Aslam.T.E & M. Koya v. District Collector, Kozhikode and Others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Gopinath P.
Judgment Date: 2023-01-27
Court Decision / Holding: Notices issued under the Kerala Highway Protection Act, 1999 (Ext. P2 in WP(C) No. 2464 of 2023 and Ext. P9 in WP(C) No. 464 of 2023) shall be treated as show cause notices. The petitioners shall mark appearance before the 5th respondent at 11.00 AM on 31.01.2023. Thereafter, the 5th respondent shall complete the proceedings after hearing and taking note of objections, and if necessary, after carrying out a measurement of the properties with notices to the petitioners. Further proceedings will be continued against the petitioners only after these proceedings are concluded.
Final Disposition: Disposed of with directions

Parties to the Case

Appellants / Petitioners

ASLAM.T.E
M. KOYA

Respondents

DISTRICT COLLECTOR, KOZHIKODE
TAHASILDAR (LAND RECORDS), THAMARASSERY TALUK, KOZHIKODE
TALUK SURVEYOR, THAMARASSERY TALUK, KOZHIKODE
VILLAGE OFFICER, NARIKKUNI VILLAGE OFFICE, KOZHIKODE
EXECUTIVE ENGINEER, ROADS DIVISION, PUBLIC WORKS DEPARTMENT, KOZHIKODE
ASSISTANT EXECUTIVE ENGINEER, ROADS SUB DIVISION, KOZHIKODE
ASSISTANT ENGINEER, ROADS SECTION OFFICE, NARIKUNNI, KOZHIKODE
M/S. HINDUSTAN PETROLEUM CORPORATION LIMITED

Legal Representation & Advocates

Counsels for Petitioners

• K. Praveen Kumar
• G. Krishna Kumari

Counsels for Respondents

• SRI. BIMAL K NATH (SR GP)

Case Synopsis & Summary

The petitions challenge notices issued under the Kerala Highway Protection Act, 1999 directing the petitioners to surrender portions alleged to encroach upon highway puramboke. The petitioners contend they were deprived of an opportunity to be heard before a determination of encroachment, and rely on the court’s prior ruling in Sainudheen A.M. and Another v. District Collector and Others (2020 KHC 2534) to assert their right to appear and object under the Act. The learned Senior Government Pleader concedes that the notices can be treated as show cause notices and proposes that the petitioners be afforded an opportunity to appear before the Executive Engineer, Roads Division, Public Works Department, Kozhikode, who issued the notices, after which the proceedings can be completed after hearing and taking note of objections, and, if necessary, by measurement of the properties. On hearing, the court directs that the notices (Ext.P2 in WP(C) No. 2464 of 2023 and Ext.P9 in WP(C) No. 464 of 2023) be treated as show cause notices and that the petitioners mark appearance before the 5th respondent on 31.01.2023 at 11.00 AM. Proceedings will proceed thereafter after considering objections and any measurements. The matter is disposed with directions for due process in the encroachment proceedings.

Provisions of Law Cited

Kerala Highway Protection Act, 1999

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioners contend that they are entitled to notice and hearing before any determination of encroachment under the Kerala Highway Protection Act, 1999; they rely on the decision in Sainudheen A.M. and Another v. District Collector and Others (2020 KHC 2534) to assert their right to appear and object, and seek an opportunity to substantiate that they are not in possession of highway puramboke.

Contentions of Respondents

Respondents submit that the notices can be treated as show cause notices; petitioners can appear before the Executive Engineer, Roads Division, PWD, Kozhikode; after hearing and considering objections (and if necessary, after measurement), the proceedings can be completed.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sainudheen A.M and Another v. District Collector and Others [2020 KHC 2534]	2020 KHC 2534	Positive	Cited as authority that petitioners have a right to appear and object before encroachment determinations under the Kerala Highway Protection Act, 1999.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** ## **FRIDAY, THE 27TH DAY OF JANUARY 2023 / 7TH MAGHA, 1944** ## **WP(C) NO. 464 OF 2023** ## **PETITIONER:** ASLAM.T.E, AGED 50 YEARS, S/O. KUNHAMMED HAJI, THAZHE EDAVACHERY, KODIYOOR.P.O, KOZHIKODE (DT)– 673 506. BY ADVS. K.PRAVEEN KUMAR G.KRISHNAKUMARI ## **RESPONDENTS:** 1 THE DISTRICT COLLECTOR, CIVIL STATION. P.O, KOZHIKODE (DT) – 673 020. 2 THE TAHASILDAR (LAND RECORDS), THAMARASSERY TALUK, THAMARASSERY, KOZHIKODE (DT)- 673 573. 3 TALUK SURVEYOR, THAMARASSERY TALUK, KOZHIKODE (DT) – 673 573. 4 THE VILLAGE OFFICER, NARIKKUNI VILLAGE OFFICE, KOZHIKODE (DT), – 673 585. 5 THE EXECUTIVE ENGINEER, ROADS DIVISION, PUBLIC WORKS DEPARTMENT, CIVIL STATION (PO), KOZHIKODE (DT) – 673 020. WP(C) NOS. 464 & 2464 OF 2023 2 6 THE ASSISTANT EXECUTIVE ENGINEER, ROADS SUB DIVISION, PUBLIC WORKS DEPARTMENT, KODUVALLY, KOZHIKODE (DT) – 673 572. 7 THE ASSISTANT ENGINEER, ROADS SECTION OFFICE, PUBLIC WORKS DEPARTMENT, NARIKUNNI, KOZHIKODE (DT) – 673 585. 8 M/S. HINDUSTAN PETROLEUM CORPORATION LIMITED, REPRESENTED BY ITS REGIONAL MANAGER, KANNUR ROAD, NEAR RAILWAY STATION, ELATHUR, KOZHIKODE (DT), PIN – 673 303. BY ADVS. GOPI KRISHNAN N. K.JOHN MATHAI(K/413/1984) JOSON MANAVALAN(J-526) KURYAN THOMAS(K/131/2003) PAULOSE C. ABRAHAM(MAH/58/2006) RAJA KANNAN(K/356/2008) SRI. BIMAL K NATH (SR GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.01.2023 ALONG WITH WP(C)NO.2464/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NOS. 464 & 2464 OF 2023 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **FRIDAY, THE 27TH DAY OF JANUARY 2023 / 7TH MAGHA, 1944** **WP(C) NO. 2464 OF 2023** ## **PETITIONER:** M. KOYA, AGED 67 YEARS, S/O. HUSSAIN KUTTY, FAJRAN MANZIL, EDAKKARA (PO), KOZHIKODE – 673 616. BY ADVS. K.PRAVEEN KUMAR G.KRISHNAKUMARI ## **RESPONDENTS:** 1 THE DISTRICT COLLECTOR, CIVIL STATION. P.O, KOZHIKODE (DT) – 673 020. 2 THE TAHASILDAR (LAND RECORDS), THAMARASSERY TALUK, THAMARASSERY, KOZHIKODE (DT) – 673 573. 3 TALUK SURVEYOR, THAMARASSERY TALUK, KOZHIKODE (DT)- 673 573. 4 THE VILLAGE OFFICER, NARIKKUNI VILLAGE OFFICE, KOZHIKODE (DT) - 673 585. 5 THE EXECUTIVE ENGINEER, ROADS DIVISION, PUBLIC WORKS DEPARTMENT, CIVIL STATION (PO),KOZHIKODE (DT) – 673 020. 6 THE ASSISTANT EXECUTIVE ENGINEER, ROADS SUB DIVISION, PUBLIC WORKS DEPARTMENT, KODUVALLY, KOZHIKODE (DT) – 673 572. WP(C) NOS. 464 & 2464 OF 2023 4 7 THE ASSISTANT ENGINEER, ROADS SECTION OFFICE, PUBLIC WORKS DEPARTMENT, NARIKUNNI, KOZHIKODE (DT) – 673 585. SRI. BIMAL K NATH (SR GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.01.2023, ALONG WITH WP(C).464/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NOS. 464 & 2464 OF 2023 5 ## **JUDGMENT** Petitioners in these writ petitions are aggrieved by the fact that without affording to them any opportunity of hearing and without giving them any opportunity to substantiate that they are not in possession of any 'highway purmboke', they have been issued with notices under the provisions of the Kerala Highway Protection Act, 1999, calling upon them to immediately surrender the alleged encroached portions. 2. It is the case of the learned counsel appearing for the petitioners in these cases that going by the law laid down by this Court in _**Sainudheen A.M and Another v. District Collector and Others [2020 KHC 2534]**_ **,** the petitioners have every right to appear and object to the determination that they are in illegal occupation of 'highway puramboke' to which the provisions of the Kerala Highway Protection Act, 1999 apply. 3. The learned Senior Government Pleader very fairly submits that the notices issued to the petitioners in these cases can be treated as show cause notices and the petitioners can be permitted to appear before the Executive Engineer, Roads Division, Public Works Department, Civil Station (PO), Kozhikode, who has issued the notices in question to the petitioners. It is WP(C) NOS. 464 & 2464 OF 2023 6 submitted that thereafter, further proceedings can be completed after hearing and taking note of the objections, if any, raised by the petitioners. Having heard the learned counsel appearing for the petitioners and the learned Senior Government Pleader appearing for the respondents, these writ petitions will stand disposed of directing that the notices issued to the petitioners in these cases under the provisions of the Kerala Highway Protection Act, 1999 (marked as Ext.P2 in W.P(C)No.2464 of 2023 and as Ext.P9 in W.P(C)No.464 of 2023) shall be treated as notices issued to the petitioners. The petitioners in these cases shall mark appearance before the 5[th] respondent at 11.00M on 31.01.2023. Thereafter, the proceedings shall be completed by the 5[th] respondent after taking note of any objections raised by the petitioners and if necessary, after carrying out a measurement of the properties with notices to the petitioners. Further proceedings will be continued against the petitioners in these cases only after the proceedings are concluded as above. Sd/- **GOPINATH P. JUDGE** DK WP(C) NOS. 464 & 2464 OF 2023 7 ## **APPENDIX OF WP(C) 464/2023** PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF THE SALE DEED NO. 2450/2001 DATED 19.09.2001. - Exhibit P2 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY 4TH RESPONDENT BEARING NO. K. DIS. 652/2001. - Exhibit P3 TRUE COPY OF THE BASIC TAX RECEIPT BEARING NO. K.L.11041000469/2022 DATED 13.01.2022. - Exhibit P4 TRUE COPY OF THE LAND LEASE AGREEMENT DATED 01.02.2018. - Exhibit P5 TRUE COPY OF THE LOCATION SKETCH. - Exhibit P6 TRUE COPY OF THE NO OBJECTION CERTIFICATE BEARING NO. D4-40328/2001 DATED 01.12.2001. - Exhibit P7 TRUE COPY OF THE NOTICE NO. D4-3806/05 DATED 26.07.2005 ISSUED BY THE 1ST RESPONDENT. - Exhibit8 TRUE COPY OF THE NOTICE NO. D2-8765/21 DATED 10.11.2022 WAS ISSUED BY THE 4TH RESPONDENT . Exhibit P9 TRUE COPY OF THE NOTICE NO. D2/GL/2022/ ENCROACHMENT DATED 15.12.2022 ISSUED BY 5TH RESPONDENT AND SIGNED BY RESPONDENTS NO. 6 AND 7 UNDER KERALA HIGHWAY PROTECTION ACT, 1999. WP(C) NOS. 464 & 2464 OF 2023 8 ## **APPENDIX OF WP(C) 2464/2023** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE BASIC TAX RECEIPT BEARING NO.KL11041000145/2023 DATED 1001-2023 ISSUED BY 4TH RESPONDENT . Exhibit P2 TRUE COPY OF THE NOTICE NO. D2/GL/2022/ ENCROACHMENT DATED 15.12.2022 ISSUED BY 5TH RESPONDENT AND SIGNED BY RESPONDENTS NO. 6 AND 7 UNDER KERALA HIGHWAY PROTECTION ACT, 1999. Exhibit P3 TRUE COPY OF THE ORDER DATED 09-01-2023 IN WP © NO.464/2023 OF THIS HON'BLE COURT.