. RESPONDENT 2 TO 12
2. AMBI B, AGED 45, CHARUVILA VEEDU, MALAYANKAVU,
VELLARADA VILLAGE.
3. M.R. RAVEENDRA NATHAN, S/O. RAGAHVA PANICKER, AGED 6,
LAKSHMI BHAVAN, PULIYOORSALA, VELLARADA VILLAGE.
4. B. VIJAYAN, AGED 55 YEARS, VENGODE, KIZHAKKINKARA,
SECRETARY, SREE DHARMASASTHA KSHETHRA TRUST,
REG. NO.1620/2009, VENGODE PANCHAMOODE P.O,
VELLARADA VILLAGE.
5. R. SHEELA, AGED 38, S.R. BHAVAN, THOTTATHIL VEEDU, VENGODE,
PANACHAMOOEDE P.O, VELLARADA VILLAGE.
6. SASIDHARAN R, AGED 57, SHEEJA BHAVAN, VENGODE, VADAKKINKARA,
VELLARADA VILLAGE.
7. DEEPA S.S, AGED 30, AJITH BHAVAN, VENGODE, PANCHAMOODU,
P.O. VELLERADA VILLAGE.
8. ARUNDHATHI P., AJITH BHAVAN, VENGODE PANCHAMOODU P.O,
VELLERADA VILLAGE.
RP.No. 295 of 2011 (L)
9. BHAMA, H.NO. 16/208, CHAMAVILA VEEDU,CHAMAVILA, VENGODE
PANACHAMOODU, P.O. VELLERA DA VILLAGE.
10. SURAJA, H.NO. 16/731, CHAMAVILA VEEDU, CHAMAVILA,
VENGODE PANCHAMOODU, P.O. VELLERA DA VILLAGE.
11. BIJU S, AGED 42, THOTTAHTHIL VEEDU, VENGODE,
PANCHAMOODU, P.O. VELLERADA VILLAGE.
12. K. VIJAYAN, POTTANCHIRAYIL VEEDU, VENGODE PANACHAMOODU,
P.O. VELLERADA VILLAGE.
(ADDL. RESPONDENTS 2 TO 12 ARE IMPLEADED AS PER ORDER DATED
7.12.2012 IN I.A NO.519/2011)
R,R1 BY ADV. SRI.J.S.AJITHKUMAR
R,ADDL.R2 TO 12 BY ADV. SRI.M.R.RAJESH
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 07-12-2012,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
SCL.
RP.No. 295 of 2011 (L)
APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE I: TRUE COPY OF THE SALE DEED OF THE PROPERTY.
ANNEXURE II: TRUE COPY OF THE TAX RECEIPT.
ANNEXURE III: TRUE COPY OF THE REPLY SUBMITTED TO EXHIBIT P6.
ANNEXURE IV: TRUE COPY OF THE REPRESENTATION DATED 6.2.2010 BEFORE THE
DEPUTY DIRECTOR OF PANCHAYAT, THIRUVANANATHAPURAM.
ANNEXURE V: TRUE COPY OF THE APPEAL MEMORANDUM OF THE TRIBUNAL FOR
LOCAL SELF GOVERNMENT INSTITUTIONS IN APPEAL NO.463/2010.
RESPONDENTS' EXHIBITS:
ANNEXURE BI: COPY OF THE MAHAZAR PREPARED BY THE JUNIOR
SUPERINTENDENT, VELLARADA GRAMA PANCHAYATH ON 19-4-2011.
ANNEXURE B2(A): TRUE COPY OF THE PLAINT IN OS NO.851/2011 OF MUNSIFF'S
COURT, NEYYATINKKARA.
ANNEXURE B2(B): TRUE COPY OF COMMISSION APPLICATION
ANNEXURE C: TRUE COPY OF THE REVIEW PETITION IN OS NO.851/2011.
ANNEXURE B2(D): TRUE COPY OF THE COMMISSION REPORT DATED 28/9/2011 IN
OS NO.851/2011 ON THE FILE OF MUNSIFF'S COURT, NEYYATINKARA.
//TRUE COPY//
PA TO JUDGE
Scl.
P.N.RAVINDRAN, J.
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R.P.No.295 of 2011
IN
W.P.(C) No.29919 OF 2010
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Dated this the 7thday of December, 2012
O R D E R
The sole respondent in W.P.(C)No.29919 of 2010 has filed this review petition seeking a review of the judgment delivered by this Court on 11.11.2010 in the said writ petition. The brief facts of the case are as follows:
2. The review petitioner purchased a parcel of land, 18.36 ares in extent, situate in Survey No.632/15 of Kunnathukkal Village, Neyyattinkara Taluk, Thiruvananthapuram District as per Ext.P19 sale deed dated 11.8.2004. She had instituted a suit, O.S.No.5 of 2010 in the Court of the Munsiff of Neyyattinkara, with two individuals on the party array as defendants, alleging that they are attempting to lay a road along the eastern boundary of her lands after encroaching into it. In that suit, she prayed for a permanent prohibitory injunction restraining the defendants from trespassing into her lands or from committing acts of waste therein or from laying a road through her lands.
R.P.No. 295 OF 2011 -2- Along with that plaint, she had filed I.A.No.5 of 2010 for an interim order of injunction in terms of the relief of injunction prayed for in the plaint.
3. The Vellarada Grama Panchayat, the respondent in the review petition, filed W.P.(C)No.29919 of 2010 in this Court challenging Ext.P21 order dated 11.8.2010 passed by the Tribunal for Local Self Government Institutions whereby the Tribunal set aside Ext.P18 notice dated 20.5.2010 issued by the Secretary of the Vellarada Grama Panchayat calling upon the review petitioner to demolish a compound wall put up by her. The Tribunal interfered with the notice issued by the Secretary of the Vellarada Grama Panchayat on the ground that the land alleged to have been encroached upon has not been properly identified. Though the review petitioner was served, she did not enter appearance and file a counter affidavit in the writ petition. After hearing Sri.J.S.Ajith Kumar, learned counsel appearing for the writ petitioner and after considering the pleadings and the materials on record, I held that the Tribunal erred in holding that the Vellarada Grama Panchayat has initiated action against the R.P.No. 295 OF 2011 -3- review petitioner under the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules, 1996, without properly identifying the land encroached upon by the review petitioner. The writ petition was accordingly allowed, Ext.P21 was quashed and Ext.P17 decision of the respondent panchayat and Ext.P18 notice were restored. This Court also directed that if the review petitioner does not vacate the encroached portion by demolishing the compound wall and reconstruct it afresh after leaving out the encroached land, within one month from the date of receipt of a copy of the judgment, it will be open to the writ petitioner to have the encroachment removed with the aid of the police in terms of sub rule (3) of rule 5 of the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules, 1996.
4. The sole respondent in W.P.(C) No.29919 of 2010 has filed this review petition contending that though she had received notice in the writ petition and engaged a lawyer at Thiruvanathapuram to appear on her behalf and make R.P.No. 295 OF 2011 -4- arrangements to defend the writ petition, due to laches on his part, he did not enter appearance and file a counter affidavit. It is stated that since the review petitioner's husband is employed abroad, she could not come to Ernakulam to enquire about the progress of the case, that on 18.01.2011 when she made enquiries about the case, she came to know that the writ petition has been disposed of. She has averred that no road vested in the Vellarada Grama Panchayat passes through the boundary of the lands belonging to her and that except the road register no other document has been produced by the writ petitioner to show that any road vested in the Vellarada Grama Panchayat passes through the boundary of the lands belonging to her. It is stated that the review petitioner has not constructed a new compound wall as alleged and that as per the revenue records, no land or road vested in the Vellarada Grama Panchayat lies on any of the boundaries of the lands belonging to the review petitioner.
5. After the review petition was admitted, the learned counsel on both sides were heard on 28.06.2011. Sri. K. Gopalakrishna Kurup, learned Senior Advocate appearing for the R.P.No. 295 OF 2011 -5- review petitioner contended that the road, which is the subject matter of Ext.P6 notice which resulted in Ext.P17 decision is a private road and the road described as the Pammarikonam- Vengode-Chamavila road does not pass along the boundaries of the review petitioner's lands. Sri. J.S. Ajith Kumar, learned counsel appearing for the Vellarada Grama Panchayat disputed the said submission. In view of the fact that a decision on the merits would require a resolution of the said dispute, by order passed on 28.06.2011, I directed the Secretary, Taluk Legal Services Committee, Neyyattinkara to inspect the lands described in Ext.P19 title deed and to submit a report as to whether the said lands lie by the side of the Pammarikonam-Vengode- Chamavila road. The Secretary, Taluk Legal Services Committee was also directed to report whether access to the lands described in Ext.P19 is through a private pathway or from the Pammarikonam-Vengode-Chamavila road. This Court also directed that the boundaries of the properties described in Ext.P19 shall be ascertained and indicated in a sketch. R.P.No. 295 OF 2011 -6-
6. Pursuant to the said order, the Secretary, Taluk Legal Services Committee, Neyyattinkara conducted an inspection on 15.07.2011 and submitted a report dated 28.07.2011. He has in the report stated that at the time of inspection, the review petitioner, the Secretary and President of the Vellarada Grama Panchayat and the Village Officer, Kunnathukal Village were present. It is stated that from the road coming from Puliyoorsala Junction to Vengode via Pottenchira, the review petitioner has constructed a private road through the property of Sri. Ravindran and that 18.36 ares of land in Resurvey No. 632/15 of Kunnathukal Village belongs to the review petitioner. The Secretary, Taluk Legal Services Committee, Neyyattinkara has also stated that the private road has a width of 3.60 meters and on both sides of the road, a basement is seen built with granite stones for a length of 17.60 metres. He has also stated that for the remaining length of 11.20 meters, the road has a width of 3.70 meters at one end and 3.40 meters at the other end and that there is a slab over a stream to provide access for vehicles to the review petitioner's residence. The Secretary, Taluk Legal R.P.No. 295 OF 2011 -7- Services Committee has also stated that the review petitioner's property does not lie by the side of Pammarikonam-Vengode- Chamavila road, that it lies by the side of a private road constructed by the review petitioner, but the Vellarada Grama Panchayat has in the 'Asthy register' maintained by it from 17.06.2006 described it as Pammarikonam-Vengode-Chamavila road. He has also stated that Pammarikonam is the name of review petitioner's house and Chamavila is the house address of the neighbouring resident, Smt. Bhama. The Secretary, Taluk Legal Services Committee, Neyyattinkara has also reported that on the western and southern sides of the lands belonging to the review petitioner lie the properties of Sri. Raveendran, on the north east lies the property of Smt. Ambika and on the eastern side the property of Smt. Geetha Kumari, that a compound wall constructed of hollow bricks on rubble basement exists on the south, east and northern sides of the review petitioner's lands and that the compound wall along the western side was demolished and a foot path that existed was seen widened. The Secretary, Taluk Legal Services Committee has also stated that R.P.No. 295 OF 2011 -8- from the end of the private road originating from the public road and ending in the review petitioner's property, a pathway 3 feet wide proceeds towards the northern side of the property and that the said pathway has been converted into a 4 meter wide pathway for a length of 33 meters after demolishing the compound wall on the western side.
7. After the report was filed, the writ petitioner filed I.A.No.507 of 2011 to set aside the report dated 28.07.2011 submitted by the Secretary, Taluk Legal Services Committee, Neyyattinkara. Paragraphs 3 and 4 of the affidavit filed in support of the said application are extracted below:-
"From the Puliyoorsala-Vengode road to the property of Geethakumari there is seen a private road having 3.60 meters width and 17.6 meters length at the beginning and on both sides of the road basement are seen built with granite stone; from there the way has 3.70 meters width and 11.20 meters of length at the end of which the width is 3.40 meters. Then there is a slab over the stream (gD^?m) for the purpose of access of vehicles up to the house of the petitioner. The petitioner's house name is seen "Pammarikonam". A car was seen parked on the left side of that house. On both sides of the private road there is paddy field which belongs to Mr.Raveendran, R.P.No. 295 OF 2011 -9- Lakshmi Bhavan, Puliyorsala, Panachamoodu P.O. This private road was constructed by the petitioner up to her house. Before the construction of this road there was a pathway (UxOm) having 3 feets width through the property of Mr. Raveendran which leads to the end of the property of the petitioner, Smt. Geethakumari. After the northern end of the boundary of the petitioner's property that pathway is seen divided into two, one leads to the house of Mr. Sadanandan, Thottathu Veedu, Panachamoodu P.O. And the other leading to the Ayyappa temple situated in the end of this pathway. There was a stream (gD^?m) and it was recorded as Govt. Property (Iay"gI^Am) in the village records.
From the end of the private road, ie the property of the petitioner, Smt. Geethakumari, there was a pathway having 3 feet width towards northern side of the property. That 3 feed width pathway is seen converted into 4 meters width and 33 meters long road after demolishing the compound wall of the petitioner and filling the stream (gD^?m) also by the respondent. The remnants of the wall and fence (NaUagU\_) of the boundary are seen there and a small teak wood tree is also seen there. As per the F.M.B. (Field Measurement Book) register of the Kunnathukal Village Office, Smt. Geethakumari is the owner of the property."
8. It is contended that the road referred to as a private road in the report submitted by the Secretary, Taluk Legal R.P.No. 295 OF 2011 -10- Services Committee is a public road maintained by the Vellarada Grama Panchayat from time immemorial and it is the only access to the property of other residents as well as to the devotees worshiping at Sree Dharmasastha Temple situate about a kilometer away. It is also stated that the Secretary, Taluk Legal Services Committee has described the public road as a private party without making any enquiry with the nearby residents or the owners of the lands situate adjacent to the disputed lands and that he has done so to give unfair advantage to the review petitioner. It is also stated that the Secretary, Taluk Legal Services Committee has ignored the existence of a pump house, Anganwadi building and several residences by side of the public road.
9. After the objections were filed, 12 neighbouring land owners filed I.A.No.519 of 2011 seeking impleadment as additional respondents 2 to 13 in the review petition. In the affidavit filed in support of the said application, it is contended that the disputed road is a public road from time immemorial and it leads to the Ayyappa Temple situate about 1 km away. It is R.P.No. 295 OF 2011 -11- contended that several persons in the locality including the persons seeking impleadment have properties on either side of the said public road which has a uniform width of 3.48 meters. It is also stated that though the review petitioner had filed O.S.No.5 of 2010 in the Court of the Munsiff of Neyyattinkara and had obtained Ext.P2 order of injunction and demolished the old mud wall and started construction of a compound wall encroaching upon the public road, the suit was dismissed as withdrawn after the compound wall was illegally constructed encroaching upon the public road. They contended that the report filed by the Secretary, Taluk Legal Services Committee does not set out the correct state of affairs and therefore, it cannot be relied on. The petitioners in I.A.No.507 of 2011 have also filed I.A.No.620 of 2011 and produced along with it as Annexure B2(a), a copy of the plaint in O.S.No.851 of 2011 on the file of the Court of the Munsiff of Neyyattinkara filed by the Sree Dharmasastha Trust against the review petitioner for a permanent prohibitory injunction restraining her from trespassing into the public road and from putting up any compound wall therein. A copy of the R.P.No. 295 OF 2011 -12- application for appointment of an Advocate Commissioner filed therein is produced as Annexure B2(b), the objections filed by the review petitioner to the said application is produced as Annexure B2(c) and a copy of report submitted by Advocate Commissioner is produced as Annexure B2(d). Relying on the report submitted by the Advocate Commissioner it is contended that disputed road is a public road. It is relevant in this context to note that Sri. M.R. Raveendra Nathan, the second petitioner in I.A.No.519 of 2011 and I.A.No.620 of 2011 is none other than the review petitioner's neighbour referred to in the report submitted by the Secretary, Taluk Legal Services Committee. After the objections to the report of the Secretary, Taluk Legal Services Committee, Neyyattinkara and the aforesaid two interlocutory applications were filed, further attempts were made to settle the dispute by referring the parties to mediation. The said attempts failed. The review petition was therefore heard today on the merits.
10. I heard Sri. K. Gopalakrishna Kurup, learned Senior Advocate appearing for the review petitioner, Sri. J.S. Ajith Kumar, learned counsel appearing for the respondent/writ R.P.No. 295 OF 2011 -13- petitioner and Sri. M.R. Rajesh learned counsel appearing for the petitioners in I.A.No.519 of 2011 and I.A.No.620 of 2011. I have also gone through the pleadings and the materials on record. The main dispute in this review petition is whether the Pammarikonam-Vengode-Chamavila road is a public road vested in the Vellarada Grama Panchayat or it is a private road. The Vellarada Grama Panchayat has taken the stand that it is a public road vested in it and is maintained by it. By Ext.P17 it had decided to call upon the review petitioner to demolish the compound wall newly put up by her on the western boundary of her lands on the ground that she had encroached into the said public road. That order was set aside by the Tribunal for local self Government Institutions by Ext.P21 order on the ground that the property has not been correctly identified. While disposing of the writ petition after hearing the learned counsel for the writ petitioner alone (because of the fact that the review petitioner did not appear), this Court proceeded on the basis that in Ext.P16 reply submitted by the review petitioner to Ext.P15 notice pursuant to which Ext. P17 decision was taken, she had no case R.P.No. 295 OF 2011 -14- that she is not in a position to identify the land and that her only case was that there is no panchayat road in existence. This Court also proceeded on the basis that description of the western boundary in Ext.P19 document of title deed is erroneous. The materials now on record in the review petition disclose that there is a serious dispute between the review petitioner on the one hand and the Vellarada Grama Panchayat and the neighbouring residents on the other, as regards the question whether the disputed road is a public road vested in the panchayat and managed by it or it is a private road belonging to the petitioner and laid by her at her own expense. The said dispute can in my opinion be decided only in a properly constituted suit. Such a suit has already been filed by the Sree Dharmasastha Kshethra Trust as O.S.No.851 of 2011 on the file of the Court of the Munsiff of Neyyattinkara. The review petitioner is the sole defendant in the said suit. The stand taken by the plaintiff in O.S.No.851 of 2011 is in favour of the Vellarada Grama Panchayat. Such being the situation, I am of the opinion that the proper course would be to leave open the contentions of both R.P.No. 295 OF 2011 -15- sides as regards the disputed pathway, and reserve liberty with them to have the dispute resolved in O.S.No.851 of 2011 presently pending in the Court of the Munsiff of Neyyattinkara or if the review petitioner so chooses by instituting a suit in the court of competent jurisdiction.
The review petition is accordingly disposed of with the observation that nothing contained in the judgment sought to be reviewed will stand in the way of the review petitioner or the Vellarada Grama Panchayat from having the dispute regarding the pathway resolved by the competent civil court. It is also clarified that in the event of the review petitioner succeeding in the civil court, nothing contained in the judgment in W.P.(C) No.29919 of 2010 will stand in her way from enjoying the fruits of the decree passed by the civil court.
P.N.RAVINDRAN, JUDGE.
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