Allowed

P.Sadasivan Nair v. State of Kerala

Kerala HC21 Jun 2016WP(C)/394/2005

Case brief

AI extract

What is this about?

This writ petition challenged eviction orders initiated under the Land Conservancy Act regarding occupancy of government puramboke land by petitioners. The Single Judge held that since the land vested in Thiruvananthapuram Corporation, authority for eviction under Section 207 of the Kerala Municipality Act lay with the Municipality, rendering revenue proceedings illegal and setting aside the order

What did the court decide?

The orders of the District Collector (Ext.P8) and the Commissioner (Ext.P9) initiating proceedings for eviction under the Land Conservancy Act were set aside as illegal.

P.Sadasivan Nair Vs State of Kerala — Land Acquisition | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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TUESDAY, THE 21ST DAY OF JUNE 2016/31ST JYAISHTA, 1938

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WP(C).No. 394 of 2005 (V)

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PETITIONER(S) :

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1. P. SADASIVAN NAIR,

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T.C.42/1221, PONNARA NAGAR, VALLAKKADAVU P.O., THIRUVANANTHAPURAM.

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2. K.GOPAKUMAR, T.C.41/409, MANACAUD, THIRUVANANTHAPURAM.

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3. P.MURUGAN, T.C.41/227, MANACAUD, THIRUVANANTHAPURAM.

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BY ADV. SRI.R.S.KALKURA

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RESPONDENT(S) :

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1. STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.

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2. SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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3. COMMISSIONER OF LAND REVENUE PUBLIC OFFICE BUILDING, MUSEUM JN., THIRUVANANTHAPURAM.

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4. DISTRICT COLLECTOR, COLLECTORATE, VANCHIYOOR, THIRUVANANTHAPURAM.

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...2/-

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WP(C).No. 394 of 2005 (V) -2-

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5. CHIEF ENGINEER, BRIDGES AND ROADS, OFFICE OF CHIEF ENGINEER (B&R), THIRUVANANTHAPURAM.

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6. THE DIRECTOR, ARCHAEOLOGY DEPARTMENT HOUSING BOARD JUNCTION, THIRUVANANTHAPURAM.

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7. THE COMMISSIONER, CORPORATION OF TRIVANDRUM, THIRUVANANTHAPURAM.

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R1 TO R6 BY SR. GOVT. PLEADER SRI. GEORGE MECHERIL R7 BY ADV. SRI.N.NANDAKUMARA MENON, SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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...3/-

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WP(C).No. 394 of 2005 (V)

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APPENDIX

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PETITIONER'S EXHIBITS :

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EXT.P1	: PHOTOCOPY OF THE PROCEEDINGS NO. A3. 12877/88 DATED 27.8.88 OF THE TAHSILDAR, TRIVANDRUM.
EXT.P2	TRUE COPY OF THE LETTER NO. 47201/U1/2001/REV.DATED 4.8.2001 FROM THE SECOND RESPONDENT.
EXT.P3	PHOTOCOPY OF THE REPRESENTATION DATED 25/4/02 SUBMITTED BY THE FIRST PETITIONER TO THE 4TH RESPONDENT FOR ASSIGNMENT OF LAND ON KUTTAKAPATTOM LEASE.
EXT.P4	PHOTOCOPY OF THE REPRESENTATION DATED 24/4/02 SUBMITTED BY THE SECOND PETITIONER TO THE 4TH RESPONDENT FOR ASSIGNMENT OF LAND ON KUTTAKAPATTOM LEASE.
EXT.P5	PHOTOCOPY OF THE REPRESENTATION DATED 27/4/02 SUBMITTED BY THE THIRD PETITIONER TO THE 4TH RESPONDENT FOR ASSIGNMENT OF LAND ON KUTTAKAPATTOM LEASE.
EXT.P6	PHOTOCOPY OF THE ORDER IN CMP NO.20865/2002 IN OP NO. 12193/2002 DATED 4.6.2002 OF THE HON'BLE HIGH COURT.
EXT.P7	PHOTOCOPY OF THE JUDGMENT IN OP 1546/03 DATED 1.6.2004 OF THE HON'BLE HIGH COURT.
EXT.P8	PHOTOCOPY OF THE PROCEEDINGS NO. B135580/98 DATED 31.8.2004 OF THE 4TH RESPONDENT.

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(Contd...)

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WP(C).No. 394 of 2005 (V)

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EXT.P9 PHOTOCOPY OF THE PROCEEDINGS NO. LR(K3) 48078/2004/K.DIS DATED 16.11.04 OF THE 3RD RESPONDENT.

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EXT.P10 PHOTOCOPY OF THE SITE WHERE 3RD AND 7TH RESPONDENT HAD CONSTRUCTED SHOP ROOM FOR THE ERSTWHILE SHOP OWNERS.

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EXT.P11 PHOTOCOPY OF THE SITE WHERE THE PETITIONERS SHOP IS SITUATED.

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RESPONDENT'S EXHIBITS : NIL

//TRUE COPY//

P.A. TO JUDGE

P.V.ASHA, J.

W.P.(C) No.394 of 2005

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Dated this the 21^st day of June, 2016

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JUDGMENT

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The petitioners are challenging the orders Exts.P8 and P9 by which proceedings were initiated against them under the Land Conservancy Act and they were directed to remove their petty shops which were unauthorizedly encroaching the land in 150 square links of land comprised in Sy.No.560/367, 225 square links of land comprised in Sy.No.560/372 and 150 sq.links of land comprised in Sy.No.560/367 in Vanchiyur Village. The Additional Tahsildar, Thiruvananthapuram as per notice dated 16.8.2002 had directed the petitioners to vacate the premises, as it was found that they had encroached the Government land. The petitioners filed appeal before the District Collector, Thiruvananthapuram and immediately thereafter approached this Court in O.P.No.1646 of 2003 and this Court by judgment dated 1.6.2004 directed the District Collector to dispose of the appeal filed by the petitioners, after affording an opportunity of hearing. The District Collector, after hearing the petitioners passed Ext.P8 order, seeing that the unauthorised shops run by them were in Government Puramboke land which was once recovered from the

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W.P.(C) No.394 of 2005

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encroachers in the year 1995 by the PWD for the purpose of widening the road. Notice was given by the Tahsildar in terms of the provisions contained in the Kerala Land Conservancy Act. The petitioners objected the same. The District Collector after considering the contentions of the petitioners and the report of the Tahasildar, found that the shops were run by the petitioners in Government land in the commercial area of the city which was recovered for road widening and that the land adjacent to the foot path was under the control of Archaeological Department. In those circumstances, the District Collector rejected the contentions of the petitioners and found that notice was issued in accordance with law and directed the Additional Tahasildar to evict the petitioners. The order of the District Collector was upheld by the Commissioner of Land Revenue in appeal. The request of the petitioners for assignment of the land in which they were conducting the shop, was also rejected.

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The petitioners have filed this writ petition challenging Exts.P8 and P9 orders saying that they have been in occupation of the puramboke land since the year 1986, 1988 and 1994 respectively and there is permissive sanction for their encroachment. It is also stated that the land is not required for Government for road widening. The petitioners also state that they are subjected to discriminatory

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W.P.(C) No.394 of 2005

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treatment in so far as all the encroachers are not being subjected to proceedings for eviction.

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The Land Revenue Commissioner has filed a counter affidavit justifying the proceedings initiated by the authorities for evicting the petitioners who encroached the Government land. It is stated that the proceedings were initiated in accordance with law.

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The Commissioner, Thiruvananthapuram Corporation has filed statement justifying the action taken by respondents 1 and 2 against the petitioners who were running bunk shops causing inconvenience and nuisance to the general public unauthorizedly in a very busy locality in the heart of Thiruvananthapuram city. It is also stated that the land in which the bunk shops are situated cannot be assigned as requested by the petitioners and that the petitioners have not obtained any license or permission from the Corporation for doing business in the bunk shops.

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I heard the learned counsel for the petitioners, the learned Government Pleader and the learned Standing Counsel for the Thiruvananthapuram Corporation.

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Even though no contention was raised in the writ petition regarding the authority of the revenue authorities to resort proceedings under the Land Conservancy Act, the learned counsel for

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W.P.(C) No.394 of 2005

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the petitioner argued that it is not for the revenue authorities to take action for eviction against unauthorised occupation if any in an area vested with the Municipality. A Division Bench judgment of this Court in Vathsan V. Razack [2003 (2) KLJ 271] , while considering the question regarding eviction from an area within the Cochin Corporation resorting to proceedings under the Kerala Land Conservancy Act by the authorities under the Revenue Department held that under section 207 of the Kerala Municipality Act, the authority to take proceedings for eviction is vested in the Municipality. Since the land in question got vested absolutely in the Corporation of Thiruvananthapuram, it is contended that in respect of the lands belonging to the Corporation the provisions of Land Conservancy Act, 1957 have no application since 30.5.1994, the date of commencement of the Kerala Municipalities Act, 1994 for eviction of unauthorised encroachment of property vested in Municipal Corporation.

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In the light of the above dictum laid down by this Court, proceedings initiated under the Land conservancy Act for eviction of the petitioners from the land vested in Thiruvananthapuram Corporation cannot be said to be legal. Therefore, the orders Exts.P8 and P9 cannot stand. Hence I set aside the same.

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The Corporation has stated that the petitioners are conducting

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W.P.(C) No.394 of 2005

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shops without permission from the Corporation. It is made clear that the Corporation will be free to take action for removing unauthorised encroachments in accordance with law.

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The writ petition is allowed accordingly.

Sd/-

P.V.ASHA

JUDGE

rkc

P.Sadasivan Nair v. State of Kerala

Case brief

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P.Sadasivan Nair v. State of Kerala

Case brief

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