IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 4285 of 2008(I)
1. N.N. SAIDALAVI HAJI, AGED 67 YEARS,
... Petitioner
2. A.P. GOPALAKRISHNA MENON,
3. P. HAMZA, S/O. KOYASSAN,
4. T. SURENDRAN, S/O. KARAPPANKUTTY,
5. A. SHAHUL HAMEED,
6. C.P. ASHOKAN, S/O. PARAMESHWARAN,
7. C.V. SUNEERA,
8. ENNISSERI MAMMATU, W/O. ABOOBACKER,
9. V.M. MOIDEEN, S/O. MOHAMMED HAJI,
10. YABU, S/O. UMMER,
Vs
1. THE SECRETARY,
... Respondent
2. THE STATE OF KERALA,
For Petitioner :SRI.K.K.MOHAMED RAVUF
For Respondent :SRI.HARISH R. MENON
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :11/02/2008
O R D E R
PIUS C.KURIAKOSE, J.
-------------------------
W.P.(C) No. 4285 of 2008
---------------------------------
Dated, this the 11th day of February, 2008
J U D G M E N T
Ext.P1 eviction notice issued to the 1st petitioner and similar
notices issued to the other petitioners, who are tenants of various
shop rooms situated within the area of the 1st respondent
Panchayat, is under challenge in this writ petition on various
grounds. It is contended that these notices, in as much as, they
granted only 24 hours time to surrender the premises and do not
give opportunity to file objections is per se, violative of Rule 5 of
Kerala Panchayat Raj (Removal of Encroachment and Imposition
and Recovery of Penalty for Unauthorised Occupation) Rules 1996.
It is contended that Ext.P1 and similar notices have been issued by
the Panchayat not on its own but as directed by the District
Collector. Placing reliance on the judgment of this Court in
Mohammedkutty Vs. Kunhikoya Haji, reported in 1985 KLT
69, it is contended that the Panchayat Secretary, who is the
statutory authority, is expected to exercise the powers statutorily
vested on him on his own and not on the dictation of the District
Collector or anybody else. It is also contended that Rules 4 & 5 of
the Kerala Panchayat Raj (Removal of Encroachment and Imposition
WP(C) No. 4285/2008
-2-
and Recovery of Penalty for Unauthorised Occupation) Rules 1996
are beyond the jurisdictional competence of the Government, since
Section 254 (2) (xxix) gives power to the Government to make
Rules for imposition and recovery of penalties for the unauthorised
occupation of public roads or other land vested in or belonging to
the Panchayats and not in respect of buildings.
2. The Panchayat has filed a detailed counter affidavit and I
have heard the submissions of Shri.K.K.Mohamed Ravuf – learned
counsel for the petitioner, Shri. Harish.R.Menon – learned counsel
for the Panchayat and also the learned Government Pleader,
Shri.K.J.Mohamed Anzar.
3. Having regard to the submissions addressed, I find merit
in the submission of the learned counsel for the petitioner that
Ext.P1, in so far as, it grants only 24 hours notice to the petitioners
for surrendering the premises is violative of Rule 5. Learned
counsel for the Panchayat endeavored to sustain Ext.P1 by referring
to Exts.R1(c) and R1(d). But it is seen that Exts.R1(c) and R1(d)
are addressed to the land lord of the building, while the rules
contemplate issuance of the notices to the occupants of the
buildings. The buildings are admittedly occupied by the petitioners,
WP(C) No. 4285/2008
-3-
who are tenants under the land lords. Ext.P1 does not give any
opportunity to the occupants to file objections under Rule 4 & 5,
which contemplate filing of objections against notice, consideration
of the objections by the Panchayat so filed and passage of orders
considering the objections on their merits.
4. Learned counsel for the Panchayat would refer to
Exts.R1(f) representation submitted by the petitioners before the
Secretary to Ext.R1(g) representation submitted by the Kerala
Vyapari Vyavasayi Ekopana Samithi, Tarur unit representing the
petitioners and also to Ext.R1(i). The learned counsel argued that
what the law contemplates is only notice to the occupants. These
representations, according to him, will show that the petitioners
were having actual notice, and therefore, this Court will not be
justified in granting further opportunity to the petitioners for filing
objections. I do not agree. Rule 5 contemplates written notices to
the occupants giving details of the Puramboke land allegedly
encroached upon. Ext.P1 and similar notices issued by the
Panchayat do not satisfy the requirements of Rule 5. Since the
identity of the properties allegedly encroached upon is not under
dispute and is shown in Ext.P1 and like notices, I am inclined to
WP(C) No. 4285/2008
-4-
grant only time to the petitioners for filing written objection to
Ext.P1 and like notices. Accordingly, I dispose of the writ petition in
the following terms. The petitioners will file objections to Ext.P1
within a period of 10 days from today. If objections are received
from the petitioners within the time allowed as above, the
Panchayat will hear the petitioners and pass orders on the
objections within another 10 days from that date. Once orders are
passed, the orders will be communicated to the petitioners. It is
made clear that other grounds raised by the petitioners have not
been upheld by this Court. Those grounds are turned down.
(PIUS C.KURIAKOSE, JUDGE)
jg