## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS**
**TUESDAY ,THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940**
## **WP(C).No. 2636 of 2019**
## **PETITIONER/S:**
**ABDUL SALIM, AGED 58 YEARS S/O.IBRAHIM RAWTHER, RESIDING AT FAIZAL NIVAS, KOINALLOOR MURI, CHUNAKKARA, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT.**
**BY ADV. SRI.A.SHAFEEK (KAYAMKULAM)**
## **RESPONDENT/S:**
**1 THE ASSISTANT ENGINEER, MINOR IRRIGATION SECTION, KARUNAGAPPALLY- 690518.**
**2 THE TAHSILDAR, TALUK OFFICE, KARUNAGAPPALLY- 690518.**
## **OTHER PRESENT:**
**SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **ALEXANDER THOMAS, J.**
==================
## W.P.(C).No. 2636 of 2019
## ==================
Dated this the 29[th] day of January, 2019 **J U D G M E N T**
The prayers in the above Writ Petition (Civil) are as follows:
- _“i) Issue a writ of certiorari or any other appropriate writ or order setting aside Ext.P-9 order passed by 1[st] respondent._
- _ii) To issue a writ of mandamus or any other appropriate writ or order compelling the 1[st] respondent not to evict the petitioner from his property which he obtained as per registered sale deed._
- _iii) Grant such other relief as this Hon'ble Court may deem fit and proper in the in the interest of justice.”_
2. Heard Sri.A.Shafeek (Kayamkulam), learned counsel
appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for the respondents.
3. The petitioner claims to be in ownership and exclusive possession and enjoyment of 4.80 Ares of property in Re-survey No. 40/1, 40/1/2 and 40/1/2/4 of Oachira Village, Karunagappaly Taluk in Kollam revenue district and a commercial building constructed in the said land. The petitioner had purchased the said property as per sale deed Nos.3450/06, 153/07/D and 167/17/1 of SRO, Ochira. That he had constructed a shop room for which the Ochira grama Panchayat has issued Ext.P-1 permit also. Now the 1[st] respondent Assistant Engineer has issued the impugned Ext.P-9 order 31.12.2018 directing the petitioner to demolish a portion of the building which is
W.P.(C).2636/19 - : 3 :-
alleged to have been constructed encroaching upon the Marangattumukku-Mahalakshmi Thodu, which is passing through the eastern side of the petitioner's property. In Ext.P-9 order it is stated that the 1[st] respondent is issuing the said order on the basis of a complaint received regarding encroachment and after conducting survey through taluk survey department, which found that the petitioner had encroached upon the thode. It is the specific case of the petitioner that no such survey and measurement has been done by any surveyor with due prior notice to the petitioner and moreover, copy of such report of the survey nor copy of the survey sketch had been given to the petitioner in advance before the impugned Ext.P-9 order has been passed. Further Rue 11 of the Land Conservancy Rules, 1958, mandates that final order of the authority shall be in writing in his own hand and shall contain the reason for the decision and that the decision shall be communicated to the party in writing and simultaneously a notice in Form C appended to the rules shall be served requiring him to vacate the land within a specified period. That this Court in the decision in _**Holy Cross Church v. Tahsildar North Parur**_ , reported in 1973 KHC 151 = 1973 KLT 663, has held that no action of eviction can be taken against an alleged encroacher under the Act unless the final order accompanied
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by notice in Form C is served on affected party as required under Rule 11 of the Rules. It is stated that Ext.P-9 is a no speaking order, which has been passed by the 1[st] respondent without considering any of the contentions raised by the petitioner and he had not been served any notice in Form C as mandated in Rule 11. Ext.P-9 order has been
passed without following the statutory provisions and also in violation of the specific directions issued by this Court in Ext.P-6 judgment 10.102.108 in W.P.(C).No.33146/2018 filed by the petitioner herein, wherein this Court has directed the 1[st] respondent to duly consider all the objections of the petitioner, etc. It is in the light of these factual averments, that the petitioner has filed the instant Writ Petition (Civil) with the aforementioned prayers:
4. It appears that the survey and measurement said to have been carried out by the 1[st] respondent through the surveyor concerned has been effected without any prior notice to the petitioner. Moreover, neither the copy of the report of the surveyor finding the alleged encroachment, nor copy of the survey sketch in that regard has been duly given to the petitioner in advance. So also copy of the basic complaint on the basis of which the 1[st] respondent has initiated proceedings has not been given to the petitioner. Form C notice as mandated in Rule 11 has not been issued to the petitioner. A mere
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reading of Ext.P-9 order will show that none of the objections and contentions of the petitioner in Ext.P-7 objections have been considered in spite of the specific directions issued by this Court in Ext.P-6 judgment. Since no notice was given before the conduct of the abovesaid survey, it is almost obvious that the title deed of the petitioner has not been examined by the surveyor before conducting such survey and therefore the finding that the petitioner is in occupation not only in respect of the land in his lawful title and possession, but has also encroached into puramboke land, etc. cannot be said to be right and proper, as title deeds of the petitioner have not been examined. Accordingly, the matter requires legal interdiction so as to effectuate a remit. In order to facilitate such a remit, it is ordered that the impugned Ext.P-9 order will stand set aside and the matter will stand remitted to the 1[st] respondent to consider the matter afresh. The 1[st] respondent will immediately furnish a copy of the complaint on the basis of which he has initiated action. The copy of the report of the surveyor and the copy of the survey sketch so prepared as referred to in Ext.P-9 should also be immediately furnished to the petitioner. If the petitioner disputes about any of the findings in the said survey, then the 1[st] respondent is bound to ensure that a fresh survey and measurement is conducted through a
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competent surveyor with due prior notice to the petitioner, as the previous survey so done behind the back of the petitioner cannot bind on him, especially in view of the fact that he disputes with regard to its findings. If that be so, the 1[st] respondent shall immediately request the Taluk surveyor concerned to conduct a survey and measurement of the subject property to ascertain whether the petitioner is in occupation and possession only in respect of the land within his lawful title and possession or whether he has encroached into any Government properties/thodu puramboke etc. The surveyor will conduct such survey and measurement with reference to the title deeds of the petitioner, with due prior notice to the petitioner as aforestated and submit a report stating as to whether the petitioner has encroached into any puramboke land and if so, survey sketch should also be prepared by him. After examining of the title deeds of the petitioner, survey records, etc. he will give a comprehensive report as to whether the petitioner is in occupation only in respect of the land within his lawful title and possession or whether he has encroached into puramboke land/thodu puramboke etc. In that eventuality, survey sketch should also be submitted by the surveyor showing the exact nature and extent of encroachment alleged to have been made by the petitioner. A copy of the report of the surveyor
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along with survey sketch should be given to the petitioner in advance. Thereafter, the petitioner may give his objections thereto. The 1[st] respondent will thereafter afford reasonable opportunity of being heard to the petitioner and after consideration of the objections will pass a considered order as to whether the petitioner is in occupation of Government property/puramboke property as aforestated. If the 1[st] respondent intends to order eviction of the petitioner, then proper Form C notice should also be accompanied the proceedings issued by him reflecting his decision as aforestated. The entire process in that regard should be duly completed by the 1[st] respondent without much delay, preferably within a period of 3 months from the date of production of a certified copy of this judgment.
With these observations and directions, the above Writ Petition
(Civil) stands finally disposed of.
Sd/sdk+ **ALEXANDER THOMAS, JUDGE**
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## **APPENDIX**
## **PETITIONER'S/S EXHIBITS:**
**EXHIBIT P1 TRUE COPY OF THE PERMIT DATED 11.04.2014 ISSUED BY THE OCHIRA GRAMA PANCHAYAT. EXHIBIT P2 TRUE COPY OF THE PERMIT NO.2222/17 DATED 19.04.2017 ISSUED BY THE GRAMA PANCHAYAT. EXHIBIT P3 TRUE COPY OF THE OWNERSHIP CERTIFICATE IN RESPECT TO BUILDING NO.OP/IV/806. EXHIBIT P3 A TRUE COPY OF THE OWNERSHIP CERTIFICATE IN RESPECT TO BUILDING NO.OP/IV/807. EXHIBIT P3 B TRUE COPY OF THE OWNERSHIP CERTIFICATE IN RESPECT TO BUILDING NO.OP/IV/808. EXHIBIT P3 C TRUE COPY OF THE OWNERSHIP CERTIFICATE IN RESPECT TO BUILDING NO.OP/IV/809. EXHIBIT P4 PHOTOGRAPHS SHOWING THE LIE OF THE BUILDING OF THE PETITIONER, CANAL ON THE EASTERN SIDE. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 15.09.2018 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P6 PHOTOCOPY OF THE JUDGMENT DATED 10.10.2018 IN WP(C)NO.33146/2018 OF THIS HON'BLE COURT. EXHIBIT P7 PHOTOCOPY OF THE OBJECTION FILED BY THE PETITIONER ON 22.10.2018. EXHIBIT P8 PHOTOCOPY OF THE APPLICATION DATED 08.10.2018 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT UNDER RIGHT TO INFORMATION ACT. EXHIBIT P9 PHOTOCOPY OF THE ORDER NO.MIK GENERAL/2007 DATED 31.12.2018 ISSUED BY THE 1ST RESPONDENT.**
