VINCENT PETER v. CHIRAYINKEEZHU GRAMA PANCHAYAT

BY ADVS. SRI.T.K.ANANDA PADMANABHAN SRI.M.BALAGOVINDAN SRI. M.R. SASITH PANICKER – R1 SRI. B.S. SYANMABNTAK, GP WP(C) NOS.17388 OF 2015 & 28927 OF 2016 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.02.2024, ALONG WITH WP(C).28927/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NOS.17388 OF 2015 & 28927 OF 2016 3 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 7TH DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945 WP(C) NO. 28927 OF 2016 PETITIONER: BHADRAN MANAPPURAM HOUSE, KADAKAM P.O., PALANTHURATH, SARKARA VILLAGE, CHIRAYINKEEZHU TALUK BY ADVS. SRI.M.BALAGOVINDAN SRI.T.K.ANANDA PADMANABHAN RESPONDENTS: 1 2 3 4 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001 DISTRICT COLLECTOR OFFICE OF THE DISTRICT COLLECTOR, CIVIL STATION, KUDAPPANAKKUNNU, THIRUVANANTHAPURAM-695001 THASILDAR OFFICE OF THE THASILDAR, ATTINGAL P.O, THIRUVANANTHAPURAM-695001 CHIRAYANKIZH GRAMA PANCHAYAT WP(C) NOS.17388 OF 2015 & 28927 OF 2016 4 5 6 REPRESENTED BY ITS SECRETARY, CHIRAYINKIZH GRAMA PANCHAYATH OFFICE, CHIRAYINKIZH P.O., THIRUVANANTHAPURAM-695001 VINCENT PETER PALANTHURATH, SARKARA VILLAGE, CHIRAYINKIZH TALUK, THAIKOOTTAM, KADAKAM P.O. - 695014 SUB INSPECTOR OF POLICE OFFICE OF THE SUB INSPECTOR OF POLICE, CHIRAYINKIL-695014 BY ADVS. SRI.BIJU BALAKRISHNAN SRI.R.T.PRADEEP SRI.S.V.PREMAKUMARAN NAIR SRI RIYAL DEVASSY, GP SRI. M.R. SASITH PANICKER - R4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.02.2024, ALONG WITH WP(C).17388/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NOS.17388 OF 2015 & 28927 OF 2016 5 P.V.KUNHIKRISHNAN, J. ----------------------------------------------------------- W.P.(C) Nos.17388 of 2015 & 28927 of 2016 ------------------------------------------------------------- Dated this the 07th day of February, 2024 JUDGMENT These two writ petitions are connected and therefore, I am disposing of these two writ petitions by a common judgment. I will narrate the facts in WP(C) 17388/2015 first.

2. The petitioner is the absolute owner in possession of 1.65 Ares in survey No.758/12 and 4.5 Ares comprised in survey No. 758/12(1) of Sharkara Village as per sale deeds No. 783/2007 and 2406/2008. It is submitted that both the properties are lying as a compact plot wherein the petitioner constructed his residential house and residing therein with his family. According to the petitioner, a water WP(C) NOS.17388 OF 2015 & 28927 OF 2016 6 channel run through his property to drain out rain water during monsoon coming from the properties on the north of his property. The rain water thus passes through the water channel further run through the properties on the south of the property of the petitioner. It is also submitted that the petitioner constructed granite side wall on either sides of the water channel running through his property and covered with slabs about 7 years back with the consent and participation of the 5th respondent because, the rain water is mainly coming by overflowing from the pond in the property of 5th respondent. It is submitted that the water channel is maintained as such with no obstruction for passing of rain water. The 5th respondent made a complaint alleging that water channel passes through the property of petitioner was filled up by petitioner causing obstruction to rain water and thereby WP(C) NOS.17388 OF 2015 & 28927 OF 2016 7 damaging his property and hence sought proceedings to restore the water channel by including under the 'Operation Anantha' in exercise of powers conferred under the Kerala Land Conservancy Act. It is the case of the petitioner that without issuing notice to petitioner the 2nd respondent by including the complaint of 5th respondent under the 'Operation Anantha', directed to restore the water channel to its original form. According to the petitioner there is no Government land in the property of petitioner to initiate proceedings under the Kerala Land Conservancy Act and therefore, no proceeding could be initiated by the 2nd respondent in the nature of Exts.P3 and P5. The water channel running through his property is at the best a water course vested with the 1st respondent under Section 218 of the Kerala Panchayath Raj Act, 1994 and hence the proceedings as evident by Exts.P3 and P5 are unsustainable, is the WP(C) NOS.17388 OF 2015 & 28927 OF 2016 8 submission. Hence this writ petition is filed with the following prayers; “i. To issue a writ of certiorari or any other appropriate writ, order or direction calling upon the records pertaining to Exts. P3 and P5 and to quash the same and all proceedings pursuant to thereon; ii. To issue a writ of mandamus or any other appropriate writ, order or direction to respondents 1 to 4 to refrain from proceedings pursuant to Exts. P3 and P5: iii. Such other reliefs which this Hon'ble Court may deem fit and proper in the interest of justice.”

3. WP(C) No.28927/2016 is filed with the following prayers; WP(C) NOS.17388 OF 2015 & 28927 OF 2016 9 a. Issue a Writ of Mandamus or other appropriate writ direction or order directing the 4th respondent to consider and pass appropriate orders in Exhibit-P9 on the basis of Exhibit-P5 and P7 within a time limit fixed by this Hon'ble Court with a further direction to the 6th respondent to implement the same. b. Grant such other reliefs that are deemed fit and proper in the circumstances of the case.”

4. This writ petition is filed by the 5th respondent in WP(C) No.17388/2015 to consider Ext.P9 produced in that case, in the light of Exts.P5 and P7 which are Exts.P3 and P5 in WP(C) 17388/2015.

5. Heard the learned counsel appearing for the petitioners in these cases and also the learned counsel for the respondents including the learned Government WP(C) NOS.17388 OF 2015 & 28927 OF 2016 10 Pleader.

6. The short point raised by the petitioner in WP(C) 17388/2015 is that Exts.P3 and P5 are issued without giving an opportunity of hearing to the petitioner. This Court perused Exts.P3 and P5. A perusal of Exts.P3 and P5 would not show that it is an order passed after giving an opportunity of hearing to the petitioner.

7. Therefore, I am of the considered opinion that, without going through the merit of the case, Exts.P3 and P5 in WP(C) 17388/2015 can be set aside and there can be a direction to the District Collector, Thiruvananthapuram to reconsider the matter after giving an opportunity of hearing to the petitioners in these writ petitions. Therefore, these writ petitions are disposed of with the following directions; WP(C) NOS.17388 OF 2015 & 28927 OF 2016 11

1. Exts.P3 and P5 in WP(C) No.17388/2015 are set aside.

2. The District Collector, Trivandrum is directed to reconsider the matter, after giving an opportunity of hearing to the petitioners in these writ petitions and other affected parties, if any, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of copy of this judgment.

3. The petitioners in these writ petitions will produce a certified copy of the judgment along with a copy of the writ petition before the District Collector, Trivandrum for compliance of the directions. Sd/- P.V.KUNHIKRISHNAN JUDGE WP(C) NOS.17388 OF 2015 & 28927 OF 2016 12 APPENDIX OF WP(C) 28927/2016 PETITIONER EXHIBITS EXHIBIT:P1 EXHIBIT:P2 EXHIBIT:P3 EXHIBIT:P4 EXHIBIT:P5 EXHIBIT:P6 EXHIBIT:P7 EXHIBIT:P8 EXHIBIT:P9 TRUE COPY OF THE RECEIPT GIVEN BY THE VILLAGE OFFICER TRUE COPY OF THE JUDGMENT IN O.S.1226/1108 M.E.(1933 A) BEFORE THE ATTINGAL TEMPORARY MUNSIFF COURT TRUE COPY FO THE COMPLAINT TO THE CHIEF MINISTER DATED 5/1/2015 TRUE COPY OF THE NOTICE ISSUED FROM THE OFFICE OF COLLECTOR TO THE VILLAGE OFFICER, SARKARA DATED 1/2/2015 TRUE COPY OF THE REPORT OF VILLAGE OFFICER DATED 9/3/2015 TRUE COPY OF THE NOTICE ISSUED BY THE COLLECTOR DATED 24/4/2015 TRUE COPY OF THE ORDER OF COLLECTOR TRANSMITTED THROUGH THE THASILDHAR, CHIRAYINKIZHU DATED20/5/2015 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER TO THE THASILDAR, CHIRANYINKIZHU TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER TO THE 4TH RESPONDENT DATED 1/6/2016 EXHIBIT:P10 TRUE COPY OF THE COMPLAINT TO THE STATION HOUSE OFFICER, CHIRAYINKIZHU WP(C) NOS.17388 OF 2015 & 28927 OF 2016 13 APPENDIX OF WP(C) 17388/2015 PETITIONER EXHIBITS P1 : TRUE COPY OF THE TAX RECEIPT DATED 5-12-2013 OF THE PROPERTY OF THE PETITIONER. P2 : TRUE COPY OF THE POSSESSION CERTIFICATE DATED 3-12-2014 ISSUED BY 4TH RESPONDENT. P3 : TRUE COPY OF THE ORDER DATED 20-5-2015 BY 2ND RESPONDENT. P4 : TRUE COPY OF THE OBJECTION DATED 27-5-2015. P5 : TRUE COPY OF THE NOTICE DATED 3-6-2015 BY 3RD RESPONDENT. RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE