Rajan .T.T v. State of Kerala & Others (W.P.(C) No. 316 of 2021 and Conn. Case No. 3207 of 2021)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 22[ND] DAY OF MARCH 2022 / 1ST CHAITHRA, 1944** ## **WP(C) NO. 316 OF 2021** ## **PETITIONER:** RAJAN .T.T AGED 64 YEARS S/O. THARU, THOMBRA HOUSE, PULLUVZAHI P.O., PERUMBAVOOR, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT-683541. BY ADVS. ALEXANDER JOSEPH SMT.TERESA C. JOSEPH ## **RESPONDENTS:** - 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, STATE SECRETARIAT, TRIVANDRUM-695001. - 2 LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM695033. - 3 THE DISTRICT COLLECTOR, ERNAKULAM, KAKKANAD, ERNAKULAM-682030. - 4 THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA MINI CIVIL STATION, MUDAVOOR P.O., MUVATTUPUZHA686669. - 5 TAHASILDAR, KUNNATHUNAD TALUK, PERUMBAVOOR-683542. - 6 THE VILLAGE OFFICER, PERUMBAVOOR-683542. - 7 THE SECRETARY, PERUMBAVOOR MUNICIPALITY, PERUMBAVOOR, ERNAKULAM DISTRICT-683542. - 8 NAFEESA, D/O. LATE K.K.MUSTAFA, UZHAVATHU VEEDU, MATHER NAGER, SOUTH KALAMASSERY-683104. - 9 SUHARA, 2 W.P.(C) No. 316 of 2021 & Conn.Case D/O. LATE MUSTAFA, THUKALIL PAURNAMI, LIBRARY ROAD, BEHIND MUNICIPAL LIBRARY, PERUMBAVOOR-683547. - 10 KHADER E.S., - ERATHAN HOUSE, ALLAPRA P.O., KANDANTHARA, PERUMBAVOOR683556. - 11 MUHAMMADALI V.K., VATHIYELI HOUSE, MANJAPETTY, MARAMPALLY, ERNAKULAM683105. - 12 ANAS K.K., KARAKUNNEL (H), ALLAPARA P.O., KANDARTHARA, PERUMBAVOOR683556. - 13 ASLAM K.K., KADAVIL HOUSE, S VELLARAPPILLY P.O., THEKKUMBHAGAM, SREEMOOLANAGARAM, ALUVA-683580. - 14 THE SECRETARY, JOINT COUNCIL OF STATE SERVICE ORGANISATION,KUNNATHUNAD TALUK COMMITTEE, PERUMBAVOOR-683542. - 15 ADDL.R15. TAHASILDAR(LAND RECORDS) KUNNATHUNAD TALUK, PERUMBAVOOR-683542. (ADDL. R15 IS IMPLEADED AS PER ORDER DATED 08-01-2021 IN IA 1/2021 IN WP(C) 316/2021). BY ADVS. GOVERNMENT PLEADER SHRI.MATHEW B.KURIAN, SC, PERUMBAVOOR MUNICIPALITY SRI.VINOD RAVINDRANATH SRI.V.M.KRISHNAKUMAR SMT.MEENA.A. SRI.K.C.KIRAN SMT.M.R.MINI SRI.M.DEVESH SHRI.ANISH ANTONY ANATHAZHATH SRI.ASHWIN SATHYANATH SHRI.THAREEQ ANVER 3 W.P.(C) No. 316 of 2021 & Conn.Case ## SMT.RESMI THOMAS G.P. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2022, ALONG WITH WP(C).3207/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 4 W.P.(C) No. 316 of 2021 & Conn.Case ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 22[ND] DAY OF MARCH 2022 / 1ST CHAITHRA, 1944** ## **WP(C) NO. 3207 OF 2021** ## **PETITIONERS:** - 1 NAFEESA AGED 63 YEARS D/O. LATE MUSTHAFA,UZHUVATH VEEDU, MATHER NAGAR, SOUTH KALAMASSERY, 682 033. 2 SUHARA, AGED 59 YEARS D/O. LATE MUSTHAFA, THUKALIL PAURNAMI LIBRARY ROAD, BEHIND MUNICIPAL LIBRARY, PERUMBAVOOR 683 547. BY ADVS. T.KRISHNANUNNI (SR.) SRI.VINOD RAVINDRANATH SMT.MEENA.A. SMT.M.R.MINI SRI.K.C.KIRAN SRI.M.DEVESH SRI.ASHWIN SATHYANATH SHRI.ANISH ANTONY ANATHAZHATH SHRI.THAREEQ ANVER ## **RESPONDENTS:** - 1 STATE OF KERALA(CORRECTED) REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, THIRUVANANTHAPURAM 695 001. 5 W.P.(C) No. 316 of 2021 & Conn.Case THE DESCRIPTION OF R1 OCCURRING IN THE CAUSE TITLE OF THE WP(C) IS SUO MOTU CORRECTED AS 'PRINCIPAL SECRETARY TO GOVERNMENT, AS PER ORDER DATED 09-02-2021 IN THE WP(C)3207/2021. - 2 THE DISTRICT COLLECTOR, ERNAKULAM, 682 030, CIVIL STATION, KAKKANAD. - 3 LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM 695 033. - 4 ANAS, S/O. KASIM, KARAKUNNEL HOUSE, ANNAYIKKANNAM KARA, KARIKKODE VILLAGE, THODUPUZHA TALUK, 685 584. - 5 E.S. KHADER, S/O. SULAIMAN, EROTHAN VEEDU, KUNNATHUNADU TALUK, VENGOLA VILLAGE, VENGOLA KARA, ALLAPRA P.O. 683 556. - 6 ASLAM, S/O. KAMAL, KADAVIL HOUSE, VELLARAPPILLY, PERUMBAVOOR 683 580. BY ADV SRI.V.M.KRISHNAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2022, ALONG WITH WP(C).316/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 6 W.P.(C) No. 316 of 2021 & Conn.Case ## **JUDGMENT** **Dated this the 22nd day of March, 2022 .** The afore two cases require to be disposed of together since the claims of the rival parties revolve around the same building and the prayers sought for are opposing each other. 2. For the sake of convenience, however, reference to the parties and pleadings in these cases, unless specifically stated, will be as are available in W.P. (C)No.316/2021. 3. The subject matter of these writ petitions is a building or a portion thereof, which is situated in a Government “puramboke” land, very close to the Perumbavoor Muncipal Bus Stand. It appears that the petitioner in W.P.(C).No. 3207 of 2021 and others were 7 W.P.(C) No. 316 of 2021 & Conn.Case sought to be evicted from the said building through Ext.P1 and that they subsequently made an application for its lease before the District Collector. 4. While so, W.P.(C).No.24142 of 2011 had been filed by a certain Sri.Abdul Latheef before this Court, which culminated in Ext.P2 judgment, directing the District Collector to verify whether there was any lease or assignment over the building made by the Government in favour of the petitioners in W.P.(C).No.3207 of 2021, and if not, to take over and deal with it in accordance with law. 5. The petitioner in W.P.(C).No.316 of 2021 alleges that taking advantage of the observations in Ext.P2, the Government is now attempting to grant lease or assignment to the petitioners in W.P.(C).No.3207 of 2021 over the same building/area from where they have been evicted, contending that this is illegal and unlawful; 8 W.P.(C) No. 316 of 2021 & Conn.Case ## and thus praying that this be interdicted. 6. The submissions of Smt.Akhilasree Bhaskaran – learned counsel for the petitioner in W.P.(C).No.316 of 2021, were, however, answered by Sri.Renjith Thamban – learned Senior Counsel, instructed by Sri.V.M.Krishnakumar, learned counsel for the party respondents – two of whom are the petitioners in W.P. (C).No.3207 of 2021 – arguing that the area in question is not required for any public purpose and that his client has produced several documents on record in substantiation, including Ext.R13(g). He contended that attempt of the petitioner in W.P.(C).No.316 of 2021 is to frustrate and pre-empt his client’s rights to seek an assignment or a lease of the building/area in question and thus prayed that said writ petition be dismissed, particularly because the Government is yet to take any decision on his clients’ pending applications. He 9 W.P.(C) No. 316 of 2021 & Conn.Case concluded his submissions asserting that, in fact, the Government has granted lease over various other buildings on the same line in same area and therefore, that attempt of the petitioner must construe to be mischievous. 7. Smt.A.Meena – learned counsel for the petitioners in W.P.(C) No.3207/2021 – who are also the respondents 8 and 9 in W.P.(C)No. 316/2021 – submitted that her clients have been constrained to file a separate writ petition, since they were enjoying the property for the last 57 years till their eviction. She added that they have a preferential right of assignment, but that same was rejected through Exhibit P6 and affirmed through Exhibit P10 by the Government. She argued that both these orders are in error, since the latter was, in fact, based on a statutory appeal filed by her clients, but erroneously treated as a Revision. She, therefore, prayed 10 W.P.(C) No. 316 of 2021 & Conn.Case that this writ petition be allowed and Exhibits P6 and P10 set aside; with a consequential direction to the first respondent to consider Exhibits P7 and P8 in the said writ petition, after affording her clients an opportunity of being heard. 8. Sri.K.T.Thomas – learned Standing Counsel appearing for the Municipality, submitted that his client has already objected before the Government against the application for lease/assignment preferred by the party respondents in W.P.(C).No.316 of 2021/petitioners in W.P. (C).No.3207 of 2021 because the area in question is certainly required for the development of the Municipal Bus Stand and other public purposes. He submitted that hence, if this Court is inclined to direct the Government to re-consider the applications of the said persons, then the objections of the Municipality may also be ordered to be taken into account and they be given an opportunity 11 W.P.(C) No. 316 of 2021 & Conn.Case of being properly heard. 9. Sri.Resmi Thomas – learned Government Pleader, affirmed that Government had not taken any decision on the applications made by the party respondents in W.P.(C).No.316 of 2021/the petitioners in W.P.(C).No.3207 of 2021, since they were incapacitated from doing so on account of the declarations of this Court in **Karimtharuvi v. State of Kerala [1999 (1) KLT 33]** , to the effect that they obtain no revisional power under the Kerala Land Assignment Rules. She then added that if this Court is inclined to direct the Government to reconsider the claims of the said parties, it can be done after taking into account all relevant aspects and after considering every germane input, including as to whether the area in question is required for public purposes. She, however, prayed that no affirmative declarations be made by this Court in favour of either of 12 W.P.(C) No. 316 of 2021 & Conn.Case the sides and that it be left to the Government to decide appositely, in terms of law. 10. In reply, Smt.Akhilasree Bhaskaran, invited my attention to Ext.P12 communication of the District Collector, wherein, said Authority, as recently as on 06.07.2020, has expressly recorded that, as per the proposed Master Plan of the Perumbavoor Municipality, the area in question is required for the purpose of the development of the Road. She submitted that, therefore, the Government cannot assign or lease the said property or the building thereon to the party respondents in W.P. (C).No.316 of 2021, as they have now sought for. 11. I have considered the afore dialectical contentions very carefully on the touchstone of the various materials available on record. 12. It is uncontested that even though applications have been made by the party respondents for 13 W.P.(C) No. 316 of 2021 & Conn.Case assignment or lease of the building/area in question, they have not yet been considered by the Government on its merits yet, because, as is evident from Exhibit P10 in W.P.(C)No. 3207/2021, they were under the impression that they were incapacitated from doing so since no revisional power is vested in them. This impression appears to have been gathered because they mistook Exhibit P7 in W.P.(C)No.3207/2021 to be a Revision and not an Appeal. I do not propose to speak on this affirmatively because it is now admitted by both sides that there is no impediment for the Government in considering the request of the party respondents in W.P. (C)No.316/2021 or the petitioners in W.P. (C)No.3207/2021 on its merits, after considering all aspects. 13. That said, certainly, if the area is required for a public purpose, it will be up to the Government to advert 14 W.P.(C) No. 316 of 2021 & Conn.Case to the same and take an apposite decision on the applications of the party respondents in W.P.(C).No.316 of 2021/petitioners in W.P.(C).No.3207 of 2021 for lease or assignment. However, as long as no such final decision has been taken, I do not think that it will be justified or prudent for this Court to intervene and pre-empt such decision, particularly because the Government can, after evaluation of all relevant aspects, even decide against the applications of the party respondents. As long as this has not been done, I am certainly of the view that petitioner cannot impell a claim that Government cannot even consider the applications and must be interdicted from doing so. 14. The above being so said, even when the Government considers any application for assignment/lease of the building/area in question, they must surely advert to the objections of the Municipality, 15 W.P.(C) No. 316 of 2021 & Conn.Case as also to Ext.P12 proceedings of the District Collector and to the provisions of the proposed Master Plan of Perumbavoor Municipality. I am, certain that if this is done, most of the apprehensions of the petitioners in both cases would stand allayed. Resultantly, I dispose of these writ petitions, without entering into the merits of any other contentions of the rival parties and leaving liberty to the competent Authority of the Government to consider and pass appropriate orders on the applications preferred by the party respondents in W.P.(C).No.316 of 2021/petitioners in W.P.(C).No.3207 of 2021 for assignment or lease; which shall, however, be done only after affording them, as also the petitioner in W.P.(C).No.316 of 2021 and the officers concerned of the Municipality, an opportunity of being heard and after evaluating their objections, particularly Ext.P12 proceedings of the District Collector; 16 W.P.(C) No. 316 of 2021 & Conn.Case thus culminating in an appropriate order and necessary action thereon. As a corollary, Exhibit P10 in W.P.(C) No.3207/2021 will stand set aside and the Government will consider Exhibit P7 therein, construing it as an Appeal in terms of the afore directions. Needless to say, since I have not considered any of the contentions of the rival parties on its merits, all of them are left open to be pursued appropriately in future, if it becomes so warranted. **Sd/DEVAN RAMACHANDRAN JUDGE** Raj/23.03.2022. 17 W.P.(C) No. 316 of 2021 & Conn.Case ## **`APPENDIX OF WP(C) 3207/2021`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1TRUE COPY OF THE SALE DEED NO. 2462 OF 1962 DATED 17.07.1962. ``` - `EXHIBIT P2 TRUE COPY OF THE TAX RECEIPTS.` - `EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 22.06.2020 FILED UNDER RULE 7 (1) OF THE KLA RULES, 1964 BEFORE THE 2ND RESPONDENT.` - `EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 08.07.2020 IN WPC NO. 13669/2020.` - `EXHIBIT P5 TRUE COPY OF THE WRITTEN SUBMISSIONS DATED 19.10.2020 FILED BEFORE THE DISTRICT COLLECTOR.` - `EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS DATED 06.11.2020 OF THE 2ND RESPONDENT.` - `EXHIBIT P7 TRUE COPY OF THE APPEAL DATED 18.11.2020 FILED UNDER RULE 21(1) OF THE KLA RULES, 1964 BEFORE THE 2ND RESPONDENT.` - `EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED 18.11.2020 FOR STAY FILED ALONG WITH EXT. P8 APPEAL.` - `EXHIBIT P9 TRUE COPY OF THE INFORMATION DATED 22.12.2020 RECEIVED UNDER THE RTI ACT.` - `EXHIBIT P10 TRUE COPY OF THE ORDER DATED 07.12.2020 ISSUED BY THE 1ST RESPONDENT.` 18 W.P.(C) No. 316 of 2021 & Conn.Case ## **`APPENDIX OF WP(C) 316/2021`** ``` PETITIONER EXHIBITS ``` - `EXHIBIT P1` - `TRUE COPY OF THE SKETCH SHOWING THE PERUMBAVOOR BUS STAND ROAD, ALUVA - MUNNAR ROAD, PP ROAD, BUS STAND LINK ROAD AND EVICTED SHOP BUILDINGS IN GOVERNMENT PURAMBOKE LAND.` - `EXHIBIT P2` - `TRUE COPY OF THE JUDGMENT DATED 30.10.2017 IN WP(C) NO.24142/2011 OF THE HON'BLE HIGH COURT OF KERALA.` - `EXHIBIT P3 TRUE COPY OF THE COMMON JUDGMENT DATED 30.11.2018 IN WP(C) NO.20602/2018 OF THE HIGH COURT OF KERALA.` - `EXHIBIT P4 TRUE COPY OF THE EVICTION NOTICE DATED 18.10.2019 OF THE 6TH RESPONDENT` - `EXHIBIT P5 TRUE COPY OF THE APPLICATION DATED 4.11.2019 OF THE 14TH RESPONDENT RECEIVED UNDER RIGHT TO INFORMATION ACT.` - `EXHIBIT P5(A) TRUE COPY OF THE MAHAZAR SUBMITTED BY THE 6TH RESPONDENT IN RESPECT OF EXHIBIT P5 RECEIVED UNDER RIGHT TO INFORMATION ACT.` - `EXHIBIT P5(B) TRUE COPY OF THE REPORT OF THE 6TH RESPONDENT TO THE 5TH RESPONDENT RECEIVED UNDER RIGHT TO INFORMATION ACT.` - `EXHIBIT P5(C) ORIGINAL OF THE REPORT OF THE 5TH` 19 W.P.(C) No. 316 of 2021 & Conn.Case ``` RESPONDENT TO THE 3RD RESPONDENT RECEIVED UNDER RIGHT TO INFORMATION ACT. ``` - `EXHIBIT P5(D)` - `TRUE COPY OF THE SKETCH OF THE PROPERTY PREPARED BY THE 6TH RESPONDENT RECEIVED UNDER RIGHT TO INFORMATION ACT.` - `EXHIBIT P6` - `TRUE COPY OF THE APPLICATION DATED 18.12.2020 OF THE 8TH AND 9TH RESPONDENTS RECEIVED UNDER RIGHT TO INFORMATION ACT.` - `EXHIBIT P6(A)` - `TRUE COPY OF THE REPORT NO. 317/2020 OF THE 6TH RESPONDENT TO THE 5TH RESPONDENT ON EXHIBIT P6 APPLICATION.` - `EXHIBIT P6(B)` - `TRUE COPY OF THE REPORT SHOWING MARKET VALUE OF THE PROPERTY ISSUED BY THE 6TH RESPONDENT TO THE 5TH RESPONDENT.` - `EXHIBIT P6(C)` - `TRUE COPY OF THE SKETCH OF THE PROPERTY PREPARED BY 6TH RESPONDENT.` - `EXHIBIT P6(D)` - `TRUE COPY OF THE REPORT OF THE 5TH RESPONDENT TO 3RD RESPONDENT RECEIVED UNDER RIGHT TO INFORMATION ACT.` - `EXHIBIT P7` - `TRUE COPY OF THE APPLICATION DATED 13.2.2020 OF THE 10TH RESPONDENT RECEIVED UNDER RIGHT TO INFORMATION ACT.` - `EXHIBIT P8 TRUE COPY OF THE APPLICATION DATED 13.2.2020 OF THE 11TH RESPONDENT RECEIVED UNDER RIGHT TO INFORMATION` 20 W.P.(C) No. 316 of 2021 & Conn.Case ``` ACT. ``` ``` EXHIBIT P9 ``` ``` TRUE COPY OF THE APPLICATION DATED 13.2.2020 OF THE 12TH RESPONDENT RECEIVED UNDER RIGHT TO INFORMATION ACT. ``` - `EXHIBIT P10` - `TRUE COPY OF THE APPLICATION DATED 13.2.2020 OF THE 13TH RESPONDENT RECEIVED UNDER RIGHT TO INFORMATION ACT.` - `EXHIBIT P11` - `TRUE COPY OF THE REPRESENTATION DATED 1.1.2021 OF THE PETITIONER.` - `Exhibit P12 TRUE COPY OF THE ORDER NO.DC EKM.3260/2020/L2 DATED 06/07/2020.` ## `RESPONDENT ANNEXURES` - `Annexure R5(A), TRUE COPY OF REPORTS DATED 08.06.2020 (B), (C), (D), SUBMITTED BEFORE THE DISTRICT COLLECTOR.` - `(E)` - `EXHIBIT R13(a)` - `TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC(C) 26358 OF 2020 DATED 03.02.2021.` - `EXHIBIT R13(b) PHOTOGRAPHS SHOWING THE BUILDING OF PETITIONERS AND BUILDING UNDER CONSIDERATION.` - `EXHIBIT R13(c)` - `TRUE COPY OF THE REPORT NO.137/20 SUBMITTED BY THE VILLAGE OFFICER ON THE BASIS OF APPLICATION FILED BY RESPONDENT NO.10.` 21 W.P.(C) No. 316 of 2021 & Conn.Case ``` EXHIBIT R13(d) ``` - `EXHIBIT R13(E)` - `EXHIBIT R13(F)` - `EXHIBIT R13(G)` - `TRUE COPY OF THE REPORT NO.135/20 SUBMITTED BY THE VILLAGE OFFICER ON THE BASIS OF APPLICATION FILED BY RESPONDENT NO. 12` - `TRUE COPY OF THE REPORT NO.136/20 SUBMITTED BY THE VILLAGE OFFICER ON THE BASIS OF APPLICATION FILED BY RESPONDENT NO.13.` - `TRUE COPY OF THE APPLICATION DATED 17.07.2020 FILED UNDER RIGHT TO INFORMATION ACT BY VAHID C.J.` - `TRUE COPY OF REPLY FROM STATE PUBLIC INFORMATION OFFICER DATED 21.08.2020 TO VAHID C.J.`