LILLY Vs. SECRETARY TO GOVERNMENT

JUDGEMENT

(1.) The subject matter of this writ appeal is a road which the Manjalloor Grama Panchayat claims is a public road and the appellants claim the same to be part of their private properties. The appellants claim that appellants 1 and 2 are the owners of the land in different sub divisions in Survey No. 552 of Manjalloor Grama Panchayat in Ernakulam District which they claimed to have obtained by sale deed in 1995. The lands were originally paddy fields which were later converted into dry lands. The local residents were using a pathway of about 6 ft. wide on the eastern side of the properties. The appellants claim was that part of their properties were surrendered by appellants 1 and 2 to widen the said pathway on the request of the public. While so, some of the members of the public wanted the existing pathway to be straightened through the middle portion of the land belonging to appellants 1 and 2. Considering the public interest involved, appellants 1 and 2 agreed to surrender some of their properties on the belief that they can take back their lands which they had admittedly permitted to put to use as a pathway. According to the appellants, the said pathway had never vested in the Panchayat in accordance with law nor has any intimation been sent to the appellants 1 and 2 to that effect. Though the public were using the road, the land remained in the same survey number in the title and ownership of the appellants 1 and 2, contend the appellants. The appellants would further contend that no vesting has taken place in respect of that pathway in the Panchayat, in the absence of any notification in terms of S.169 of the Kerala Panchayat Raj Act. At that time, one N. J. George and Joshi Sebastian attempted to trespass into the properties of the appellants 1 and 2 in respect of which a suit was filed before the Munsiff's Court, Muvattupuzha as OS No. 192/2005, which is pending and in which an order of injunction has been passed restraining the said two persons from trespassing upon the property of appellants 1 and 2 and destroying the cultivation therein. The said N. J. George is the 4th respondent in this writ appeal.

(2.) While so, the Secretary of the 3rd respondent Grama Panchayat issued a letter to the appellants directing restoration of the old pathway which the appellants 1 and 2 had encroached into. The appellants filed appeal before the Panchayat Committee in which the Panchayat passed Ext. P1 resolution resolving to release to appellants 1 and 2 the property covered by the old pathway as and when they surrender property for the new pathway. That resolution of the Panchayat was challenged before this Court in WP (C) No. 15907/2005 by the 5th respondent and another in which appellants 1 and 2 were respondents. In that writ petition, by Ext. P2 judgment, this Court directed the Deputy Director of Panchayats to decide the issue involved after hearing the parties, which has become final since nobody took up the same in appeal. Pursuant to the said judgment, the Panchayat Deputy Director, Ernakulam passed Ext. P3 order wherein the Deputy Director held that the old pathway was a public road which had already vested in the Panchayat under S.169 of the Kerala Panchayat Raj Act and appellants 1 and 2, who are the owners of adjacent properties have encroached into the said public road. Since in order to transfer properties vested in the Panchayat, Gazette notification under S.169(4) is necessary, the encroachment by appellants 1 and 2 is unauthorised and illegal. Accordingly, the Deputy Director directed appellants 1 and 2 to restore the pathway, which was encroached into by them, within three months. There was a further direction that for the present, all expenses for restoring the said public road shall be met from the Panchayat fund and such expenses together with the penalty under the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules, 1996 should be realised from appellants 1 and 2. Ext. P3 was under challenge in the writ petition.

(3.) The 3rd respondent Panchayat had filed a counter affidavit in the writ petition. According to them, the road in question is Madakkathanam Arakkathazham Pannippilly road, which is maintained by the Panchayat and used by the public. This road is the eastern boundary of the property of appellants 1 and 2 which they purchased as per sale deed No. 806/1995 of Kallurkad SRO. In the said sale deed, in the description of the properties, eastern boundary of the property is shown as 'road'. They would submit that appellants 1 and 2 have trespassed into the said road used by the public, maintained by the Panchayat, pursuant to which the local people filed a complaint before the Panchayat. On enquiry conducted by the Panchayat, the Panchayat came to the conclusion that appellants 1 and 2 have annexed the road, encroaching into the same and cultivated the same with rubber saplings. Therefore, Ext. R3(a) notice dated 09/05/2005 was issued to appellants 1 and 2 to remove the encroachment and restore the road to its original position. Further, the Deputy Director of Panchayats, on enquiry through audit supervisor, found that appellants 1 and 2 had, in fact, committed trespass and destruction of the Panchayat road. Water supply to Ward Nos. 5, 6, 7 and 8 of Manjalloor Grama Panchayat was being effected through the pipeline drawn through this road for a length of 120 meters and immediately after the trespass, the Assistant Executive Engineer of the Kerala Water Authority, by Ext. R3(b) letter dated 25/05/2005, intimated the 3rd respondent Panchayat about the trespass. It is while matters were thus remaining that WP (C) No. 15907/2005 was filed for implementing Ext. R3(a) notice and for other reliefs. All these matters were placed on record in the said writ petition by Ext. R3(c) counter affidavit filed in that writ petition. It is thereafter that this Court passed Ext. P2 judgment directing the Deputy Director of Panchayat to decide the issue, which resulted in Ext. P3 order. Pursuant to Ext. P3 order, the Panchayat unanimously took a decision to restore the Panchayat road to its original position in its committee meeting held on 31/01/2006. The 3rd appellant, who is a member of the same Panchayat, also participated in the Panchayat Committee meeting held on 31/01/2006. In spite of the said unanimous decision, he has joined hands with the 1st and 2nd appellants in filing the writ petition and this writ appeal against the Panchayat in which he is a member despite having been a party to Ext. R3(e) decision. The unanimous decision of the Panchayat Committee is also produced as Ext. R3(d) and the attendance register of the members who participated in the meeting is produced as Ext. R3(e) in which the 3rd appellant has also signed. The extract from the road register of the Panchayat is Ext. R3(f) in which item 66 is the road which is the subject matter of this writ appeal. Ext. R3(g) is the sale deed no. 806/05 by which appellants 1 and 2 purchased their properties in which the eastern boundary is mentioned as 'road'. On these allegations, the Panchayat strongly contested the writ petition. The 5th respondent also filed a counter affidavit supporting the Panchayat.