The proceedings issued by the third respondent Panchayat directing the petitioner to demolish the building constructed by him in the concerned property stating that the said construction has been effected in the 'puramboke' land and that the same is liable to be demolished in the light of Ext.P5 order passed by the 5th respondent/Ombudsman, is under challenge in this writ petition.
2. The case of the petitioner is that an extent of 2 cents of land comprised in Re. Sy.No.460/3/1 of Manoorkara Village was purchased by him as per Ext.P2 sale deed dated 06.02.2001 of the SRO, Aryanad for valuable sale consideration. Ever since the purchase of the property, the petitioner was enjoying the same with exclusive possession, remitting land tax and property tax, as borne by Exts.P1 and P2. Ext.P3 is the location sketch in respect of the property concerned.
3. The grievance of the petitioner is that the respondents 6 and 7 are having some properties behind the property of the petitioner and that the said respondents have constructed some shop rooms therein. So as to have direct access from the road, the said respondents made some clandestine arrangements to cause demolition of the shop rooms of the petitioner, contending that the petitioner has effected the construction in the 'Puramboke' land.
4. Apprehending untoward incidents at the hands of the sixth respondent/Reghunadhan, the petitioner approached the competent civil court by filing O.S.No.92 of 2001, wherein an interim order has been passed in favour of the petitioner. In view of the turn of events, the father of the defendant in the suit, i.e. 6th respondent herein approached the 5th respondent/Ombudsman by filing a complaint, alleging encroachment into the 'Puramboke' property and to cause demolition of the construction effected by the petitioner . In the said proceedings, the Panchayat took a stand that there was encroachment and that the construction had to be demolished. Deprecating the lapse on the part of the Panchayat, a positive direction was given by the 5th respondent/Ombudsman vide Ext.P5 order in O.P.(SM)631/2000. Met with the situation, the petitioner approached this Court by filing O.P.No.23811 of 2001, wherein Ext.P6 judgment was passed directing the Panchayat to look into the matter and pass appropriate orders after hearing both the sides, specifically making it clear that merit of the contentions raised in the O.P. was not considered. Inspite of the specific direction given by this Court, the matter was not considered by the Panchayat. While so, steps were taken to cause demolition of the property of the petitioner, which made him to approach this Court again by filing OP.20832 of 2001, wherein Ext.P7 interim order was passed. In view of other coercive proceedings, the petitioner approached this Court also by filing W.P(C) 9302 of 2002 , which was originally dismissed for default, as per the judgment dated 01.01.2008.
5. Referring to Ext..P5 order passed by the Ombudsman and dismissal of O.P.9302 of 2002, Ext.P11 notice was issued by the Panchayat, directing the petitioner to effect demolition of the building/shop rooms and also to show cause, if any explanation was to be offered, within the specified time as mentioned therein. This was in furtherance to the earlier proceedings dated 01.04.2002, a copy of which has been produced as Ext.P8. This made the petitioner to approach this Court challenging the correctness and sustainability of Exts.P5, P8 and P11.
6. No counter affidavit has been filed by any of the respondents. Heard both the sides in detail.
7. The learned Counsel for the petitioner submits that the proceedings pursued by the Panchayat are per se wrong and illegal in all respects. It is a fact that O.P.9302 of 2002 was originally dismissed for default, observing that the proceedings issued by the Panchayat could not have been successfully challenged by the petitioner without challenging the basic order passed by the Ombudsman. But subsequently, on filing MJC in the OP, it was made clear by this Court that, it would be open for the petitioner to challenge the proceedings of the Ombudsman as well. It was accordingly that the petitioner sought to challenge Ext.P5 order, besides challenging the order of the Panchayat.
8. During the course of hearing, it is brought to the notice of this Court that there is absolutely no discussion whatsoever with regard to the direction issued by the 5th respondent/ Ombudsman to demolish the shop rooms of the petitioner. The only reference made therein is to the proceedings of the authorities of the Panchayat to cause demolition of the structure, virtually conceding the case put up by the contesting respondents as to the alleged encroachment into the 'puramboke' land. On tracing the facts and figures, particularly in the light of Ext.P7 interim order in OP.20832 of 2001, it is seen that the said OP was disposed of by this Court as per the judgment dated 11.10.2006 referring to the pendency of O.S 92 OF 2001 before the Munsiff's Court, Nedumangad, setting the parties at liberty to pursue the matter/proceedings before the Trial Court. It was also specifically observed therein, that in view of pendency of issue before the civil court, it was unnecessary for the second respondent therein(Ombudsman) to proceed with Ext.P8 complaint preferred by the 4th respondent therein, who happens to be the 6th respondent in the present writ petition. But the fact remains that the complaint had already been finalised by the Ombudsman by passing Ext. P5 order as early as on 24.01.2002, which fact was not brought to the notice of this Court, when judgment was passed in O.P.20832 of 2011 ( dated 11.10.2006).
9. After hearing both the sides including the learned Government Pleader, this Court finds that, if at all any encroachment is there, it is liable to be evicted. But Ext.P5 order passed by the Ombudsman, particularly for want of discussion and also in view of the observation made by this Court in the judgment dated 11.10.2006 in O.P.20832 of 2011, is not liable to be enforced, as it is passed without arriving at a factual finding.
10. The learned Counsel for the Panchayat as well as the 5th respondent submits that measurement of the property was effected at the instance of the Panchayat, through the concerned Tahsildar. But no counter affidavit has been filed by any of the said respondents and no proceedings are filed before this Court to arrive at a positive finding. Similarly, it is not clear whether the measurement was effected after issuing notice to the petitioner.
11. In the above circumstance, the writ petition is disposed of, with liberty to the Panchayat and authorities of the Revenue to cause proper measurement of the concerned property to ascertain whether there is any encroachment at the hands of the petitioner into the 'puramboke land'. This shall be done with proper notice to the petitioner as well as the respondents 6 and 7. If any encroachment is there, the same shall be evicted and construction, if any on such encroached land shall be caused to be demolished as well, if the same is not demolished voluntarily by the petitioner within reasonable time. The proceedings shall be finalised at the earliest, at any rate, within three months from the date of receipt of a copy of the judgment.
P.R.RAMACHANDRA MENON JUDGE lk