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2025 Supreme(Online)(Ker) 48130
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MOHAMMED NIAS C.P., J
JOHNSON PHILIP – Appellant
Versus
STATE OF KERALA – Respondent
WP(C) NO. 5368 OF 2017 | WP(C) NO. 41144 OF 2022
For the Appellants/Petitioners: SRI.V.PHILIP MATHEW
For the Respondents: SRI.V.K.SUNIL, SRI.RAJEEV V.K., SRI.SUNIL JACOB, SRI.R.PARTHASARATHY, SMT.SEEMA, SRI.R.RENJITH, SRI.M.T.SURESHKUMAR, SRI.DHEERAJ A.S., GP
Challenges to the Panchayat's Asset Register must follow statutory procedures under the Kerala Panchayat Raj Act, maintaining the interim order until resolution.
Headnote:(A) Kerala Panchayat Raj Act, 1994 - Section 191 - Private road ownership - Writ petition challenging the entry of property in Asset Register of Panchayat - The petitioner claims exclusive ownership of property with a private road; the Panchayat contends it's within public domain as per their resolution. Remedy under Section 191 is available for challenging such resolutions, thus, the writ challenge is not maintainable at this juncture. The interim order against construction on the private road continues pending governmental review. (Paras 1, 2, 9)
(B) Interim Orders - The court maintains existing interim orders until further governmental decisions, keeping in mind the balance between private rights and public interests as articulated in related legal precedents. (Paras 4, 9)
Facts of the case:
The petitioner Johnson Philip filed a writ petition contesting the inclusion of his property in the Panchayat’s Asset Register after claiming exclusive ownership, challenged through subsequent amendments. The Panchayat defends this inclusion as legal per statutory regulations.
Findings of Court:
The court opted not to interfere with the Panchayat's resolution but allowed for a statutory challenge under Section 191 of the Act, reserving the petitioner’s rights.
Issues: The court addressed whether the respondent's inclusion of the property was legally justified based on statutory authority versus the claimed exclusive ownership of the petitioner.
Ratio Decidendi: The court ruled that challenges to resolutions regarding asset registers should be made through government channels as specified by the relevant statute, emphasizing not to resolve ownership disputes in writ petitions.
Result: Writ petitions disposed of.
| Table of Content |
|---|
| 1. petitioner's claim on exclusive property ownership. (Para 1 , 2) |
| 2. procedural rights under the kerala panchayat raj act. (Para 3 , 7 , 8) |
| 3. challenges to property registration and legal arguments presented. (Para 4 , 5 , 6) |
| 4. court's decision reserve rights for statutory appeal. (Para 9) |
| 5. interim stay continues pending governmental review. (Para 10) |
JUDGMENT
The petitioner is stated to be the owner of 48.76 ares of property situated in Sy. No.10/5, 10.12 ares of property situated in Sy. No.10/5/1 and 10.12 ares of property situated in Sy. No.10/5/2 of Malayalapuzha Village, Kozhencherry Taluk, Pathanamthitta District, as per Ext.P1 sale deed and asserts that a private road is passing through the above property exclusively owned by him. He also relies on Ext.P5 (Ext.P5 in WP(C) No.5368/2017) to say that the said property is not included in the Asset Register maintained by the Panchayat and that, the Panchayat has not made any construction activities therein. Subsequently, the property in question was included in the Asset Register during the pendency of this writ petition by Ext.P11 resolution, which is challenged in WP(C) No.5368/2017 by way of an amendment.
2. The petitioner challenges Ext.P11 resolution in so far as it includes the property in question in Ext.P10 Asset Register. Against a resolution passed by the Panchayat, the petitioner can move the Government for cancelling or varying the resolution if the same is not legally passed or taken or is in excess of the powers 6 conferred under the Act under Section 191 of the Kerala Panchayat Raj Act , 1994. In view of the above remedy available to the petitioner, I am not inclined to entertain a challenge to Ext.P11 resolution.
3. WP(C) No.41144/2022 was filed at a time when the Electricity Board tried to install and energize a post on the way in question.
4. At the time of admission of WP(C) No.5368/2017, on 17.2.2017, an interim stay as prayed for was passed directing respondents 6 & 7 not to do any works/construction over the private road 'Kurishummoodu-Polachirackalpadi road' owned by the petitioner. The said order is still in force. In WP(C) No.41144/2022, an interim order was passed directing the Board not to energize the electric line for the purpose of installation of street lights over the private road without the permission of the owners of the property.
5. The learned counsel appearing for respondent No.9 in WP(C) No.5368/2017 submits that, Ext.P4 issued by the Panchayat stating that the property in question is not in Asset Register is a mistake and that, the property has been rightly included in the Asset Register through Ext.P11 resolution. The learned counsel for the Panchayat also submits that the property vests with the Panchayat and accordingly, has been included in the Asset Register.
6. The learned counsel for the petitioner relies on the judgment of this Court inRadhakrishnan T.K. v. State of Kerala and Ors. [2022 (2) KHC 86, paras 21 & 7 22] for the proposition that, in the absence of dedication by the owner nobody else has the right to use the way in question. The learned counsel for the Panchayat relies on the judgment inMariam Beevi v. Secretary, Athirampuzha Grama Panchayath, Kottayam and Ors. [2015 (3) KHC 199] to submit that once a private road is meant to connect somebody else's property and thus becoming part of the network of roads or paths, it is to subserve the public purpose of providing access to and fro and therefore, the road ceases to have any exclusivity for individual interest and is to yield to common good, the panchayat would be justified in developing the road. The learned counsel for the 9th respondent in WP(C) No.5368/2017, relying on the judgment of this Court in Kurian Paul v. Inspector of Police, Puthukkad [2023 (2) KHC 275] would contend that, the Asset Register of the Panchayat, being a statutory document maintained in terms of the provisions of the Kerala Panchayat Raj (Accounts) Rules, the entries therein hav
