WP(C).Nos.41396/16 (Y) & 9249/2017: P.J. Antony; Peter D.F., K.J. Joseph and K.R. Simon v. District Collector Ernakulam; Sub Collector Fort Kochi; Addl. Tahsildar Fort Kochi; Cochin Corporation; Land Revenue Commissioner; and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **MONDAY, THE 18TH DAY OF NOVEMBER 2019 / 27TH KARTHIKA, 1941** ## **WP(C).No.41396 OF 2016(Y)** ## **PETITIONER/S:** ## **P.J.ANTONY** **AGED 43 YEARS, S/O.P.K.JOSEPH, PALLIPARAMBIL HOUSE, MOOLAMKUZHI, KOCHI, PIN 682 002.** **BY ADV. SRI.P.A.ABDUL JABBAR** ## **RESPONDENT/S:** - **1 THE ADDL.THAHASILDAR, FORT KOCHI 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 695 009.** - **6 ANTONY, S/O.K.V.FRANCIS, AGED 46 YEARS KURISINGAL HOUSE, MOOLAMKUHY, KOCHI - 682 002** - **7 KENNETH, S/O.PETER, AGED YEARS, CC 15/894D WHITE VILLAGE, MOOLAMKUZHI, KOCHI - 682 002** - **8 AUGUSTINE RUBAN, S/O.JACOB, AGED YEARS VELIVIL HOUSE, WHITE VILLAGE, MOOLAMKUZHI, KOCHI - 682 002** - **9 THOMAS FRANKLIN,S/O.JACOB, AGED YEARS VELIVIL HOUSE, WHITE VILLAGE, MOOLAMKUZHI, KOCHI - 682 002** - **10 WILSON CYRIL, S/O.CYRIL, AGED YEARS, MUNTHUNGAL HOUSE WHITE VILLAGE, MOOLAMKUZHI, KOCHI - 682 002** WP(C).Nos.41396/16 & 9249/17 2 **11 LENIN, S/O.IRANI, AGED YEARS, NEDIYODATH HOUSE CC15/893, MOOLAMKUZHI, KOCHI - 682 002** **R1 BY GOVERNMENT PLEADER** **R1 BY ADV. SRI.RAAJESH S.SUBRAHMANIANSCCOCHIN CO R3 BY ADV. SRI.RAAJESH S.SUBRAHMANIAN,SC,COCHIN CO R6 BY ADV. P.K.GEORGE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.11.2019, ALONG WITH WP(C).9249/2017(E), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).Nos.41396/16 & 9249/17 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **MONDAY, THE 18TH DAY OF NOVEMBER 2019 / 27TH KARTHIKA, 1941** ## **WP(C).No.9249 OF 2017** ## **PETITIONER/S:** - **1 PETER D.F AGED 42 YEARS, S/O.FRANCIS, DEVASWOM PARAMBIL, MOOLAMKUZHI, KOCHI PIN 682 002.** **2 K.J.JOSEPH AGED 44 YEARS, S/O.JOSEPH, KURISINKAL HOUSE, MOLLAMKUZHI, KOCHI, PIN 682 002.** - **3 K.R.SIMON** **AGED 44 YEARS, S/O.RAPHAEL, SECRETARY - SEAVIEW GYMNASIUM, MOOLAMKUZHI, RESIDING AT KANNETH HOUSE, H. NO. 15/2081A, MOOLAMKUZHI, JANATHA ROAD, KOCHI.** **BY ADVS. SRI.G.KRISHNAKUMAR SMT.M.L.REMYA** ## **RESPONDENT/S:** - **1 DISTRICT COLLECTOR ERNAKUAM, CIVIL STATION, KAKKANAD, KOCHI 682 030.** - **2 THE SUB COLLECTOR O/O.THE SUB COLLECTOR, FORT KOCHI, KOCHI 682 001.** - **3 THE ADDITIONAL TAHSILDAR FORT KOCHI, KOCHI 682 001.** - **4 CORPORATION OF KOCHI PARTK AVENUE ROAD, ERNAKULAM, KOCHI 682 011, REP. BY ITS SECRETARY.** - **5 ASSISTANT EXECUTIVE ENGINEER CORPORATION OF KOCHI, ZONAL OFFICE, FORT KOCHI, KOCHI 682 002.** - **6 LAND REVENUE COMMISSIONER THIRUVANANTHAPURAM 695 009.** WP(C).Nos.41396/16 & 9249/17 4 **7** **P.J.ANTONY AGED 44 YEARS, S/O.P.K.JOSEPH, PALLIPARAMBIL HOUSE, MOOLAMKUZHI, KOCHI 682 002.** **R1, R7 BY ADV. SRI.P.A.ABDUL JABBAR** **R1 BY ADV. SMT.SAREENA GEORGE,SC,COCHIN CORPORATION R4 BY ADV. SMT.SAREENA GEORGE,SC,COCHIN CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.11.2019, ALONG WITH WP(C).41396/2016(Y), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).Nos.41396/16 & 9249/17 5 ## **JUDGMENT** As both these writ petitions involve a common issue, they are taken up for consideration together and disposed by this common judgment. For the sake of convenience, the reference to facts and exhibits is from W.P.(C)No.41396/2016. 2. The petitioner is stated to be the absolute owner in possession and enjoyment of land measuring 16.673 cents in Sy.Nos.160/4 and 174/2 of Rameswaram village in Kochi Taluk. The said extents of land are stated to have been obtained by the petitioner through Document No.2518/95 and Settlement Deed No.2820/2009, respectively. The land covered by both these documents are stated to be lying together within four boundaries and there is no demarcation existing between the said two properties. The petitioners also state that they have constructed buildings on both the aforesaid items of properties and have also obtained numbers for the said building from the Corporation of Cochin. It would appear that pursuant to a complaint filed against the petitioner in the year 2013, the Revenue Divisional Officer found that the petitioner had incidentally encroached into an area of 0.61 Ares (approximately 1.5 cents) of puramboke land which was in the nature of a 'thodu'. The appeal and revision filed by the petitioner against the said finding of the Revenue Divisional Officer did not meet with any success, and the plea of the petitioner was rejected by the District Collector and the Land Revenue Commissioner respectively. In Ext.P7 order of the Land Revenue Commissioner, however, the said authority, while dismissing the revision petition, reserved the liberty of the petitioner to approach the relevant authorities for the purposes of assignment of the puramboke land that was found in his possession and occupation. Acting on the strength of the said liberty reserved in Ext.P7 order, the petitioner preferred Exts.P8 and P9 applications for WP(C).Nos.41396/16 & 9249/17 6 assignment of the aforesaid extent of 0.61 Ares of land. He, thereafter, approached this Court seeking a stay against dispossession till such time as orders were passed on Exts.P8 and P9 applications for assignment. 3. When the matter came up for admission, this Court, by an order dated 30.12.2016, directed that further proceedings pursuant to Ext.P7 order of the Land Revenue Commissioner shall be kept in abeyance till such time as the applications for assignment preferred by the petitioner were considered by the respective authority under the Kerala Land Assignment Act and Rules. The interim orders granted were subsequently extended from time to time and continues to be in force even today. In the meanwhile, W.P.(C)No.9249/2017 was filed before this Court by neighbouring land owners, who seek an implementation of Ext.P7 order of the Land Revenue Commissioner referred above. It is stated that it was on their complaint that proceedings were initiated against the petitioner in 2013 by the Revenue Divisional Officer, which proceedings have since culminated in Ext.P7 order of the Land Revenue Commissioner. 4. A counter affidavit has been filed by the Additional Tahsildar in W.P.(C)No.41396/2016 wherein the sequence of events leading to the passing of Ext.P7 order is detailed and it is stated that Ext.P7 order has not been implemented only because of the pendency of the writ petition and the stay granted therein. It is stated that no decision has been taken on the application for assignment preferred by the petitioner till date. The learned Standing Counsel for the Corporation would submit that while the consent of the Corporation for assignment of the land had been sought by the authorities, the Corporation by its decision dated 31.05.2017 had categorically refused consent for supporting the application of the petitioner in W.P.(C)No.41396/2016 for assignment. WP(C).Nos.41396/16 & 9249/17 7 5. I have heard Sri.P.A.Abdul Jabbar, the learned counsel for the petitioner in W.P.(C)No.41396/2016, Sri.G.Krishna Kumar, the learned counsel for the petitioners in W.P.(C)No.9249/2017, the learned Standing Counsel for the Corporation in both the writ petitions and Smt.Vidhya A.C., the learned Government Pleader for the official respondents of the State in both the writ petitions. 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 assignment, WP(C).Nos.41396/16 & 9249/17 8 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. ## **Sd/-** ## **A.K.JAYASANKARAN NAMBIAR JUDGE** sd WP(C).Nos.41396/16 & 9249/17 9 ## **APPENDIX OF WP(C) 41396/2016** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1. COPY OF THE TAX RECEIPTS. EXHIBIT P2. COPY OF THE TAX RECEIPT. EXHIBIT P3. COPY OF THE TAX RECEIPT ISSUED BY COCHIN CORPORATION. EXHIBIT P4. COPY OF THE TAX RECEIPT ISSUED BY COCHIN CORPORATION. EXHIBIT P5. COPY OF THE TAX RECEIPT ISSUED BY COCHIN CORPORATION. EXHIBIT P6. COPY OF THE SKETCH. EXHIBIT P7. COPY OF THE ORDER PASSED BY THE 5TH RESPONDENT. EXHIBIT P8. COPY OF THE APPLICATION SUBMITTED BEFORE THE 5TH RESPONDENT. EXHIBIT P9. COPY OF THE APPLICATION SUBMITTED BEFORE THE 4TH RESPONDENT.** sd WP(C).Nos.41396/16 & 9249/17 10 ## **APPENDIX OF WP(C) 9249/2017** ## **PETITIONER'S/S EXHIBITS:** **EXT.P1 TRUE COY OF THE TEMPORARY RESTRAINT ORDER DATED 15.11.2013 OF THE 3RD RESPONDENT EXT.P2 TRUE COPY OF THE DIRECTION DATED 21.10.2013 ISSUED BY THE 2ND RESPONDENT TO THE SI OF POLICE, THOPPUMPADY EXT.P3 TRUE COPY OF THE JUDGMENT DATED 30.5.2014 IN WPC NO. 13642/2014 BY THIS HON'BLE COURT EXT.P4 TRUE COPY OF THE REPORT OF THE TALUK SURVEYOR KOCHI EXT.P5 TRUE COPY OF SKETCH OF THE TALUK SURVEYOR, KOCHI EXT.P6 TRUE COPY OF THE ORDER DATED 7.8.2014 OF THE 3RD RESPONDENT EXT.P7 TRUE COY OF THE ORDER DATED 10.8.2015 OF THE 2ND RESPONDENT EXT.P8 TRUE COPY OF THE ORDER DATED 8.2.2016 OBTAINED UNDER RTI ACT EXT.P9 TRUE COPY OF THE JUDGMENT DATED 23.3.2016 IN WPC NO. 11280/2016 OF THIS HON'BLE COURT EXT.P10 TRUE COPY OF THE SKETCH EXT.P11 TRUE COPY OF THE ORDER NO. LRK4- 17820/2016 DATED 30.11.2016 PREFERRED BY THE 7TH RESPONDENT BEFORE THE 6TH RESPONDENT EXT.P12 TRUE COPY OF THE APPLICATION SUBMITTED BY THE 7TH RESPONDENT TO THE 6TH RESPONDENT EXHIBIT P13 THE TRUE COPY OF THE DOCUMENT NO.998/1957 OF KOCHI SUB REGISTRY. EXHIBIT P14 THE TRUE COPY OF THE DOCUMENT NO.1816/1976 KOCHI SUB REGISTRY. EXHIBIT P15 TRHE TRUE COPY OF THE PLAINT IN O.S.125/1996 ON THE FILES OF THE MUNSIFF'S COURT, KOCHI. EXHIBIT P16 THE TRUE COPY OF THE WRITTEN STATEMENT OF** WP(C).Nos.41396/16 & 9249/17 11 **O.S.125/1996 ON THE FILES OF THE MUNSIFF'S COURT, KOCHI.** **EXHIBIT P17 THE TRUE COPY OF THE IMPLEADING PETITION FILED BY THE 6TH RESPONDENT IN O.S.125/1996.** **EXHIBIT P18 THE PHOTOCOPY OF THE JUDGMENT IN O.S.125/1996 IN THE FILES OF THE MUNSIFF'S COURT, KOCHI.** - **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R7(a) TRUE COPY OF THE JOINT COMPLAINT SUBMITTED BY THE PETITIONERS ALONG WITH ONE V.J.ANTONEY DATED 03.10.2013.** **EXHIBIT R7(b) TRUE COPY OF THE LETTER RECEIVED FROM THE RDO OFFICE, FORT KOCHI DATED 28.06.2015.** **EXHIBIT R7(c) TRUE COPY OF THE DEMAND NOTICE RECEIVED FROM THAHASILDAR, KOCHI DATED 23.01.2008.** **EXHIBIT R7(d) TRUE COPY OF THE RECEIPT FOR PAYMENT OF BUILDING TAX DATED 02.01.2009. EXHIBIT R7(e) TRUE COPY OF THE PROPERTY TAX RECEIPTS DATED 23.06.1998 AND 19.06.2000. EXHIBIT R7(f) TRUE COPY OF THE PROPERTY TAX RECEIPTS DATED 24.09.2001. EXHIBIT R7(g) TRUE COPY OF THE JUDGMENT IN S.A.NO.854/2002 OF THE HON'BLE HIGH COURT DATED 04.08.2015. EXHIBIT R7(h) TRUE COPY OF THE FIR IN CRIME NO.1666/14 OF THOMPPUMPADY POLICE STATION DATED 02.12.2014. EXHIBIT R7(i) TRUE COPY OF THE FIR IN CRIME NO.1155/14 OF THOMPPUMPADY POLICE STATION DATED 01.08.2014.** sd