Lekha C. Nair @ S. Lekha Nair v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 21ST DAY OF JUNE 2017/31ST JYAISHTA, 1939** **WP(C).No. 35791 of 2016 (Y) ----------------------------** **PETITIONERS :** **1. LEKHA C.NAIR @ S.LEKHA LEKHA. AGED 52 YEARS,D/O. SAROJINIAMMA, PILLAVILAKATHU VEETIL,T.C.41/281, PAVITHRA NAGAR-86, KURYATHI, MANACAUD PO.,THIRUVANANTHAPURAM** **2. LETHA .P.NAIR @ LATHA AGED 55 YEARS, D/O. SAROJINIAMMA, PILLAVILAKATHU VEETIL, T.C.41/281, PAVITHRA NAGAR-86,KURYATHI, MANACAUD PO., THIRUVANANTHAPURAM** **BY ADVS.SRI.ANIL K.NAIR SRI.AYYAPPAN SANKAR SRI.JAYAN JOHN SMT.S.HRIDYA** **RESPONDENTS :** **1. STATE OF KERALA REP. BY PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, STATUE, THIRUVANANTHAPURAM-695001** **2. THE DISTRICT COLLECTOR COLLECTORATE, CIVIL STATION, KUDAPPANAKKUNNU PO., THIRUVANANTHAPURAM-695001** **3. REVENUE DIVISION OFFICER CIVIL STATION, KUDAPPANAKKUNNU P.O., THIRUVANANTHAPURAM-695001** ## **WP(C).No. 35791 of 2016 (Y)** **--------------------------** **4. ADDITIONAL TAHSILDAR TALUK OFFICE, THIRUVANANTHAPURAM-695001** **5. TALUK SURVEYOR THIRUVANANTHAPURAM-695001** - ***ADDL.R6 TO R15 IMPLEADED :** - **------------------------** **6. INDU M.S D/O MURALEEDHARAN NAIR, AGED 37 YEARS, TC73/122, KURIYATHI, MANACAUD PO, THIRUVANANTHAPURAM-009.** **7. VIMAL KUMAR, S/O RAGHAVAN PILLAI, AGED 58 YEARS, CHITHIRA, TC 41/280(1), KURIYATHI, MANACAUD PO, THIRUVANANTHAPURAM-009.** **8. NANDINI .K, D/O KRISHNA SWAMY,** - **AGED 49 YEARS, PNRA 84, 'SUVAAS', KURIYATHI, MANACAUD PO, THIRUVANANTHAPURAM-009.** **9. N.VISWANATHAN, S/O V.NARASIMHA RAO, AGED 63 YEARS, TC 41/296, 'VISWAS', PNRA-82, MANACAUD PO, THIRUVANANTHAPURAM-009.** ## **10. N.BALA MURUGAN** - **S/O C.NEELAKANTA PILLAI, AGED 50 YEARS, TC41/307(1), KURIYATHI, PNRA-81, MANACAUD PO, THIRUVANANTHAPURAM-009.** **11. SANTHOSH KUMAR. R, S/O RAGHAVAN PILLAI, AGED 43 YEARS, 'HARI BHAVAN' KUNNUMPURAM, CHARUVILA, MANACAUD.** **12. SARALA KUMARI S.N D/O P.NARAYANA PILLAI, AGED 65 YEARS, TC41/290(1), PNRA-83, KURIYATHI, MANACAUD PO, THIRUVANANTHAPURAM-009.** **13. SUDHEER .S., S/O V.SUDHAKARAN, AGED 42 YEARS, TC 41/330(1), PNRA-83, KURIYATHI, MANACAUD PO, THIRUVANANTHAPURAM-009.** **WP(C).No. 35791 of 2016 (Y)** **---------------------------** **14. K.THULASEEDHARAN** **S/O K.KUNJU RAMAN, AGED 60 YEARS, TC 73/115, PILLAVILAKOM, MANACAUD PO, THIRUVANANTHAPURAM-009.** **15. K.G.MURALEEDHARAN NAIR S/O GOPALA PILLAI, AGED 75 YEARS, CHITHIRA, TC41/290, KURIYATHI, MANACAUD PO, THIRUVANANTHAPURAM-009.** - ***ADDL. R6 TO 15 ARE IMPLEADED AS PER ORDER DT 10/2/2017 IN IA 19030/2016** **R1 TO R5 BY GOVERNMENT PLEADER** **SRI. RAVIKRISHNAN ADDL.R6 TO R15 BY ADV. SRI.LIJU.V.STEPHEN BY ADV. SMT.INDU SUSAN JACOB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **WP(C).No. 35791 of 2016 (Y)** ## **----------------------------** ## **APPENDIX** |**PETITIONER(S)'**|**EXHIBITS**| |---|---| |**-----------------------**|| |**EXHIBIT P1:**|**TRUE COPY OF SETTLEMENT DEED NO.634/1988**| ||**OF CHALAI S.R.O.**| |**EXHIBIT P2:**|**TRUE COPY OF TAX REMITANCE RECEIPT DATED**| ||**18.06.2013 IN THE NAME OF 1ST PETITIONER**| |**EXHIBIT P3:**|**TRUE COPY OF THE TAX RECEIPT DATED**| ||**13.1.2016 IN THE NAME OF 1ST PETITIONER**| |**EXHIBIT P4:**|**TRUE COPY OF THE TAX RECEIPT DATED**| ||**5.1.2016 IN THE NAME OF 2ND PETITIONER**| |**EXHIBIT P5:**|**TRUE COPY OF THE NOTICE DATED NIL ISSUED**| ||**BY 4TH RESPONDENT**| |**EXHIBIT P6:**|**TRUE PHOTOCOPY OF MEMORANDUM OF APPEAL IN**| ||**APPEAL NO.D/18641/2016 FILED AGAINST**| ||**EXHIBIT P5 ORDER BEFORE THE 3RD RESPONDENT**| |**EXHIBIT P7:**|**TRUE COPY OF THE STAY PETITION IN EXHIBIT**| ||**P6 APPEAL.**| |**RESPONDENT(S)'**|**EXHIBITS**<br>**:**| |**-----------------------**|| |**EXT.R6(a):**|**COPY OF THE COMPLAINT MADE by the**| ||**RESIDENTS OF THE LOCALITY TO THE RDO**| ||**THIRUVANANTHAPURAM**| |**EXT.R6(b):**|**COPY OF THE ORDER DT 28/2/2017 ISSUED BY**| ||**THE RESPONDENT.**| |**EXT.R6(c):**|**COPY OF THE SAID REPORT**| |**EXT.R6(d):**|**COPY OF THE RELEVANT EXTRACTS OF THE BASIC**| ||**LAND TAX REGISTER.**| |**EXT.R6(e):**|**COPY OF THE RELEVANT EXTRACT OF THE**| ||**SETTLEMENT REGISTER OF TRIVANDRUM TALUK.**| ||**//TRUE COPY//**| ||**P.A. TO JUDGE**| |**bp**|| ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 35791 of 2016 (Y) -----------------------------------------Dated: 21[st] June, 2017 ## **J U D G M E N T** The petitioner is aggrieved with Ext.P5 order of eviction under Rule 13A of the Kerala Land Conservancy Rules, 1958. By Ext.P5 the petitioner has been directed to be evicted from an extent of 93 square meter of puramboke. The emergency clause has been invoked to avoid traffic block in the road, as is seen from Ext.P5. The petitioner had a contention that the Additional Tahsildar does not have jurisdiction to issue the said order. However, the learned Counsel for the 6[th] respondent produces before me a notification which authorises the Additional Tahsildar. In such circumstance, the said ground is not sustainable. ## **W.P.(C) No. 35791/2016** **-2-** 2. The further ground raised by the petitioner is that Ext.P5 requires vacation of land within one day and does not even indicate as to the exact measurement and description of the land from which eviction is sought. The description being merely confined to the extent, it is not clear as to the portion from which the eviction is ordered, is the specific contention taken by the petitioner. It is also urged that there is no notice prior to Ext.P5 which may not be necessary in a proceeding under Rule 13A, but, however, a survey to determine the encroachment has to be necessarily with notice to the petitioner. 3. The learned Counsel for the 6[th] respondent takes me through the order of the Additional Tahsildar, which led to Ext.P6. It is submitted by the 6[th] respondent that the encroachment into the road has been causing serious difficulties to the other residents ## **W.P.(C) No. 35791/2016** **-3-** in the locality. It is only in public interest that the aforesaid order has been issued and the Village Officer had conducted a measurement, with notice to the petitioner. 4. Despite the assertion of a notice by the Village Officer, there is nothing produced in the records, either by the additional respondents or by the State to evidence a notice having been issued to the petitioner. Ext.R6(c), relied on by the 6[th] respondent, also does not indicate a notice having been issued. Further, the eviction at Ext.P5 is undated and merely seeks eviction from 93 square meters of property, without any exact demarcation of the portion which is sought to be evicted. 5. Apposite would be reference to the decision reported in **Muhammed Kutty v. Tahsildar – 2013 (1) KLT 133** paragraph 4 of which is extracted **-4-** ## **W.P.(C) No. 35791/2016** ## hereunder: “4. Learned Government Pleader on getting instructions submitted that a survey was conducted and thereafter the present steps have been taken. Even if a survey is conducted, the petitioner will have to be communicated about the details of the property covered by the alleged encroachment, if any, as otherwise if the petitioner is asked to remove the building it may cause difficulty to establish his claim later. In a matter like this where serious disputes are there with regard to the allegations itself about the encroachment, the parties are entitled for getting due notices as well as information regarding the alleged encroached area and other details. No such details are furnished in Ext.P3.” 5. Going by the aforesaid dictum, it is clear that the petitioner should have been put to notice of the ## **W.P.(C) No. 35791/2016** **-5-** survey conducted and also of the exact description of the property from which eviction is sought. In such circumstance, Ext.P5 is set aside. The Additional Tahsildar will issue a fresh notice to the petitioners and carry out measurement of the property, if necessary, with notice to the additional respondents 6 to 15. The proceedings shall be concluded in accordance with the Kerala Land Conservancy Act, 1957. The writ petition is allowed without any observation on the eviction as such, which has to be proceeded with, in accordance with law. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 22/6/17