RP.737/18 in WP(C).41702/17 & WP(C).28889/18

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ||**THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN**| |---|---| |**TUESDAY ,THE 18TH DAY OF DECEMBER 2018 / 27TH AGRAHAYANA, 1940**|| ||**RP.No. 737 of 2018 IN WP(C). 41702/2017**| |**REVIEW PETITIONER/S**<br>**:**|| |**1**|**SUSEEL KUMAR**| ||**AGED 1 YEARS**| ||**S/O.KUNJUKUNJU, MINI BHAVAN, MUTHUPILAAKKAD,**| ||**PADINJATTINMKARA MURI, MUTHUPILLAKKAD P.O.,**| ||**SASTHAMCOTTA, KOLLAM, - 690520. KOLLAM**| |**2**|**SHEMI**| ||**AGED 1 YEARS**| ||**W/O.SUSEEL KUMAR, MINI BHAVAN, MUTHUPILAAKKAD,**| ||**PADINJATTINMKARA MURI, MUTHUPILLAKKAD P.O.,**| ||**SASTHAMCOTTA, KOLLAM, - 690520.**| |**3**|**INDIRA,**| ||**AGED 1 YEARS**| ||**W/O.NANU, MINI BHAVAN, MUTHUPILAAKKAD,**| ||**PADINJATTINMKARA MURI, MUTHUPILLAKKAD P.O.,**| ||**SASTHAMCOTTA, KOLLAM, - 690520. KOLLAM**| ||**BY ADVS.**| ||**ALEX.M.SCARIA**| ||**SMT.SARITHA THOMAS**| |**RESPONDENT/S**<br>**:**|| |**1**|**P.G.VINOD KUMAR**| ||**AGED 1 YEARS**| ||**S/O.S/O.GANGATHARAN PILLAI, SREELAKOM HOUSE,**| ||**MUTHUPILLAKKAD, PADINJATTINMKARA MURI, MUTHUPILLAKKAD**| ||**P.O., SASTHAMCOTTA, KOLLAM, - 690520.**| |**2**|**STATE OF KERALA,**| ||**REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,**| ||**REVENUE DEPARTMENT, SECRETARIAT, THIRUVNAANTHAPURAM,**| ||**PIN-695001.**| 2 _**RP.737/18 & WP(C).28889/18**_ - **3 THE DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION P.O., KOLLAM-691013** - **4 THE TAHSILDAR, TALUK OFFICE, KUNNATHOOR, KUNNATHOOR P.O., KOLLAM690540.** - **5 THE VILLAGE OFFICER, SASTHAMCOTTA VILLAGE, SASTHAMCOTTA P.O., KOLLAM690520.** - **6 THE ASSISTANT EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, NATIONAL HIGH WAY BYE-PASS SUB WING, THEVALLY P.O., KOLLAM-691009.** ## **OTHER PRESENT:** **SR.GP B VINOD** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 3.10.2018, ALONG WITH WP(C).28889/2018, THE COURT ON 18.12.2018 PASSED THE FOLLOWING:** 3 _**RP.737/18 & WP(C).28889/18**_ ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY ,THE 18TH DAY OF DECEMBER 2018 / 27TH AGRAHAYANA, 1940** ## **WP(C).No. 28889 of 2018** ## **PETITIONER/S:** **1 SUSHEEL KUMAR AGED 39 YEARS S/O KUNJUKUNJU, MINI BHAVAN, MUTHUPILAAKKAD. PADINJATTINMKARA MURI, MUTHUPILLAKKAD P.O, SASTHAMCOTTA KOLLAM 690520** **2 SHEMI AGED 1 YEARS W/O. SUSEEL KUMAR,MINI BHAVAN, MUTHUPILAAKKAD. PADINJATTINMKARA MURI, MUTHUPILLAKKAD P.O, SASTHAMCOTTA KOLLAM 690520 3 INDIRA AGED 1 YEARS W/O. NANU, MINI BHAVAN, MUTHUPILAAKKAD. PADINJATTINMKARA MURI, MUTHUPILLAKKAD P.O, SASTHAMCOTTA KOLLAM-690520** **BY ADVS. ALEX.M.SCARIA SMT.SARITHA THOMAS** **RESPONDENT/S: 1 P.G.VINOD KUMAR S/O GANGADHARAN PILLAI, SREELAKOM HOUSE, MUTHUPILLAAKADU, PADINJATTINKARA MURI, MUTHUPPILAKKADU P.O, SASTHAMCOTTA KOLLAM 2 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM695 001** 4 _**RP.737/18 & WP(C).28889/18**_ |**3**|**THE DISTRICT COLLECTOR**| |---|---| ||**COLLECTORATE, CIVIL STATION P.O., KOLLAMANA-691 013**| |**4**|**THE TAHSILDAR**| ||**KUNNATHOOR, KUNNATHOOR P.O., KOLLAM-690 540**| |**5**|**THE VILLAGE OFFICER**| ||**SASTHAMCOTTA VILLAGE, SASTAHMCOTTA P.O., KOLLAM-690**| ||**520**| |**6**|**THE ASSISTANT EXECUTIVE ENGINEER,**| ||**PUBLIC WORKERS DEPARTMENT, NATIONAL HIGH WAY BYE-PASS**| ||**SUB WING, THEVALLY P.O., KOLLAM-691 009**| BY SR.GOVT.PLEADER SRI.B.VINOD **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 3.10.2018, ALONG WITH RP.737/2018, THE COURT ON 18.12.2018 DELIVERED THE FOLLOWING:** ## **ANU SIVARAMAN, J. ----------------------------------------------R.P.737/18 in W.P(C).41702/17 & W.P(C).No. 28889 of 2018 ----------------------------------------------Dated this the 18[th] day of December, 2018** ## **O R D E R** I have heard learned counsel for the review petitioners, the learned counsel appearing for the writ petitioner and the learned Government Pleader. 2. Though notice was issued in the writ petition to the review petitioners, no pleadings had been placed on record by them. The writ petition had been disposed of as follows: _“Having considered the contentions advanced on either side, I am of the opinion that the findings as contained in the reports of the revenue authorities as well as the PWD authorities with regard to the encroachment made on the puramboke road does not have to await the decision of the civil court. Since it is the clear case of respondents 1 to 5 that the PWD road puramboke has been encroached by respondents 6 to 8 and construction are being made on the same, the proceedings in accordance with the Land Conservancy Act are liable to be proceeded with in accordance with law. It is only in matters which are covered by the injnction order, further proceedings may have to await the vacation of the interim order. Action shall be taken by respondents 1 to 5 in terms of the Kerala Land Conservancy Act with regard to the puramboke land and the encroachment made thereon, within a period of two months from the date of receipt of a copy of this judgment.”_ 6 _**RP.737/18 & WP(C).28889/18**_ 3. It is stated that the finding that the land conservancy proceedings initiated do not have to await the culmination of Exhibit P14 suit was completely misconceived. It is submitted that the suit had been filed by the petitioners with regard to the 44 square metres of property seeking an injunction against the respondents including the official respondents herein from entering into the property or evicting the petitioner therefrom. It is stated that the review petitioners were unable to place proper pleadings on record and to defend the matter effectively. 4. After filing the review petition, the petitioner has approached this Court by filing W.P(C).No.28889 of 2018 challenging Exhibits P4 and P7 notices and seeking adjudication of the issue on merits in Exhibit P5 suit. 5. The decisions of this Court in _**Kunhikrishnan T.K. v. State of Kerala**_ [2018(1) KHC 813] and _**Harrisons Malayalam Limited (M/s.), Cochin v. State of Kerala**_ [2014(4) KHC 245] and of the Division Bench in _**Saraf Arts and Science College, Padne v. State of Kerala**_ [2018(4) KHC 577 (DB)] and _**Nandakumar v. District Collector**_ [2018(1) KLT 1019] are relied upon to contend that the direction to the respondents to carry out the evictions in spite of the pendency of the suit regarding title to the very same property was unwarranted. It is submitted that a suit claiming title to an extent of property which is claimed by the revenue as Government land is not precluded by Section 20A of the Kerala Land Conservancy Act. Learned counsel for the petitioner submits that since the very same issue is pending 7 _**RP.737/18 & WP(C).28889/18**_ consideration before a civil court, decision can be taken only on the basis of the finding of the civil court on the question of title. 6. The learned counsel for the writ petitioner as well as the learned Government Pleader would contend that the pendency of an injunction suit cannot affect the proceedings under the Land Conservancy Act for eviction from Government land. 7. It is clear that Exhibit P14 suit is pending consideration before the Munsiff's Court, Sasthamkottah. The reliefs sought for in the suit are essentially for an injunction against defendants 1 and 2 therein not to encroach into the property covered by sale deed No.1578/86 of the Sasthamcotta SRO. The petitioners raised a claim that there is no Government puramboke in the petitioner's possession. The petitioner claims undisputed possession over the same. In the above view of the matter, the said suit is liable to be considered and disposed of before further steps are taken by the respondents under the Kerala Land Conservancy Act, it is contended. 8. The review petitioners admit that there is a public pathway adjacent to their property. The writ petitioner is a person using the pathway. In case the pathway is clearly identifiable from the revenue records and survey sketches, the proceedings against the encroachment, if any, on the same are liable to go on. In spite of filing complete pleadings, copy of the title deeds are not produced by the review petitioners, either in the review petition or in the writ petition filed by 8 _**RP.737/18 & WP(C).28889/18**_ them. In case there is Government puramboke land in the petitioner's possession, the official respondents are well within their powers in seeking eviction from the same. An injunction suit filed on the strength of title cannot injunct proceedings for eviction from Government land. What has essentially to be considered is whether the review petitioners have land in their possession in excess of what they claim title to and whether such land forms part of Government land in terms of land records and survey plans. This aspect of the matter is liable to be considered before steps for eviction are taken. 9. Since a civil suit raising these self same aspects is pending with the official respondents on the party array, it is for the official respondents to obtain appropriate orders in the said suit and to continue with the proceedings. In case they have a case that the Government puramboke in the petitioner's possession does not form part of the extent of land to which the petitioner claims title, that aspect is also to be brought to the notice of the Munsiff's Court and appropriate further steps can be taken thereafter. However, a civil suit cannot be used as an excuse to frustrate action for recovery of Government land. 10. In the above view of the matter, the review petition is allowed. The official respondents are directed to hear the parties with reference to their title deeds, revenue records and survey records as also the plaint and consider whether the property involved in the suit is the property from which eviction is sought. If that be so, appropriate pleadings shall 9 _**RP.737/18 & WP(C).28889/18**_ be placed on record by the official respondents before the Munsiff and the proceedings shall be expedited. Till then, status quo shall be maintained. Further steps pursuant to Exhibits P4 and P7, which are under challenge in the writ petition shall await the orders to be passed as directed above. The review petition and the writ petition are ordered accordingly. Sd/- **ANU SIVARAMAN JUDGE** _vgs_ 10 _**RP.737/18 & WP(C).28889/18**_ ## **APPENDIX OF RP 737/2018** **PETITIONER'S/S EXHIBITS:** **ANNEXURE-A1 CERTIFIED COPY OF THE JUDGMENT DATED 25/7/2018 IN WP(C) NO.41702/2017.** **ANNEXURE-A2 TRUE COPY OF THE LOCATION SKETCH SHOWING THE LIE AND NATURE OF THE LAND.** 11 _**RP.737/18 & WP(C).28889/18**_ ## **APPENDIX OF WP(C) 28889/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RELEVANT EXTRACT OF THE THANDAPAER REGISTER SHOWING THE TITLE OF THE PREDECESSOR INTEREST OF THE PETITIONERS COVERED BY THE SALE DEED BEARING NO.1578/1986 DATED 13/08/1986 OF SATHAMCOTTA SUB REGISTRY WITH TYPED COPY** **EXHIBIT P2 TRUE COPY OF THE FILED MEASUREMENT BOOK IN RESPECT THE RE-SURVEY NUMBER 134 WHEREIN NOW EXHIBIT -P1 LAND IS INCLUDED** - **EXHIBIT P3 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE LIE AND NATURE OF THE EXHIBIT P1 LAND** - **EXHIBIT P4 TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT DATED 11/05/2017 BEARING NO.A412156/2016** - **EXHIBIT P5 TRUE COPY OF THE PLANT IN O.S.236/2017 BEFORE THE HONOURABLE MUNSIFF COURT, SASTHAMKOTTA** **EXHIBIT P6 TRUE COPY OF THE ORDER 24/11/2017 IN L.A.1590/2017 IN THE EXHIBIT -P5 SUIT EXHIBIT P7 TRUE COPY OF THE NOTICE NO.ID-394/2017 DATED 21/11/2017 ISSUED BY THE 6TH RESPONDENT EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 25/07/2018 IN W.P(C) NO.41702/2017 EXHIBIT P9 TRUE COPY OF THE R.P.WITH ANNEXURE, IN W.P(C) NO. NO.41702/2017 FILED BY THE PETITIONERS HEREIN**