Antony and others v. District Collector, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **MONDAY, THE 9TH DAY OF APRIL 2012/20TH CHAITHRA 1934** **WP(C).No. 14890 of 2006 (V) ---------------------------** ## **PETITIONER(S):** **-------------** **1. ANTONY, S/O.JOHN, THEKKANATH HOUSE, 14/532, PAZHANGANADU KIZHAKKAMBALAM.P.O, ERNAKULAM DISTRICT.** **2. MATHUKUTTY, S/O.JOHN, HOUSE NO.14/532 A, PAZHANGANADU, KIZHAKKAMBALAM.P.O ERNAKULAM DISTRICT.** **3. JOSEPH, S/O.ANTONY, KUREEKKAVEEPATTU HOUSE, 14/649, PAZHANGANADU KIZHAKKAMBALAM.P.O, ERNAKULAM DISTRICT.** **4. KUNJIKUTTAN, S/O.KUTTAVU, RATHNERY HOUSE, 14/648, PAZHANGANAD KIZHAKKAMBALAM.P.O, ERNAKULAM DISTRICT.** **5. ANTONY, S/O.OUSEPH, VAZHAYIL VEMBILLY, PAZHANGANADU, KIZHAKKAMBALAM.P.O ERNAKULAM DISTRICT.** **6. VARGHESE, S/O.OUSEPH, VAZHAYIL VEMBILLY, 14/558, PAZHANGANADU KIZHAKKAMBALAM.P.O, ERNAKULAM DISTRICT.** **7. K.K.HAIDROSS, S/O.KOCHU AHAMMED, KORANGATTIL, 14/743, PAZHANGANADU KIZHAKKAMBALAM.P.O, ERNAKULAM DISTRICT.** **8. K.K.SOMAN NAIR, S/O.KRISHNANKUTTY NAIR, KUNNAPPILLY VEEDU, 14/755 PAZHANGANADU, KIZHAKKAMBALAM.P.O ERNAKULAM DISTRICT.** **9. K.K.SURENDRAN, S/O.KRISHNANKUTTY NAIR, 14/754, KUNNAPPILLY VEEDU, PAZHANGANADU KIZHAKKAMBALAM.P.O, ERNAKULAM DISTRICT.** **BY ADVS.SRI.GOVIND K.BHARATHAN (SR.) SRI.MANU MOHAN SRI.R.V.SUJIT KUMAR SRI.M.S.SARUN KUMAR** **--2--** **LSN** **--2--** ## **WP(C).No. 14890 of 2006 (V)** **RESPONDENT(S): --------------** **1. THE DISTRICT COLLECTOR, ERNAKULAM.** **2. THE ADDITIONAL TAHSILDAR, KUNNATHUNADU, PERUMBAVOOR.** **3. THE KIZHAKKAMBALAM GRAMA PANCHAYATH, KIZHAKKAMBALAM, REP. BY ITS SECRETARY.** **4. I.M.VENUGOPAL, IKKARAVEEDU, EDATHALA.P.O, ALUVA.** **R1 AND R2 BY ADV. GOVERNMENT PLEADER SRI. JOSEPH GEORGE R3 BY ADV. SRI.P.SATHISAN BY ADV. SRI.P.K.IBRAHIM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **LSN** ## **WP(C).No. 14890 of 2006 (V)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE JUDGMENT IN WPC 5907/04 DATED 19/02/2006.** - **P2: COPY TAKEN FROM THREE DIFFERENT SECTIONS OF THE ROAD.** - **P3: COPY OF THE NOTICE NO.C2.5079/04 DATED 30/06/2004 ISSUED BY THE 2ND RESPONDENT TO THE 7TH PETITIONER.** - **P4: COPY OF THE NOTICE DATED 13/07/2004 SENT BY THE PETITIONER'S COUNSEL TO THE 1ST AND 2ND RESPONDENT.** - **P5: COPY OF THE COUNTER AFFIDAVIT FILED BY THE 3RD RESPONDENT I WPC NO.20875/2004.** - **P6: COPY OF THE JUDGMENT IN WPC NO.20875/2004 DATED 14/02/2005.** - **P7: COPY OF THE ORDER IN I.A. NO. 980/05 IN W.A 620/2005 DATED 23/03/2005.** - **P8: COPY OF THE OBJECTIONS DATED 28/04/2005 SUBMITTED BY THE PETITIONERS BEFORE THE ADDITIONAL TAHISILDAR KUNNATHUNADU.** - **P9: COPY OF THE COMMUNICATION DATED .31/05/2005 SENT TO THE ADDL.TAHSILDAR KUNNATHUNADU BY THE PETITIONER.** - **P10: COPY OF THE ORDER NO.C2.5079/01 DATED 01/06/2005 PASSED BY THE TAHSILDAR KUNNATHUNADU.** - **P11: COPY OF THE JUDGMENT IN W.A.620/05 DATED 31/01/2006.** - **P12: COPY OF THE COMMUNICATION NO.C2-5079/04 DATED 17/05/2006 FROM THE ADDL.TAHSILDAR, KUNNATHUNADU.** **RESPONDENT'S EXHIBITS: NIL** ## **//TRUE COPY//** **P.A. TO JUDGE** **LSN** ## S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 14890 of 2006 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 9[th] day of April, 2012. **==> picture [110 x 13] intentionally omitted <==** The petitioners are residents by the side of the Mallikkapady-Pazhanganad road in Kizhakkambalam Panchayat. They are aggrieved by Ext.P10 order, whereby the petitioners were directed to vacate certain properties in their possession by the side of the said road on the ground that they have encroached into road poramboke. The petitioners challenge Ext.P10 and P12 consequential order, directing the petitioners to demolish their wall, seeking the following reliefs: - “i. Call for the records leading to Ext.P10 order and Ext.P12 consequential order and issue a writ of certiorari or any other appropriate writ, order or direction quashing the same; - ii. declare that the 2[nd] respondent has no manner of authority to direct the petitioners to remove the encroachments if any as has been done in Exts. P10 and P12 and that the petitioners are lawful occupants of their properties and are not encroachers on any public property as alleged in Exts. P10 and P12.” The ground now put forward by the petitioners to challenge Exts. P10 and P12 is that the orders passed by the Additional Tahsildar under the Kerala Land Conservancy Act is without jurisdiction insofar as the land in question being part of a Panchayat road has been vested with the Panchayat under Section 169 of the Kerala Panchayat Raj Act. 2. An additional affidavit was filed by the 3[rd] respondent taking the stand that as per the road register of the Panchayat, W.P(C) No. 14890 of 2006 -: 2 :- no encroachment to the properties of the Panchayat has been noticed. 3. The 2[nd] respondent has filed a counter affidavit wherein, he supports the impugned orders. He submits that a detailed measurement of the property in question has been conducted and it was found that there was encroachment into the road poramboke. The 4[th] respondent also supports the contention of the 2[nd] respondent. 4. I have considered the rival contentions in detail. 5. The contention now pressed into service by the petitioners is that the land having been vested with the Panchayat under Section 169 of the Kerala Panchayat Raj Act, the 2[nd] respondent does not have jurisdiction to initiate proceedings under the Kerala Land Conservancy Act. I do not think that that contention would survive in view of the amendment to Explanation IV of Section 3 of the Kerala Land Conservancy Act defining a property of the Government. Explanation IV of the Kerala Land Conservancy Act reads thus: “ **Explanation IV:** - (1) Lands belonging to the Government of any other State in India or the Kerala State Electricity Board or to a University established by law or to any Panchayat as defined in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or any Municipality as defined in the Kerala Municipality Act, 1994 (20 of 1994) owned or controlled by the Government of Kerala or to a Municipal Corporation shall be deemed to be the property of Government within the meaning of this section. (2) All unassessed lands within the limits of private estates used or reserved for public purposes or for the communal use of villagers, and all public roads and streets W.P(C) No. 14890 of 2006 -: 3 :- vested in any local authority shall, for the purpose of this Act, be deemed to be the property of Government.” The words “or to any Panchayat as defined in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or any Municipality as defined in the Kerala Municipality Act, 1994 (20 of 1994) owned or controlled by the Government of Kerala or to a Municipal Corporation” have been included in the Explanation by the Kerala Decentralisation of Powers Act, 2000 (16 of 2000) by G.O(P) No. 3294/Leg.C1/2000/Law dated. 12.5.2000. In view of that Explanation, the land belonging to the Panchayat also comes within the purview of property of the Government under the Kerala Land Conservancy Act. That being so, the 2[nd] respondent has jurisdiction to initiate proceedings under the Kerala Land Conservancy Act. In fact, it has been so decided by a learned Judge of this Court in **Anish v. District Collector** , 2012 (2) KLT 7. Apart from that, it is to be noted that the petitioners had earlier approached this Court by filing W.P (C) No. 20875/2004, in which a learned Judge of this Court had passed Ext.P6 judgment, which reads as follows: “Petitioners are aggrieved by Ext.P3 notice issued by the second respondent. As per the said notice, petitioners have been directed to surrender vacant possession of the encroachment made in the Government property. According to the petitioners the puramboke vests in the Panchayat and hence the second respondent does not have any jurisdiction to proceed with the matter. Learned counsel appearing for the 3[rd] respondent Grama Panchayat submits that the encroached property is not vested in the Panchayat. Learned Government Pleader, referring to the counter affidavit filed by the first respondent, submits that W.P(C) No. 14890 of 2006 -: 4 :- on a survey conducted with the participation of the petitioners also it is found that the petitioners had encroached upon the Government land and hence the steps. It is the contention of the petitioners that the road being at a lower level there cannot be any encroachment. It is also submitted that they have been in possession of the property for more than two decades. These are all contentions open to the petitioners to be taken when steps are duly taken by respondents 1 and 2. If it has come out in the survey that there is encroachment, it is for respondents 1 and 2 to initiate proceedings under the Land Conservancy Act in which case the petitioners will also get an opportunity to pursue their grievance. I do not find any justification in the eviction as now proposed to be taken as per Ext.P3 notice. It is quashed. The petitioners should have been given an opportunity as contemplated under the Act. Therefore, I dispose of the writ petition making it clear that the judgment will not stand in the way of respondents 1 and 2 initiating appropriate proceedings against the petitioners under the provisions of the Land Conservancy Act.” Although the 4[th] respondent herein challenged the same in a writ appeal, in that writ appeal also the Division Bench directed the 2[nd] respondent to issue notice of eviction to the petitioners herein and to pass appropriate orders after considering their objections. If the petitioners had a contention that the 2[nd] respondent did not have jurisdiction to pass orders in the matter, they should have challenged Ext.P6 judgment. In fact, the writ appeal filed by the 4[th] respondent against that judgment was dismissed as infructuous by a Division Bench of this Court in Ext.P11 without prejudice to the right of the petitioners to challenge the order passed during the pendency of that writ appeal which is Ext. P10. Therefore, it is too late for the petitioners now to contend that the 2[nd] respondent does not have jurisdiction . The learned counsel for the petitioners W.P(C) No. 14890 of 2006 -: 5 :- did not advance any arguments on the merits of the matter. The 2[nd] respondent has, after surveying the properties, come to the conclusion that the petitioners have encroached into road poramboke. This Court cannot also decide correctness of that decision without taking evidence, which cannot be done in proceedings under Article 226 of the Constitution of India, ordinarily. If the petitioners' case is that the land from which the petitioners have been directed to be evicted is not a land which is the property of the Government, the remedy of the petitioner is to file a suit, right for which has been saved under Section 20 of the Kerala Land Conservancy Act. In the above circumstances, I do not find any merit in the writ petition and accordingly the same is dismissed. Sd/- S. Siri Jagan, Judge. Tds/