GOPINATHAN Vs. PERUVEMBA GRAMA PANCHAYAT

JUDGEMENT

(1.) The issues involved in these two writ petitions are intrinsically connected and the writ petitions are being heard and disposed of together.

(2.) The petitioner owns 9 cents of land in Re-Sy.No.386/2010 of Peruvembu Village. He has constructed a residential building therein. The property was purchased as per document No.369/1996 of SRO, Koduvayoor. There is a pathway in front of the property, which according to the petitioner, is having a width of 2.5 Metres. It is stated that on the other side of the pathway, there is a paddy field belonging to several persons, including the 4th respondent. It is further submitted that the pathway leads to the property of the 4th respondent and other residents. The contention of the petitioner is that the pathway does not belong to the Panchayat and hence it does not find a place in the Road Register of the Panchayat. According to the petitioner, the 4th respondent tried to take water from the canal lying on the northern side of the petitioner's property abutting the Olassery- Palathully Road, for cultivating his paddy fields on the southern side through the mud road, which was questioned by the petitioner and taken up as complaints before the Panchayat, Village Office as well as the District Collector, Palakkad. According to the petitioner, water was being taken through the pathway which results in erosion of the soil and reduced the width of the pathway. The petitioner submits that he had suggested that a pipe should be laid on the side of the pathway to take the water for the purpose of irrigation of the paddy fields. Ext.P1 is the complaint dtd. 19/5/2017 preferred before the Village Officer. Ext.P2 is the complaint dated 213.2018 preferred before the Panchayat by the 4th respondent, who is the petitioner in W.P.(C)No.14738 of 2021. According to the 4th respondent, the petitioner has trespassed into the pathway and constructed a compound wall, and made illegal constructions on his property. The petitioner submits that the Panchayat Committee on 22/9/2018 had in its decision Ext.P3, found the complaint of the 4th respondent justified, that the petitioner has trespassed into the pathway, and that the branches of the trees standing on the property of the petitioner are creating obstacles to the taking of tractors and other harvesting machines for the purpose of irrigation. It was also decided to take necessary action. According to the petitioner, even though action was being taken on the complaint of the 4th respondent, no action was being taken on the complaint which had been preferred by him. The 2nd respondent on 24/12/2019 issued Ext.P4 notice to the petitioner directing him to remove the obstructions created in the Panchayat Road and report the same to the office of the 2nd respondent, failing which, action will be taken as per Rule 5 of the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules, 1996 (hereinafter referred to as the 1996 Rules). The petitioner submitted Ext.P5 objection in which he had also questioned the jurisdiction of the Panchayat. The 4th respondent filed W.P.(C)No.3762 of 2020 before this Court, which was disposed of by Ext.P6 judgment. This Court, without going into the merits of the controversy in the matter, ordered the competent authority of the Panchayat to issue a notice of hearing to the petitioners as well as respondents 6 to 8 in the writ petition and after hearing the parties, to render a considered decision in the matter in accordance with the law, without delay. This Court directed that the specific contention of the petitioner and others in this writ petition that in view of the pending civil suit, the Panchayat does not have the competence to implement its resolution should also be considered. The petitioner submits that he had already approached the Munsiff Court, Palakkad seeking an order of injunction against the highhanded activities of the 4th respondent and that there was also a counter case pending before the same court. The copy of the judgment in O.P.(C).No.1053 of 2020 has been produced as Ext.P7, which says that the 4th respondent shall not discharge water into the pathway by putting an opening in the 'chal'. The petitioner has also produced Ext.P8 which is the report of the Commissioner filed in O.S.No.261 of 2019. The petitioner submits that the property of the petitioner is covered by a valid sale deed which refers to the boundary on all the four sides and any dispute regarding the same can only be determined by an appropriate civil court and that the Panchayat authorities cannot take a decision on it. It is submitted that the boundary of the petitioner's property is a 40 year old fencing which cannot be disturbed by the Panchayat, or any persons based on any report obtained behind the back of the petitioner without any authority. The writ petition has been filed praying to quash Ext.P10 order whereby it has been directed to demolish the construction of the truss work on the petitioner's property. The petitioner has also prayed for a direction to the 2nd respondent to pass orders on the complaint raised by the petitioner regarding the drawing of water through the road lying in front of the petitioner's house and for a declaration that the 2nd respondent has no authority to pass any orders touching the title of the petitioner's property as resolved by the Panchayat Committee as per Ext.P3 resolution. The petitioner has thereafter filed I.A.No.2 of 2021 producing Ext.P11, which is an order dtd. 24/3/2021 wherein the 2nd respondent has directed the removal of the fence within a period of 15 days. The order is issued in exercise of the powers under the 1996 Rules.

(3.) The 4th respondent who is the petitioner in W.P. (C)No.14738 of 2021 has filed a counter affidavit. It is stated that the road in front of the petitioner's property is a public road having a width of 4.1 metres and a length of about 150 metres, through which, tractor, harvesting machine, lorry and other conveyances for the purpose of agricultural operations are being taken. According to the 4th respondent, the petitioner after purchase of the 9 cents of property abutting the road, started encroaching into the road in such a manner that it affects the ingress and egress of the 4th respondent and others. It is stated that overhanging branches of the trees standing in the property of the petitioner also cause hindrance to the movement through the road. Ext.R4(a) report of the Taluk Surveyor has been produced to show that there are encroachments by the petitioner and one Chandran and Haridas. Ext.R4(b) notice dtd. 13/2/2019 is produced, which has been issued by the 2nd respondent to the petitioner regarding the encroachment. The 4th respondent has also produced the plaint in O.S.No.261/2019 filed by the petitioner as Ext.R4(c) and the order dtd. 17/8/2019 in I.A.No.1494 of 2019 in the suit as Ext.R4(d). Ext.R4(e) is the judgment in C.M.A.No.82 of 2019 issued by the Additional District Court-V, Palakkad against Ext.R4(d) order. It is the contention of the 4th respondent that in terms of Sec. 169 of the Kerala Panchayat Raj Act, 1994, public roads vest in the Panchayat and it is the duty of the Panchayat to properly maintain the roads vested in it as per Sec. 170 of the Act. It is submitted that under Sec. 220 of the Act, no encroachment shall be made on such roads. Rule 4 of the 1996 Rules has been cited to say that the Panchayat would be the absolute authority to evict unauthorised occupants from the land vested in the Panchayat. It is hence submitted that it is within the power of the Panchayat to evict any encroacher. According to the 4th respondent, the width of the way which has been shown as 2.5 metres has been shown with an ulterior motive and the actual width is 4.1 metres. It is further submitted that the disputed road is very much there in the records of the Panchayat.