W.P.(C) Nos. 6941/2020; 12202/2020(A); 12175/2020(V); 12149/2020(P); 15590/2020(W) – Vinod Shelly; George K.L.S.; Josey V.D S/O Devassy; Tessy – v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 26TH DAY OF NOVEMBER 2020 / 5TH AGRAHAYANA, 1942** ## **W.P.(C)No.6941 OF 2020(P)** ## **PETITIONER/S:** **VINOO SHELLY AGED 50 YEARS S/O. P.C.SHELLY, UTHEN VEETTIL HOUSE, GOTHURUTHY P.O., NORTH PARAVUR, PIN-683 516.** **BY ADVS. SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SRI.SURESH SUKUMAR SRI.V.S.SHIRAZ BAVA SHRI.CHACKO MATHEWS K.** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM, PIN-695 001.** - **2 THE DISTRICT COLLECTOR COLLECTORATE, KAKKANADU P.O., ERNAKULAM, PIN-682 030.** - **3 THE EXECUTIVE ENGINEER PWD ROADS DIVISION, NEAR NGO QUARTERS, KAKKANADU P.O., ERNAKULAM, IN-682 030.** - **4 THE TAHSILDAR NORTH PARAVUR, PARAVUR TALUK OFFICE, NORTH PARAVUR, ERNAKULAM, PIN-683 513.** - **5 THE VILLAGE OFFICER CHENDAMANGALAM VILLAGE OFFICE, CHENDAMANGALAM, NORTH PARAVUR, ERNAKULAM, PIN-683 513.** - **6 AJITH (FATHERS NAME NOT KNOWN TO THE PETITIONER) AGE NOT KNOWN, ASSISTANT EXECUTIVE ENGINEER, PWD ROADS DIVISION, PWD OFFICE (ROADS DIVISION), NORTH PARAVUR, PIN-685 513 ADDRESS NOT KNOWN TO THE PETITIONER ( IN HIS PERSONAL CAPACITY).** W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 2 **7 SAINUDDIN** **(FATHERS NAME NOT KNOWN TO THE PETITIONER) AGE NOT KNOWN, ASSISTANT EXECUTIVE ENGINEER, PWD ROADS DIVISION, PWD OFFICE (ROADS DIVISION), NORTH PARAVUR, PIN-685 513 ADDRESS NOT KNOWN TO THE PETITIONER (IN HIS PERSONAL CAPACITY).** **8 ADDL.R8. THE TALUK SURVEYOR NORTH PARAVOOR-683513** **THE ADDITIONAL RESPONDENT NO.8 IS SUO MOTU IMPLEADED AS PER THE ORDER DATED 04.11.2020 IN WP(C)6941/2020.** **R1-5, R8 BY SRI M.H.HANIL KUMAR, SPL GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.11.2020, ALONG WITH WP(C).NOS.12202/2020(A), 12175/ 2020(V), 12149/2020(P) & 15590/2020(W), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 26TH DAY OF NOVEMBER 2020 / 5TH AGRAHAYANA, 1942** ## **W.P.(C)No.12202 OF 2020(A)** ## **PETITIONER/S:** **GEORGE K. L. S/O. LOUIES, KATTUMPURATH HOUSE, GOTHURUTHY P. O., NORTH PARAVUR, PIN - 683 513.** **BY ADVS. SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SRI.P.MURALEEDHARAN (THURAVOOR) SMT.T.A.LUXY SRI.V.S.SHIRAZ BAVA** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM, PIN - 695 001.** - **2 THE DISTRICT COLLECTOR COLLECTORATE, KAKKANADU P. O., ERNAKULAM, PIN - 682 030.** **3 THE EXECUTIVE ENGINEER PWD ROADS DIVISION, NEAR NGO QUARTERS, KAKKANADU P. O., ERNAKULAM. 4 THE TAHSILDAR NORTH PARVUR, PARAVUR, TALUK OFFICE, NORTH PARAVUR, ERNAKULAM, PIN - 683513 5 THE VILLAGE OFFICER CHENDAMANGALAM VILLAGE OFFICE, CHENDAMANGALAM, NORTH PARAVUR, ERNAKULAM, PIN - 683 512. 6 ASSISTANT EXECUTIVE ENGINEER PWD ROADS DIVISION, PWD OFFICE (ROADS DIVISION) NORTH PARAVUR, PIN - 683 513.** W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 4 - **7 ASSISTANT ENGINEER PWD ROADS DIVISION, PWD OFFICE (ROADS DIVISION) NORTH PARAVUR, PIN - 683 513.** - **8 ADDL R8, THE TALUK SURVEYOR, NORTH PARAVOOR-683 513 ADDL R8 SUO MOTU IMPLEADED AS PER ORDER DATED 0411-2020 IN WP(C)12202/20 R1-R8 BY SRI.M.H.HANIL KUMAR, SPL.GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.11.2020, ALONG WITH WP(C).NOS.6941/2020(A), 12175/ 2020(V), 12149/2020(P) & 15590/2020(W), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 5 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 26TH DAY OF NOVEMBER 2020 / 5TH AGRAHAYANA, 1942** ## **W.P.(C)No.12175 OF 2020(V)** ## **PETITIONER/S:** **JOSEY V.D S/O DEVASSY, VENGANATHU HOUSE, GOTHURUTHY P.O, NORTH PARAVUR PIN 683513** **BY ADVS. SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY,**| ||**PUBLIC WORKS DEPARTMENT**| ||**THIRUVANANTHAPURAM, PIN-695121**| |**2**|**THE DISTRICT COLLECTOR,**| ||**COLLECTORATE,KAKKANADU P.O,**| ||**ERNAKULAM PIN 682030**| |**3**|**THE EXECUTIVE ENGINEER,**| ||**PWD ROADS DIVISION,**| ||**NEAR NGO QUARTERS,**| ||**KAKKANADU P.O, ERNAKULAM,PIN 682030**| |**4**|**THE TAHSILDAR**| ||**NORTH PARAVUR,**| ||**PARAVUR TALUK OFFICE, ERNAKULAM, PIN 683513**| |**5**|**VILLAGE OFFICER,**| ||**CHENDAMANGALAM VILLAGE OFFICE,**| ||**CHENDAMANGALAM, NORTH PARAVUR,ERNAKULAM**| ||**PIN 683512**| |**6**|**THE ASSISTANT EXECUTIVE ENGINEER,**| ||**PWD ROADS DIVISION,**| W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 6 **PWD OFFICE(ROADS DIVISION), NORTH PARAVUR PIN 683542** - **7 ASSISTANT ENGINEER PWD ROADS DIVISION, PWD OFFICE(ROADS DIVISION) NORTH PARAVUR,PIN 683542** - **8 THE TALUK SURVEYOR, NORTH PARAVOOR, 683513 ADDL.R8 IMPLEADED SUOMOTU AS PER ORDER DATED 04/11/2020 IN WP(C)12175/2020** **R1-R8 BY SRI.M.H.HANIL KUMAR, SPL.GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.11.2020, ALONG WITH WP(C).NOS.6941/2020, 12202/2020(A), 12149/2020(P) & 15590/2020(W), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 7 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 26TH DAY OF NOVEMBER 2020 / 5TH AGRAHAYANA, 1942** **W.P.(C)No.12149 OF 2020(P)** ## **PETITIONER/S:** **REETHA @ JEENA TOMY W/O.TOMY @THOMAS, THAIPPARAMBIL HOUSE, GOTHURUTHY P.O., VADAKKUMPURAM MURI, CHENDAMANGALAM VILLAGE, NORTH PARAVUR, PIN-683513.** **BY ADVS. SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SRI.SURESH SUKUMAR SRI.V.S.SHIRAZ BAVA SRI.ANZIL SALIM SHRI.CHACKO MATHEWS K.** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY , PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM, PIN-695001. 2 THE DISTRICT COLLECTOR COLLECTORATE, KAKKANADU P.O., ERNAKULAM, PIN-682030 3 THE EXECUTIVE ENGINEER PWD ROADS DIVISION, NEAR NGO QUARTERS, KAKKANADU P.O., ERNAKULAM, PIN-682030. 4 THE TAHSILDAR NORTH PARAVUR, PARAVUR TALUK OFFICE, NORTH PARAVUR, ERNAKULAM, PIN-683512. 5 THE VILLAGE OFFICER CHENDAMANGALAM VILLAGE OFFICE, CHENDAMANGALAM, NORTH PARAVUR, ERNAKULAM-683513.** W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 8 - **6 ASSISTANT EXECUTIVE ENGINEER PWD ROADS DIVISION, PWD OFFICE (ROADS DIVISION), NORTH PARAVUR, PIN-683513.** - **7 ASSISTANT ENGINEER PWD ROADS DIVISION, PWD OFFICE (ROADS DIVISION), NORTH PARAVUR-683513.** - **8 ADDL.R8. THE TALUK SURVEYAR NORTH PARAVOOR, -683513.** **THE ADDITIONAL R8 IS SUO MOTU IMPLEADED AS PER THE ORDER DATED04.11.2020 IN WP(C)** **R1-R8 BY SRI.M.H.HANIL KUMAR, SPL.GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.11.2020, ALONG WITH WP(C).NOS.6941/2020, 12202/2020(A), 12175/ 2020(V) & 15590/2020(W), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 9 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 26TH DAY OF NOVEMBER 2020 / 5TH AGRAHAYANA, 1942** ## **W.P.(C)No.15590 OF 2020(W)** ## **PETITIONER/S:** **TESSY AGED 72 YEARS D/O THOMMAN, MANAKIL HOUSE, GOTHURUTH, CHENNAMANGALAM, PARAVOOR TALUK, PIN-683 513.** **BY ADVS. SRI.FRANKLIN ARACKAL SRI.P.D.JAYAN MON SRI.M.B.SOORI** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY, PUBLIC WORKS**| ||**DEPARTMENT, THIRUVANANTHAPURAM-695 001.**| |**2**|**THE DISTRICT COLLECTOR,**| ||**COLLECTORATE, KAKKANADU P.O.ERNAKULAM, PIN-682**| ||**030**| |**3**|**THE EXECUTIVE ENGINEER,**| ||**PWD ROADS DIVISION, NEAR NGO QUARTERS, KAKKANADU**| ||**P.O.ERNAKULAM, PIN-682 030**| |**4**|**THE TAHSILDAR,**| ||**NORTH PARAVUR, PARAVUR TALUK OFFICE, NORTH**| ||**PARAVUR, ERNAKULAM-683 513.**| |**5**|**THE VILLAGE OFFICER,**| ||**CHENDAMANGALAM VILLAGE OFFICE, CHENDAMANGALAM,**| ||**NORTH PARAVUR, ERNAKULAM-683 512.**| |**6**|**ASSISTANT EXECUTIVE ENGINEER,**| ||**PWD ROADS DIVISION, PWD OFFICE(ROADS DIVISION),**| ||**NORTH PARAVUR-683 513.**| W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 10 **7 ASSISTANT ENGINEER, PWD ROADS DIVISION, PWD OFFICE (ROADS DIVISION), NORTH PARAVUR-683 513. 8 ADDL.R8. THE TALUK SURVEYOR, NORTH PARAVOOR, 683 513. ADDL.R8 IS SUO MOTU IMPLEADED AS PER ORDER DATED 4/11/2020 IN WP(C)NO.15590/2020. R1-R8 BY SRI.M.H.HANIL KUMAR, SPL.GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.11.2020, ALONG WITH WP(C).NOS.6941/2020, 12202/2020(A), 12175/ 2020(V) & 12149/2020(P), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 11 ## **JUDGMENT** Since common issue is raised, these writ petitions are heard together and are being disposed of by this common judgment. 2. W.P.(C)No.6941 of 2020:- The petitioner, who is stated to be the absolute owner in possession and enjoyment of property having an extent of 4.45 ares in Sy.No.122/3-2 of Chendamangalam Village, by virtue of Sale Deed No.821/1/2013 of the Sub Registrar Office, Chendamangalam; Ext.P2 possession certificate No.429/2020 dated 25.02.2020 issued by the 5[th] respondent Village Officer; and Ext.P3 tax receipt dated 10.04.2019 issued by the said respondent, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P7 notice dated 18.02.2020 issued by the 6[th] respondent Assistant Executive Engineer, PWD Roads Division, North Paravur, under sub-section (2) of Section 11 of the Kerala Land Conservancy Act, 1957, which is one issued in the name of the petitioner’s father, for removing the encroachment on the road puramboke of Gothuruth - Vadukumpuram PWD Road, within a period of seven days from the date of receipt of that notice, failing which the encroachment shall be removed, if found necessary by using force. By Ext.P7 notice, the petitioner’s father was required to appear before the 6[th] respondent and submit objections, if any, to W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 12 the notice within three days from the date of receipt of that notice. The further relief sought for in this writ petition is for a declaration that the proceedings pursuant to Ext.P7 notice is not binding upon the petitioner. 2.1. A statement has been filed by the 3[rd] respondent opposing the reliefs sought for in this writ petition. 2.2. On 06.03.2020, when this writ petition came up for admission, notice by special messenger was issued to respondents 6 and 7. By the order dated 06.03.2020, this Court stayed all further proceedings pursuant to Ext.P7 notice and the said order is still in force. 3. W.P.(C)No.12202 of 2020:- The petitioner, who is stated to be the absolute owner in possession and enjoyment of property having an extent of 13.35 ares in Sy.No.163/2 and Re.Sy.No.60/15 of Chendamangalam Village, Paravur Taluk, by virtue of Ext.P1 Partition Deed No.3503/1965 of Sub Registrar Office, Paravoor dated 28.12.1965; Ext.P2 registered Will dated 15.09.1969; and Ext.P3 tax receipt dated 25.02.2020 issued by the 5th respondent Village Officer, has filed this writ petition seeking a writ of certiorari to quash Ext.P8 notice dated 16.06.2020 issued by the 6[th] respondent Assistant Executive Engineer, PWD Roads Division, W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 13 North Paravur, under sub-section (2) of Section 11 of the Kerala Land Conservancy Act, for removing the encroachment on the road puramboke of Gothuruth - Vadukumpuram PWD Road, within a period of seven days from the date of receipt of that notice, failing which the encroachment shall be removed, if found necessary by using force. By Ext.P8 notice, the petitioner was required to appear before the 6[th] respondent and submit objections, if any, to the notice within three days from the date of receipt of that notice. The further relief sought for in this writ petition is for a declaration that the proceedings pursuant to Ext.P8 notice is not binding upon the petitioner. 3.1. On 22.06.2020, when this writ petition came up for admission, this Court admitted the matter on file. The learned Senior Government Pleader took notice for respondents 1 to 7. By the order dated 22.06.2020, this Court stayed all further proceedings pursuant to Ext.P8 notice and the said order is still in force. 3.2. A statement has been filed by the 6[th] respondent opposing the reliefs sought for in this writ petition. On 21.10.2020, along with a memo filed by the learned Government Pleader, a copy of Government order, i.e., G.O.(P)No.590/85/RD dated 06.06.1985 W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 14 is placed on record, whereby all Assistant Executive Engineers of the Public Works Department (Building and Road Wing) are authorised to exercise the powers conferred on a Collector under Section 11 of the Kerala Land Conservancy Act, within their respective jurisdiction. 4. W.P.(C)No.12175 of 2020:- The petitioner, who is stated to be the absolute owner in possession and enjoyment of property having an extent of 3.92 ares in Sy.No.164/3 and Re.Sy.No.59/19 of Chendamangalam Village, by virtue of Ext.P1 Sale Deed No.1526/1988 of Sub Registrar Office, Chendamangalam dated 22.12.1988 (after surrendering a portion of the land for the formation of Gothuruth - Vadukumpuram road); Ext.P2 possession certificate No.1789/18(A) dated 16.11.2018 issued by the 5[th] respondent Village Officer; and Ext.P3 tax receipt dated 01.06.2020 issued by the said respondent, has filed this writ petition seeking a writ of certiorari to quash Ext.P8 notice dated 16.06.2020 issued by the 6[th] respondent Assistant Executive Engineer, PWD Roads Division, North Paravur, under sub-section (2) of Section 11 of the Kerala Land Conservancy Act, for removing the encroachment on the road puramboke of Gothuruth - Vadukumpuram PWD Road, within a period of seven days from the date of receipt of that W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 **==> picture [13 x 8] intentionally omitted <==** notice, failing which the encroachment shall be removed, if found necessary by using force. By Ext.P8 notice, the petitioner was required to appear before the 6[th] respondent and submit objections, if any, to the notice within three days from the date of receipt of that notice. The further relief sought for in this writ petition is for a declaration that the proceedings pursuant to Ext.P8 notice is not binding upon the petitioner. 4.1. On 22.06.2020, when this writ petition came up for admission, this Court admitted the matter on file. The learned Senior Government Pleader took notice for respondents 1 to 7. By the order dated 22.06.2020, this Court stayed all further proceedings pursuant to Ext.P8 notice and the said order is still in force. 4.2. A statement has been filed by the 6[th] respondent opposing the reliefs sought for in this writ petition. 5. W.P.(C)No.12149 of 2020:- The petitioner, who is stated to be the absolute owner in possession and enjoyment of property having an extent of 1.83 ares in Sy. No.163/1 and Re.Sy.No.60/18 of Chendamangalam Village, Paravur Taluk, by virtue of Ext.P1 Sale Deed No.326/1999 of Sub Registrar Office, Chendamangalam, dated 17.02.1999; Ext.P2 encumbrance certificate No.949 dated nil W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 **==> picture [13 x 8] intentionally omitted <==** issued by the 5[th] respondent Village Officer; and Ext.P3 tax receipt dated 25.05.2020 issued by the said respondent, has filed this writ petition seeking a writ of certiorari to quash Ext.P8 notice dated 16.06.2020 issued by the 6[th] respondent Assistant Executive Engineer, PWD Roads Division, North Paravur, under sub-section (2) of Section 11 of the Kerala Land Conservancy Act, for removing the encroachment on the road puramboke of Gothuruth - Vadukumpuram PWD Road, within a period of seven days from the date of receipt of that notice, failing which the encroachment shall be removed, if found necessary by using force. By Ext.P8 notice, the petitioner was required to appear before the 6[th] respondent and submit objections, if any, to the notice within three days from the date of receipt of that notice. The further relief sought for in this writ petition is for a declaration that the proceedings pursuant to Ext.P8 notice is not binding upon the petitioner. 5.1. On 19.06.2020, when this writ petition came up for admission, this Court admitted the matter on file. The learned Senior Government Pleader took notice for respondents 1 to 7. By the order dated 22.06.2020, this Court stayed all further proceedings pursuant to Ext.P8 notice and the said order is still in force. W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 **==> picture [13 x 8] intentionally omitted <==** 5.2. A statement has been filed by the 6[th] respondent opposing the reliefs sought for in this writ petition. 6. W.P.(C)No.15590 of 2020:- The petitioner is stated to be the co-owner of property having an extent of 7 cents, out of 32.75 cents in Sy. No.98/1 and 98/2 of Chendamangalam Village, covered by Ext.P3 release deed No.1100/1970 of Sub Registrar Office, Paravur dated 30.12.1969, in which there is a cupola constructed by the petitioner's father, late Thomman and his brother Paily, which is entrusted to St. Sebastain’s Church, Gothuruth. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 notice dated 24.02.2020 6[th] respondent Assistant Executive Engineer, PWD Roads Division, North Paravur, under sub-section (2) of Section 11 of the Kerala Land Conservancy Act, for removing the encroachment on the road puramboke of Gothuruth - Vadukumpuram PWD Road, within a period of seven days from the date of receipt of that notice, failing which the encroachment shall be removed, if found necessary by using force. By Ext.P5 notice, the church authorities are required to appear before the 6[th] respondent and submit objections, if any, to the notice within three days from the date of receipt of that notice. The further relief W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 **==> picture [13 x 8] intentionally omitted <==** sought for in this writ petition is for a declaration that the proceedings pursuant to Ext.P5 notice is not binding upon the petitioner. 6.1. On 03.08.2020, when this writ petition came up for admission, this Court admitted the matter on file. The learned Senior Government Pleader took notice for respondents 1 to 7. By the order dated 03.08.2020, this Court stayed all further proceedings pursuant to Ext.P5 notice and the said order is still in force. 6.2. A statement has been filed by the 6th respondent opposing the reliefs sought for in this writ petition. 7. On 04.11.2020, when these writ petitions came up for consideration, the Taluk Surveyor, North Paravoor was suo motu impleaded as the additional 8th respondent. The learned Special Government Pleader took notice for the additional 8th respondent and sought time to get instructions as to whether the survey conducted by the said respondent is with notice to the petitioners in these writ petitions. 8. By the order dated 17.11.2020, the learned Special Government Pleader was directed to make available for the perusal of this Court the files relating to the survey conducted by the W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 19 additional 8th respondent Taluk Surveyor. 9. Today, when these matters were taken up for consideration, the learned Special Government Pleader has made available for the perusal of this Court the files maintained in the Taluk Office, North Paravoor, regarding encroachment on Gothuruth - Vadukumpuram Link Road. The plan prepared by the additional 8th respondent Taluk Surveyor showing the encroachments on the said PWD road at various places in Sy.Nos.122/16pt and 107/19pt is available at page Nos.133 to 143 of that file. 10. Heard the learned counsel for the petitioner in the respective writ petitions and also the learned Special Government Pleader for respondents 1 to 8. 11. The issue that arises for consideration in these writ petitions is as to whether any interference under Article 226 of the Constitution of India is warranted on the notices issued under subsection (2) of Section 11 of the Kerala Land Conservancy Act, for removing the encroachment on the road puramboke of Gothuruth - Vadukumpuram PWD Road, which are impugned in the respective writ petitions. 12. Section 11 of the Kerala Land Conservancy Act deals with liability of unauthorised occupant to summary eviction, W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 20 forfeiture of crops, etc. As per sub-section (1) of Section 11 of the Act, any person unauthorisedly occupying any land for which he is liable to pay a fine under Section 7 and an assessment or prohibitory assessment under Section 8 may be summarily evicted by the Collector, and any crop or other product raised on the land shall be liable to forfeiture and any building or structure erected or anything deposited thereon shall also, if not removed by him after such written notice as the Collector may deem reasonable, be liable to forfeiture. Forfeiture under this section shall be adjudged by the Collector and any property so forfeited shall be disposed as the Collector may direct. 13. Sub-section (2) of Section 11 of the Act deals with mode of eviction. The mode of eviction provided in sub-section (2) is by serving a notice on a person reputed to be in occupation or his agent requiring him within such time as the Collector may deem reasonable after receipt of the said notice to vacate the land, and if such notice is not obeyed, by removing or deputing a subordinate to remove any person who may refuse to vacate the same, and, if the officer removing any such person shall be resisted or obstructed by any person, the Collector shall hold a summary enquiry into the facts of the case, and if satisfied that the W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 21 resistance or obstruction still continues, may issue a warrant for the arrest of the said person and on his appearance may send him with a warrant in the form of the Schedule for imprisonment in the Civil Jail of the district for such period not exceeding 30 days as may be necessary to prevent the continuance of such obstruction or resistance. As per the proviso to sub-section (2), no person so committed or imprisoned under this section shall be liable to be prosecuted under Section 183,186 and 188 of the Indian Penal Code in respect of the same facts. 14. Sub-section (3) of Section 11 of the Act, which starts with a non-obstante clause provides that, notwithstanding anything contained in sub-section (2) where the Collector is of opinion in any case falling under sub-section (1) that it is expedient in the public interest to take urgent action without following the procedure laid - down in sub section (2) he may, after recording his reasons for so doing, issue a notice to the person in occupation calling upon him to vacate the land within such period as may be specified in the notice, and if the land is not vacated within the said period, any officer authorised by the Collector may enter upon the land and to take possession of the same, if necessary by using such force as the circumstances may justify. W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 **==> picture [13 x 8] intentionally omitted <==** 15. Section 12 of the Act deals with prior notice to occupant, etc. As per Section 12, the Collector shall, before passing an order under this Act, give notice to the occupant or other person likely to be affected by the order and record any statement which such occupant or person may make and any evidence which he may adduce within a reasonable time; and all orders passed by the Collector under this Act shall be in writing and under his hand. As per the proviso to Section 12, no such notice shall be necessary (i) when the Collector takes action under sub-section (3) of Section 11; or (ii) in the case of any person unauthorisedly occupying any land which is the property of Government, if, within a period of two years prior to the date of such occupation, he had been evicted from such land under Section 11 or had vacated such land voluntarily under the receipt of a notice under this Section or Section 11. The Collector may require any subordinate officer not below the rank of a Deputy Tahsildar or any other officer authorised by the Government in this behalf to hold the enquiry as prescribed in the preceding Paragraph 1 of Section 12 and submit the record to him; and on such record the Collector may pass orders. For the purpose of Section 199 of the Indian Penal Code, 1860 the proceedings taken by the Collector under Section 12 shall be W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 23 deemed to be judicial proceedings. 16. Admittedly, the notices issued by the 6[th] respondent Assistant Executive Engineer, which are under challenge in the respective writ petitions are issued under sub-section (2) of Section 11 of the Kerala Land Conservancy Act and not under sub-section (3) of Section 11 of the said Act. 17. The stand taken in the statement filed by the 6[th] respondent is that, based on a complaint filed by one Shiju P.D. of Gothuruth, the 2[nd] respondent District Collector vide letter dated 14.02.2020 directed the 4[th] respondent Tahsildar and the 6[th] respondent Assistant Executive Engineer to conduct enquiry and take action for removing the encroachment on the road puramboke of Gothuruth - Vadukumpuram PWD Road. On the direction of the 4[th] respondent, the additional 8[th] respondent Taluk Surveyor conducted detailed survey and submitted survey sketch demarcating the boundary of PWD land, vide letter dated 04.06.2020. Based on that sketch, the 6[th] respondent issued notice under sub-section (1) of Section 11 of the Act to the encroachers, including the petitioner in the respective writ petitions. 18. In **C.S.S. Motor Service v. Madras State [AIR 1953 Madras 279]** a Division Bench of the Madras High Court held that W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 **==> picture [13 x 8] intentionally omitted <==** all public streets and roads vest in the State, but that the State holds them as trustee on behalf of the public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The State as trustees on behalf of the public is entitled to impose all such limitations on the character and extent of the user as may be requisite for protecting the rights of the public generally. Paragraph 24 of the said decision reads thus; “24. The true position, then is, that all public streets and roads vest in the State, but that the State holds them as trustee on behalf of the public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The State as trustees on behalf of the public is entitled to impose all such limitations on the character and extent of the user as may be requisite for protecting the rights of the public generally. Thus the nature of the road may be such that it may not be suitable for heavy traffic and it will be within the competence of the Legislature to limit the use of the streets to vehicles which do not exceed specified size or weight. Such regulations have been held to be valid as within the police power of the State in America. Vide **Morris v. Duby [(1927) 71 Law Ed. 966]** , **Sproles v.** W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 25 **Binford [76 L.Ed. 1167 (1932)]** , and **South Carolina State v. Barnwell Bros [82 L.Ed. 734 (1938)]** . For the same reason the State might even prohibit the running of transport buses and lorries on particular streets or roads, if such running would interfere with the rights of pedestrians to pass and re-pass, as it might if the street is narrow or congested, but subject to such limitations the right of a citizen to carry on business in transport vehicles on public pathways cannot be denied to him on the ground that the State owns the highways.” 19. In **Saghir Ahmad v. State of U.P. [AIR 1954 SC 728]** a Constitution Bench of the Apex Court agreed with the statement of law made by the Division Bench of the Madras High Court in Para.24 of the decision in **C.S.S. Motor Service** . 20. The State, which holds all public streets and roads as trustee on behalf of the public, has got a duty to maintain such streets and roads without any encroachments, in order to protect the right of the general public, including those with disabilities and reduced mobility. 21. In the notices issued by the 6[th] respondent Assistant Executive Engineer, under sub-section (2) of Section 11 of the Kerala Land Conservancy Act, for removing the encroachment on the road puramboke of Gothuruth - Vadukumpuram PWD Road, which are impugned in the respective writ petitions, the 6[th] W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 26 respondent has not shown the extent of the alleged encroachment. In the statement filed by the 6[th] respondent, it is stated that, those notices are issued based on the survey sketch prepared by the additional 8[th] respondent Taluk Surveyor, demarcating the boundary of PWD land. Therefore, it is for the 2[nd] respondent District Collector or the 6[th] respondent Assistant Executive Engineer to issue fresh notice to the petitioner in the respective writ petitions (and also the Vicar of St.Sebastain’s Chruch - W.P.(C)No.15590 of 2020), under Section 11 of the Kerala Land Conservancy Act, showing the extent of the alleged encroachment of PWD land, with reference to the survey sketch prepared by the additional 8[th] respondent Taluk Surveyor, and proceed further in accordance with the law. The notices issued by the 6[th] respondent Assistant Executive Engineer under Section 11 of the Kerala Land Conservancy Act, which are impugned in the respective writ petitions, are set aside for the aforesaid reason, giving liberty to the 2[nd] respondent District Collector/the 6[th] respondent Assistant Executive Engineer to issue fresh notice to the petitioner in the respective writ petitions, under Section 11 of the Kerala Land Conservancy Act, and proceed further in accordance with the law, and finalise those proceedings, as expeditiously as possible, at any W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 **==> picture [13 x 8] intentionally omitted <==** rate, within a period of two months from the date of receipt of a certified copy of this judgment. The writ petitions are disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** MIN W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 28 ## **APPENDIX OF WP(C) 6941/2020** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.821/1/2013 OF S.R.O CHENNAMANGALAM DATED 12.4.2013. EXHIBIT P2 TRUE COPY OF THE POSSESSION CERTIFICATE NO.429/2020 DATED 25.2.2020 IN RESPECT OF 40.45 ARES OF PROPERTY. EXHIBIT P3 TRUE COPY OF THE TAX RECEIPT DATED 10.4.2019. EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 22.2.2020. EXHIBIT P4(A) TRUE COPY OF THE REPLY DATED 27.2.2020. EXHIBIT P5 TRUE COPY OF THE RTI APPLICATION. EXHIBIT P5(A) TRUE COPY OF THE REPLY DATED 24.2.2020. EXHIBIT P6 TRUE PHOTOGRAPHS OF THE DEMOLITION CARRIED OUT BY THE 6TH AND 7TH RESPONDENT. EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 20.2.2020. EXHIBIT P7(A) TRUE COPY OF THE REPLY DATED 3.3.2020. EXHIBIT P8 TRUE PHOTOGRAPH OF THE PROPERTY COVERED BY EXHIBIT P1.** W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 29 ## **APPENDIX OF WP(C) 12202/2020** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PARTITION DEED NO.3503/1965 OF S.R.O PARAVOOR DATED 28.12.1965.** **EXHIBIT P2 TRUE COPY OF THE REGISTERED WILL DATED 15.09.1969.** - **EXHIBIT P3 TRUE COPY OF THE TAX RECEIPT DATED 25.02.2020.** **EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 22.02.2020.** - **EXHIBIT P4 (a) THE TRUE COPY THE REPLY DATED 27.02.2020. EXHIBIT P5 THE TRUE COPY OF THE RTI APPLICATION DATED 02.03.2020.** - **EXHIBIT P5 (a) THE TRUE COPY OF THE REPLY DATED 02.03.2020.** - **EXHIBIT P6 TRUE PHOTOGRAPHS OF THE EARLIER DEMOLITION CARRIED OUT BY THE 6TH AND 7TH RESPONDENTS.** - **EXHIBIT P7 TRUE COPY OF THE REPLY TO THE RTI APPLICATION RECEIVED FROM THE 5TH RESPONDENT DATED 10.03.2020.** **EXHIBIT P8 TRUE COPY OF THE NOTICE DATED 16.06.2020. EXHIBIT P9 TRUE COPY OF THE PHOTOGRAPHS. EXHIBIT P10 TRUE COPY OF THE INTERIM ORDER IN WP(C) 6941/2020 DATED 06.03.2020.** W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 30 ## **APPENDIX OF WP(C) 12175/2020** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.1526/1988 OF SRO, CHENDAMANGALAM DATED 22/12/1988.** - **EXHIBIT P2 RUE COPY OF THE POSSESSION CERTIFICATE NO.1789/18(A) DATED 16/11/2018 IN RESPECT OF 3.92 ARES OF PROPERTY ISSUED BY THE 5TH RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE TAX RECEIPT DATED 01/06/2020.** - **EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 22/02/2020 FILED BY ONE MR. BELLY.** - **EXHIBIT P4(A) TRUE COPY OF THE REPLY TO EXT.P4. EXHIBIT P5 TRUE COPY OF THE RTI APPLICATION SUBMITTED BEFORE THE 6TH RESPONDENT, ASSISTANT EXECUTIVE ENGINEER.** - **EXHIBIT P5(A) TRUE COPY OF THE REPLY DATED 02/03/2020.** - **EXHIBIT P6 TRUE COPY OF THE PHOTOGRAPHS OF THE EARLIER DEMOLITION CARRIED OUT BY THE 6TH AND 7TH RESPONDENTS.** - **EXHIBIT P7 TRUE COPY OF THE REPLY TO THE RTI APPLICATION RECEIVED FROM THE 5TH RESPONDENT DATED 10/03/2020.** - **EXHIBIT P8 TRUE COPY OF THE NOTICE DATED 16/06/2020.** **EXHIBIT P9 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE ROAD WITH THE DRAINAGE ON BOTH SIDES AND THE ELECTRIC POSTS AND SPARE AREA BEYOND THE TARRED PORTION.** **EXHIBIT P10 TRUE COPY OF THE INTERIM ORDER IN WPC 6941/2020 DATED 06/03/2020.** W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 31 ## **APPENDIX OF WP(C) 12149/2020** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED NO. 326/1999 OF SRO, CHENDAMANGALAM DATED 17/02/1999. EXHIBIT P2 ENCUMBRANCE CERTIFICATE NO.949 DATED NIL IN RESPECT OF 1.83 ARES (4.53 CENTS) OF PROPERTY IN SY. NO.163/1. EXHIBIT P3 TRUE COPY OF THE TAX RECEIPT DATED 25/05/2020. EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 22/02/2020. EXHIBIT P4(A) TRUE COPY OF THE REPLY. EXHIBIT P5 TRUE COPY OF THE RTI APPLICATION DATED 24/02/2020. EXHIBIT P5(A) TRUE COPY OF THE REPLY DATED 02/03/2020. EXHIBIT P6 TRUE PHOTOGRAPHS OF THE EARLIER DEMOLITION CARRIED OUT BY THE 6TH AND 7TH RESPONDENTS. EXHIBIT P7 TRUE COPY OF THE REPLY TO THE RTI APPLICATION RECEIVED FROM THE 5TH RESPONDENT DATED 10/03/2020. EXHIBIT P8 TRUE COPY OF THE NOTICE DATED 16/06/2020. EXHIBIT P9 TRUE COPIES OF THE PHOTOGRAPHS. EXHIBIT P10 TRUE COPY OF THE INTERIM ORDER IN WPC 6941/2020 DATED 06/03/2020.** W.P.(C)Nos.6941, 12202, 12175, 12149 & 15590 of 2020 32 ## **APPENDIX OF WP(C) 15590/2020** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A PHOTOGRAPH OF THE CUPOLA** **EXHIBIT P2 A PHOTOGRAPH OF THE FOUNDATION STONE WHICH REFLECTS THE DATE OF CONSTRUCTION AS 1954** **EXHIBIT P3** - **A TRUE COPY OF THE RELEASE DEED NO 1100/1970 DATED 30.12.1969 OF S.R.O PARAVUR** - **EXHIBIT P4 A TRUE COPY OF THE SURVEY PLAN PREPARED BY THE REVENUE AUTHORITIES IN THE YEAR 1960** - **EXHIBIT P5 A TRUE COPY OF THE NOTICE ISSUED BY THE 7TH RESPONDENT DATED 24.2.2020** - **EXHIBIT P6 A TRUE COPY OF THE PETITION DATED 20.7.2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT** - **EXHIBIT P7 A TRUE COPY OF THE PETITION DATED 20.7.2020 SUBMITTED BY THE PETITIONER BEFORE THE 6TH RESPONDENT** - **EXHIBIT P8 A TRUE COPY OF THE INTERIM ORDER IN WPC NO 12202/2020 DATED 22.6.2020** **EXHIBIT P9 A TRUE COPY OF THE INTERIM ORDER IN WPC NO 12175/2020 DATED 22.6.2020**