Elizabeth Beena Belliappa v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM WEDNESDAY, THE 7[TH] DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945** ## **WP(C) NO. 23422 OF 2023** ## **PETITIONER:** ELIZABETH BEENA BELLIAPPA, AGED 69 YEARS D/O P A HORMIS THARAKAN, 11/2, 2ND CROSS, CHARLES CAMPBELL ROAD, BANGALORE, PIN - 560005 BY ADVS. V.M.KRISHNAKUMAR MAYA M. ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 SECRETARY PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 3 DISTRICT COLLECTOR COLLECTORATE, CIVIL STATION, ALAPPUZHA, PIN - 688001 4 REVENUE DIVISIONAL OFFICER, ALAPPUZHA REVENUE DIVISION OFFICE, THATHAMPALLY, ALAPPUZHA, PIN - 688013 5 TAHSILDAR CHERTHALA TALUK, NEAR MINI CIVIL STATION, CHERTHALA, ALAPPUZHA, PIN - 688524 6 VILLAGE OFFICER EZHUPUNNA VILLAGE, ERAMALLOOR, ALAPPUZHA, PIN - 688537 7 EXECUTIVE ENGINEER PWD (ROADS AND BRIDGES), CHERTHALA, ALAPPUZHA, PIN - 688524 **WP(C) NO.23422/2023** **2** 8 STATION HOUSE OFFICER AROOR POLICE STATION, CHANDIROOR, ALAPPUZHA, PIN - 688535 9 **ADDL. R9** KANJIRATHINKAL DEVI TEMPLE COMMITTEE REPRESENTED BY ITS SECRETARY, ERAMALLOOR, ALAPUZHA DIST -688537 10 **ADDL. R10** SNDP YOGAM BRANCH NO. 671 REPRESENTED BY SECRETARY, ERAMALLUR P.O. ALAPPUZHA DISTRICT - 688537 (ADDITIONAL RESPONDENTS 9 & 10 ARE IMPLEADED AS PER ORDER DATED 02.11.2023 IN I.A.S 1/2023 AND 2/2023 RESPECTIVELY IN WP(C). BY ADVS. V.M.KRISHNAKUMAR No Advocate SINEESH K.M.(SINEESH MADHAVAN) KANNEZHATHU MADHAVAN P.SAJEEV (PERUMPALAM)(K/967/2007) DEEPA.V., GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO.23422/2023** **3** ## **JUDGMENT** _Dated this the 07[th] day of February, 2024_ Petitioner has approached this Court seeking a direction to the respondents to ensure that encroachments as seen in Exts.P5 and P6 photographs abutting PWD Road on one side and the petitioner's compound wall on the other side is removed, within a time limit to be fixed by this Court. 2. Petitioner along with her sister own 27 cents of land in Sy.No.158/21 of Ezhupunna Village, Cherthala Taluk as evident from Ext.P4 possession certificate. The said plot is abutting the old National Highway. Petitioner submits that for the past several months encroachment into pavements/road margins of the public road abutting the petitioner's compound wall is being done and a small construction is made around a tree standing in the pavement of the road and certain religious rites are being conducted by unidentified persons. Petitioner submits that these unauthorised activities are being undertaken by respondents 9 and 10. Petitioner submits that the Apex **WP(C) NO.23422/2023** **4** Court as per Ext.P1 order dated 31.01.2018 has taken note of such encroachment over public road/puramboke and issued directions, the relevant portion of which reads as follows : “Vide order dated 16.2.2010, the following directions have been issued: In pursuance of the order of this Court dated 29th September, 2009, by which this Court directed that henceforth no unauthorised construction shall be carried out or permitted in the name of Temple, Church, Mosque or Gurudwara etc. on public streets, public parks or other public places, the affidavits of all the States and the Union Territories, except the State of Uttarakhand, have been filed. All the States and the Union Territories have taken necessary steps to ensure that no further unauthorised construction shall take place and Court's directions are seriously and meticulously complied with. The other part of the directions issued on 29th September, 2009, were that in respect of unauthorized construction of religious nature which has already taken place on public streets, public parks or other public places, the State Governments and the Union Territories were directed to review the same on case to case basis and take appropriate steps as expeditiously as possible. We do not find comprehensive and satisfactory affidavits as far as this direction of the order is concerned. Therefore, it has become imperative to direct all the States and the Union Territories to formulate comprehensive policy regarding the removal/relocation/ **WP(C) NO.23422/2023** **5** regularisation of the unauthorized construction within six weeks' from today. The policy should clearly indicate within what period the States and the Union Territories are going to fully comply with its policy to remove/relocate/regularise the unauthorized construction. We also direct all the States and the Union Territories to identify unauthorized construction of religious nature on public streets, public parks and public places within six weeks' from today. We direct the Chief Secretary of the State of Uttarakhand to file an affidavit within two weeks from today. In case the affidavit is not filed, the Chief Secretary shall remain present in Court on the next date of hearing. We also direct all the Chief Secretaries of the States and the Administrators of the Union Territories to file further comprehensive affidavits within six weeks' from today. The special leave petition is adjourned to 6th April, 2010." ## 3. Petitioner also relies on Ext.P2 judgment in **Jagpal Singh and others v. State of Punjab and others** (2011 KHC 4091), the relevant paragraph of which reads as follows : “22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorised occupants of Gram Sabha/Gram Panchayat/ Poramboke/ Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for **WP(C) NO.23422/2023** **6** the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/ Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularising the illegal possession. Regularisation should only be permitted in exceptional cases eg. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes or where there is already a school, dispensary or other public utility on the land.” 4. Petitioner submits that she has preferred Ext.P7 representation before the seventh respondent as well as Ext.P8 representation before the fourth respondent and seeks for an expeditious consideration of Exts.P7 and P8 and consequent steps to evict the encroachment proceedings. 5. Heard the learned Government Pleader also. 6. After hearing both sides, I am inclined to dispose of the Writ Petition with a direction to the seventh respondent **WP(C) NO.23422/2023** **7** to take up Ext.P7 representation preferred by the petitioner and take appropriate steps as requested therein in accordance with law, taking into consideration Exts.P1 and P2 judgments of the Apex Court, after affording an opportunity of being heard to the petitioner/authorised representative, additional respondents 9 and 10 and any other affected parties and finalise the proceedings within an outer limit of two months from the date of receipt of a copy of the judgment. Writ Petition is disposed of with the above directions. Sd/- **VIJU ABRAHAM JUDGE** csl **WP(C) NO.23422/2023** **8** ## **APPENDIX OF WP(C) 23422/2023** PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF ORDER OF THE HON'BLE SUPREME COURT IN SLP.NO.8519/2006 DATED 31.01.2018 Exhibit P2 TRUE COPY OF THE DECISION REPORTED IN 2011 KHC 4091 (JAGPAL SINGH AND OTHERS V. STATE OF PUNJAB AND OTHERS) - Exhibit P3 TRUE COPY OF THE JUDGMENT REPORTED IN 2016 SCC ONLINE 394 (LAVKUSH & ORS. V. STATE OF U.P.) Exhibit P4 TRUE COPY OF POSSESSION CERTIFICATE DATED 16.03.2017 - Exhibit P5 PHOTOGRAPH SHOWING THE UNAUTHORIZED CONSTRUCTION AROUND THE TREE ABUTTING THE NATIONAL HIGHWAY AND PAVEMENTS OF THE NATIONAL HIGHWAY - Exhibit P6 PHOTOGRAPH SHOWING THE UNUATHORISED CONSTRUCTION OF THE SHED Exhibit P7 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER DATED 16TH JANUARY, 2023 BEFORE THE EXECUTIVE ENGINEER (PWD ROADS) Exhibit P8 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER DATED 16TH JANUARY, 2023 BEFORE THE REVENUE DIVISIONAL OFFICER