C. Remani v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` THURSDAY, THE 16[TH] DAY OF NOVEMBER 2023/25TH KARTHIKA, 1945 WP(C) NO.37766 OF 2023 ``` ## **`PETITIONER:`** ``` C.REMANI, AGED 62 YEARS D/O.LATE GABRIEL M, REMANI VILAS, KUNNATHUKKAL POST, THIRUVANANTHAPURAM DISTRICT, PIN - 695504 ``` ``` BY ADVS. AJIT G ANJARLEKAR G.P.SHINOD GOVIND PADMANAABHAN ATUL MATHEWS GAYATHRI S.B. ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY ITS SECRETARY, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM DISTRICT, PIN - 695001 ``` ``` 2PROJECT DIRECTOR, KRFB - PMU, OFFICE OF THE PROJECT DIRECTOR, KRFB -PMU, BSNL OFFICE BUILDING, DOORSANCHAR BHAVAN, PMG, THIRUVANANTHAPURAM DISTRICT, PIN - 695003 ``` ``` 3EXECUTIVE ENGINEER KRFB-PMU DIVISION, THIRUVANANTHAPURAM, OFFICE OF THE EXECUTIVE ENGINEER, KRFB-PMU DIVISION, THIRUVANANTHAPURAM DISTRICT, PIN – 695003 ``` ``` BY SRI.BIMAL K.NATH, SR.GOVERNMENT PLEADER ``` ``` SRI.MANOJ KUMAR, SC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No.37766 of 2023 2 ## **`JUDGMENT`** ``` The petitioner is the owner of the property referred to in Ext.P1 land tax receipt. The petitioner has approached this Court aggrieved by Ext.P9 notice issued by the 3[rd] respondent under Section 15 of the Kerala Highway Protection Act, 1999 [for brevity, 'the Act'] whereby the petitioner has been asked to demolish the building constructed encroaching upon Amaravila-Karakonam road. The petitioner submits that she has not encroached upon any portion of the said road and she has produced Ext.P8 survey sketch in support of her contentions. The petitioner states that Ext.P9 has been issued in total disregard to the principles of natural justice. The petitioner has also a contention that Amaravila-Karakonam road has not been declared as Highway in terms of the ``` WP(C) No.37766 of 2023 3 ``` NH Act. ``` ``` 2. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for the 1[st] respondent and the learned Standing Counsel appearing for respondents 2 & 3. ``` ``` 3. On going through Ext.P9, it is seen that the same has been issued in a printed format, which shows non-application of mind by the authority who issued the same. This Court has already deprecated the practice of issuing notice under Section 15 of the Act in printed format and taking steps thereunder without hearing the parties. This Court, in A.M.Sainudheen v. District Collector [2020 KHC 2534]has observed as follows: ``` ``` “The Chief Secretary and the Principal Secretary of the Public Works Department will immediately ensure that necessary guidelines and norms are given to the Engineers of the PWD to strictly observe ``` WP(C) No.37766 of 2023 4 ``` the above said minimum modicum of procedural fairness, before they could finalize action in the matter of eviction for removal of the alleged encroachment. Such circular/guideline should be issued by the Government in the Public Works Department without any delay, and if necessary after getting advise with the learned Advocate General and the circular should be issued within 3 months from the date of production of a certified copy of this judgment. It may turn out that many a case, if the above said procedure is duly finalized will disclose that there are encroachments, and then the same could be removed without any legal obstacles and without wasting unnecessary time and resources for conducting repeated survey and measurements and also to avoid unnecessary litigations which are being mounted up before this Court. So also if it is found that the apprehension of the respondent Authority regarding the alleged encroachment is unfounded, in as much as such affected parties are only in ``` WP(C) No.37766 of 2023 5 ``` possession of lands which are in their lawful title and possession, then such citizens may not be compelled to undergo the trauma of these eviction proceedings repeatedly and constraining them to approach various legal forum. If citizens who have not encroached into the Government property are unnecessarily made to face the above said trauma and in flagrant violation of norms of fairness, then it would amount to a situation whereby such citizenry may loose faith in the very system of rule of law and such action of the respondent authorities would amount to undermining the foundation of rule of law and the Constitution based Governance mechanism. Accordingly it is ordered that the Chief Secretary or the Principal Secretary to Government of Kerala in the PWD shall personally file a report before this Court and produce a copy of the aforesaid circular immediately after the expiry of the said time limit. The said report shall be filed by the Governmental Authority concerned on or before 10/06/2019. Registry ``` WP(C) No.37766 of 2023 6 ``` will then list the said report for consideration of this Court on 11/06/2019. The Registry will forward certified copies of this judgment to the Chief Secretary to the Government of Kerala, as well as the Principal Secretary to the Government of Kerala, in the Public Works Department for necessaryinformationandimmediate compliance of the directions given herein above. ``` ``` With these observations and directions, this writ petition shall stand disposed of.” ``` ``` 4. Since Ext.P9 does not reflect satisfaction of the authority who issued the impugned notice under Section 15 of the Act and the same has been issued in violation of the principles of natural justice, there will be a direction to the parties to treat Ext.P9 as a show-cause notice. The petitioner shall submit a reply to Ext.P9 within a period of one week from the date of receipt of a ``` 7 WP(C) No.37766 of 2023 ``` certified copy of this judgment. On receiving the reply, the 3[rd] respondent shall hear the petitioner and pass appropriate orders in accordance with law, as expeditiously as possible, at any rate, within a period of two weeks thereafter. Till orders are passed as above and communicated to the petitioner, there shall not be any coercive steps as against the petitioner. ``` ``` The writ petition is disposed of. ``` ``` Sd/- ``` ``` MURALI PURUSHOTHAMAN JUDGE ``` ``` sp/16/11/2023 ``` WP(C) No.37766 of 2023 8 ## **`APPENDIX`** ## **`PETITIONER'S EXHIBITS :-`** - **`EXHIBIT P1 COPY OF THE TAX RECEIPT NO.KL01041400174/ 2023 DATED 06/01/2023 ISSUED BY KUNNATHUKAL VILLAGE OFFICE TO THE PETITIONER`** ``` EXHIBIT P2COPY OF THE RECEIPT NO.57844 DATED 28/09/2015 ISSUED BY THE KUNNATHUKAL VILLAGE OFFICE TO THE PETITIONER ``` - **`EXHIBIT P3 COPY OF THE RECEIPT NO.1220103632/G010906 DATED 06/01/2023 ISSUED BY THE KUNNATHUKAL GRAMA PANCHAYAT`** - **`EXHIBIT P4 COPY OF THE RECEIPT NO. 1220103633/ G010906 DATED 06/01/2023 ISSUED BY THE KUNNATHUKAL GRAMA PANCHAYAT`** - **`EXHIBIT P5 COPY OF THE RECEIPT NO. 1220103634/ G010906 DATED 06/01/2023 ISSUED BY THE KUNNATHUKAL GRAMA PANCHAYAT`** - **`EXHIBIT P6 COPY OF THE RECEIPT NO.1220103635/G010906 DATED 06/01/2023 ISSUED BY THE KUNNATHUKAL GRAMA PANCHAYAT`** - **`EXHIBIT P7 COPY OF THE RECEIPT NO.1220103638/G010906 DATED 06/01/2023 ISSUED BY THE KUNNATHUKAL GRAMA PANCHAYAT`** - **`EXHIBIT P8 COPY OF THE SURVEY SKETCH PERTAINING TO THE PROPERTY OF THE PETITIONER`** - **`EXHIBIT P9 COPY OF THE NOTICE DATED 31/10/2023 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER`** - **`EXHIBIT P10 COPY OF THE INTERIM ORDER DATED 16/10/2023 IN WPC NO:33974 OF 2023 ISSUED BY THIS HONOURABLE COURT`**