W.A.No.57 of 2020 & W.A.No.93 of 2020

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941 ## W.A.No.57 OF 2020 AGAINST THE JUDGMENT IN WP(C) 41396/2016(Y) OF HIGH COURT OF KERALA DATED 18.11.19 ## APPELLANT/PETITIONER: P.J.ANTONY, AGED 46 YEARS, S/O.P.K.JOSEPH, PALLIPARAMBIL HOUSE, MOOLAMKUZHI, KOCHI, PIN-682 002. BY ADV. SRI.P.A.ABDUL JABBAR ## RESPONDENTS/RESPONDENTS: - 1 THE ADDL. TAHSILDAR, FORT KOCHI, KOCHI, PIN-682 001. - 2 THE VILLAGE OFFICER, RAMESWARAM VILLAGE, PALLURUTHY, KOCHI, PIN-682 006. - 3 THE CORPORATION OF COCHIN, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, ERNAKULAM, PIN-682 011. - 4 THE DISTRICT COLLECTOR, ERNAKULAM, COLLECTORATE, KAKKANAD, PIN-682 030. - 5 THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM, PIN-695 009. - 6 ANTONY, S/O.K.V.FRANCIES, AGED 46 YEARS, KURINSINGAL HOUSE, MOOLAMKUZHY, KOCHI-682 002. - 7 KENNETH, S/O.PETER, CC 15/894D WHITE VILLAGE, MOOLAMKUZHY, KOCHI-682 002. - 8 AUGUSTINE RUBAN, S/O.JOCOB, VELIVIL HOUSE, WHITE VILLAGE, MOOLAMKUZHY, KOCHI-682 002. - 9 THOMAS FRANKLIN, S/O.JACOB, VELIVIL HOUSE, WHITE VILLAGE, MOOLAMKUZHY, KOCHI-682 002. W.A.Nos.57 & 93 OF 2020 : 2 : 10 WILSON CYRIL, S/O.CRYIL, MUNTHUNGAL HOUSE, VELIVIL HOUSE, WHITE VILLAGE, MOOLAMKUZHY, KOCHI-682 002. 11 LENIN, S/O.IRANI, NEDIYODATH HOUSE, CC 15/893, WHITE VILLAGE, MOOLAMKUZHY, KOCHI-682 002. R3 BY SRI.RAJESH S.SUBRAHMANIAN, SC, COCHIN CORPORATION SR.GOVT. PLEADER SRI.TEK CHAND FOR R1,R2,R4,R5. SMT. SMITHA GEORGE FOR R6-R11 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.01.2020, ALONG WITH WA.93/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.Nos.57 & 93 OF 2020 : 3 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941 ## W.A.No.93 OF 2020 AGAINST THE JUDGMENT IN WP(C) 9249/2017(E) OF HIGH COURT OF KERALA DATED 18.11.2019 ## APPELLANT: P.J.ANTONY, AGED 46 YEARS, S/O.P.K.JOSEPH, PALLIPARAMBIL HOUSE, MOOLAMKUZHI, KOCHI, PIN-682002. BY ADVS. SRI.P.A.ABDUL JABBAR SRI.G.KRISHNAKUMAR SMT.SAREENA GEORGE,SC,COCHIN CORPORATIO ## RESPONDENTS/PETITIONERS AND RESPONDENTS 1 TO 6: - 1 PETER.D.F, AGED 42 YEARS, S/O.FRANCIS, DEVASWOM PARAMBIL, MOOLAMKUZHI, KOCHI, PIN-682002. - 2 K.J.JOSEPH, AGED 44 YEARS, S/O.JOSEPH, KURISINKAL HOUSE, MOOLAMKUZHI, KOCHI, PIN-682002. - 3 K.R.SIMON, AGED 44 YEARS, S/O.RAPHAEL, SECRETARY- SERVICE GYMNASIUM MOOLAMKUZHI, RESIDING AT KANNETH HOUSE, H.NO.15/2081A, MOOLAMKUZHI, JANATH ROAD, KOCHI-682002. - 4 THE DISTRICT COLLECTOR, ERNAKULAM, COLLECTORATE, KAKKANAD, PIN-682030. - 5 THE SUB COLLECTOR, OFFICE OF THE SUB COLLECTOR, FORT KOCHI-682 001. W.A.Nos.57 & 93 OF 2020 : 4 : - 6 THE ADDL. THAHASILDAR, FORT KOCHI, KOCHI, PIN-682 001. 7 CORPORATION OF KOCHI, PARK AVENUE ROAD, ERNAKULAM, KOCHI-682 013, REP. BY ITS SECRETARY. - 8 ASSISTANT EXECUTIVE ENGINEER, CORPORATION OF KOCHI, ZONAL OFFICE, FORT KOCHI, KOCHI-682 002. - 9 THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM, PIN-695 009. SR.GOVT. PLEADER SRI.TEK CHAND FOR R4 - R6, R8, R9. SMT.SAREENA GEORGE, SC FOR R7 SRI.G.KRISHNAKUMAR, R1 TO R3 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.01.2020, ALONG WITH WA.57/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.Nos.57 & 93 OF 2020 : 5 : ## **JUDGMENT [ W.A.57/2020 & W.A.93/2020 ]** Dated this the 23rd day of January 2020 ## **S.MANIKUMAR, C.J.** These two writ appeals are filed challenging the common judgment dated 18.11.2019 in W.P.(C)Nos.41396/16 and 9249/17 respectively. Appellant/Mr.P.J.Antony is the petitioner in W.P.(C)No.41396/16 and the 7[th] respondent in W.P.(C)No.9249/17. 2. W.P.(C)No.41396 of 2016 is filed by the appellant herein seeking for a direction to restrain the respondents therein from dispossessing the appellant from the puramboke land involved in Ext.P7 order (proceedings of the Land Revenue Commissioner, Thiruvananthapuram) dated 30.11.2016 before the disposal of Exts.P8 and P9 applications for assignment. 3. W.P.(C)No.9249/17 is filed by the respondent 1 to 3 herein (Mr.Peter.D.F., K.J.Joseph, K.R.Simon) for quashing certain observations made by the 9[th] respondent/the Land Revenue Commissioner in Ext.P11 order (proceedings of the Land Revenue Commissioner dated 30.11.2016), to direct the respondents 4 to 8 to remove the encroachment as detailed in Ext.P10 (copy of sketch) and to declare that the appellant/7[th] respondent is not entitled to get the puramboke pathway comprised in Sy.No.195/1 of Rameswaram Village W.A.Nos.57 & 93 OF 2020 : 6 : assigned in his favour. 4. Learned Single Judge, disposed of both the writ petitions vide common judgment dated 18.11.2019, relevant portion of which reads as under: “On a consideration of the facts and circumstances of the case and the submissions made across the Bar, I find that the petitioner has not impugned Ext.P7 order to the extent it finds that the petitioner had encroached into the puramboke land to an extent of 0.61 Ares. The limited relief prayed for in W.P. (C)No.41396/2016 is for the consideration of the petitioners' application (Exts.P8 and P9) for assignment of the said encroached land, and to keep in abeyance the dispossession steps against the petitioner pursuant to Ext.P7 order in the meanwhile. I find, however, that the applications for assignment pertained to puramboke land which is seen described as a water body (thodu), albeit dried up, in the order of the Revenue Divisional Officer. If that be the case, then by virtue of the judgment of the Hon'ble Supreme Court in Sarvepalli Ramaiah (Dead) as per Legal representatives and Others v. District Collector, Chittoor District and Others [(2019) 4 SCC 500], the petitioner in W.P.(C)No.41396/2016 cannot aspire for an assignment of the said land in his favour. The decision of the Hon'ble Supreme Court referred above clearly indicates that water bodies, including those that are dried up, cannot be the subject matter of an assignment by the State. I, therefore, find no reason to issue any further direction to the respondents in the said writ petition to consider the application for assignment preferred by the petitioner since the said W.A.Nos.57 & 93 OF 2020 : 7 : assignment, at any rate, cannot be granted in favour of the petitioner. Resultantly, I dispose both the writ petitions by declaring that the petitioner in W.P.(C)No.41396/2016 is not entitled for assignment of the extent of 0.89 Ares (2.199 cents) of land in Sy.No.1951 of Rameswaram Village in Kochi Taluk as determined in Ext.P7 order of the Land Revenue Commissioner, and the official respondents (respondents 1, 2 and 4 in W.P. (C)No.41396/2016 shall take immediate steps to recover the said land from the petitioner. The steps in this regard shall be taken within an outer time limit of two months from the date of receipt of a copy of this judgment.” 5. According to learned counsel for the appellant, the findings in the impugned judgment that the disputed land is seen as described as a water body (thodu) albeit dried up, in the order of the Revenue Divisional Officer is factually incorrect. In the order of the Revenue Divisional Officer, which is produced as Ext.P7 in the connected Writ Petition (C) No.9249/17, there is absolutely no such finding. Moreover, in none of the records, the land in question is identified as a 'puramboke thodu'. Therefore, according to him, the said issue is a question of fact to be decided by the authorities concerned. It is also submitted that the factual situation of the case reported in (2019) 4 SCC 500 (Sarvepally Ramaiah (died) and others v. District Collector) was entirely different from the case in hand. For the above said reasons, it is submitted that the learned Single Judge went wrong in relying on the dictum laid down by the Hon'ble Supreme Court in W.A.Nos.57 & 93 OF 2020 : 8 : the abovesaid case to refuse the prayers made in W.P.(C)No.41396/2016 and to allow the W.P.(C)No.9249/2017. 6. We have heard learned counsel appearing for the parties and perused the materials available on record. 7. It is evident from the proceedings of the Land Revenue Commissioner dated 30.11.2016 (Ext.P11 in W.P.(C)9049/17) that the subject property has been described as 'Puramboku Edavazhi' having an extent of 0.61 Ares (1.50 cents) under Section 16(1) of the Kerala Land Conservancy Act, 1957. In the proceedings of the Sub Collector i.e., Ext.P7 in W.P.(C)No.9049/17, it is observed that the disputed land is seen as 'Thodu' and building is constructed encroaching the said land. Perusal of the proceedings further shows that the Deputy Tahsildar (Kochi Taluk) has submitted that the land is recorded as 'vazhi' in village records and the same is a low lying area which forms the nature and usage of thodu according to the changes of weather condition. Finding by the writ court is on basis of the proceedings of the RDO, whereas the Land Revenue Commissioner is otherwise. Land Revenue Commissioner is empowered to record a finding of fact. 8. In the light of the above, we deem it fit to set aside that portion of the common order, declining consideration of the application for assignment. As per the statutory provisions, appellant can seek for assignment. In view of the above, dismissal of the writ petition for assignment is set aside. W.A.Nos.57 & 93 OF 2020 : 9 : 9. Respondents 4 (the District Collector, Ernakulam) and 5 (the Sub Collector, Fort Kochi) are directed to consider and dispose of the applications for assignment as early as possible, at any rate, within a period of two months from the date of receipt of a copy of the judgment. 10. Learned counsel appearing for the writ petitioners in W.P. (C)No.9249/17 and the learned counsel appearing for respondents 6 to 11 in W.A.57 of 2020 sought for liberty to put forth tenable objections before the District Collector before whom application for assignment is stated to be pending consideration. Accordingly, respondents are permitted to make the objections before the District Collector/Assigning Authority with whom the application for assignment is pending. All pending interlocutory applications shall stand closed. sd/- **S.MANIKUMAR CHIEF JUSTICE** sd/- **SHAJI P. CHALY JUDGE** jes