Allowed

Haneefa Rawther v. the District Collector, Collectorate, Pathanamthitta

Kerala HC12 Nov 2018WP(C)/18484/2018

Case brief

AI extract

What is this about?

The Court quashed the re-survey and eviction proceedings treating petitioners' land as government road due to violation of natural justice. The cancellation of the land assignment pattayam was declared illegal without notice or hearing. Directions were given for re-doing survey with notice and reconsidering the pattayam.

What did the court decide?

Petitioners restored to possession; cancellation of pattayam quo warranto; survey to be redone with notice; pattayam reconsidered within 3 months.

Haneefa Rawther Vs the District Collector, Collectorate… — Land Acquisition | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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MONDAY ,THE 12TH DAY OF NOVEMBER 2018 / 21ST KARTHIKA, 1940

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WP(C).No. 18484 of 2018

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PETITIONERS:

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1 HANEEFA RAWTHER

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S/O. HASSAN RAWTHER @ ASSAN RAWTHER,AGED 64 YEARS,PALLITHEKKETHIL PALLICKAL VILLAGE,ADOOR TALUK, PATHANAMTHITTA DISTRICT- 691 554

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2 KABEER RAWTHER,S/O. HASSAN RAWTHER @ ASSAN RAWTHER,AGED 62 YEARS,AYATHIKONIL, PALLICKAL VILLAGE,ADOOR TALUK, PATHANAMTHITTA DISTRICT- 691 554

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3 SALIM RAWTHER,S/O HASSAN RAWTHAR @ ASSAN RAWTHER, AGED 59 YEARS,AYATHIKONIL PALLICKAL VILLAGE, ADOOR TALUK,PATHANAMTHITTA DISTRICT- 691 554

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BY ADV. SRI.K.K.SETHUKUMAR

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RESPONDENTS:

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1 THE DISTRICT COLLECTOR, COLLECTORATE, PATHANAMTHITTA PATHANAMTHITTA,PATHANAMTHITTA.P.O.- 689 645

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2 THE REVENUE DIVISIONAL OFFICER

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ADOOR, ADOOR.P.O.,PATHANAMTHITTA DISTRICT- 691 523

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3 THE TAHASILDAR TALUK OFFICE ADOOR, ADOOR.P.O.,PATHANAMTHITTA

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DISTRICT- 691 523

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4 THE EXECUTIVE ENGINEER PWD ROADS

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PWD DIVISION,

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PATHANAMTHITTA,PATHANAMTHITTA.P.O.PATHANAMTHITTA DISTRICT- 689 645

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5 THE ASST. ENGINEER PWD ROADS

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ADOOR, ADOOR.P.O.,PATHANAMTHITTA DISTRICT- 691 523

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WP(C).No. 18484 of 2018

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SRI.K.J.MUHAMMED ANZAR,SPL.GOVT.PLEADER(REVENUE)

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 18484 of 2018

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ALEXANDER THOMAS, J.

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==================

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W.P.(C).No. 18484 of 2018

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==================

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Dated this the 12^th day of November, 2018 JUDGMENT

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The prayers in the above Writ Petition (Civil) are as

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follows:-

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“ i. Issue a writ of mandamus or any other appropriate writ order or direction, directing the 1^st respondent to consider Exhibits. P3 representation in the light of Exhibit P1 Certificate and to take action to measure and fix the boundary of the property.

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ii. Issue a writ of mandamus or other appropriate writs or orders directing the respondents 1 to 3 to consider Exhibit:P3, P4 & P5 representation, in the light of Exhibit-P2 & P3 and prevent the 5^th respondent from trespassing into the petitioner's property and destroying the cultivations and other structures without further delay.

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iii. To grant such other reliefs which the Petitioners May seek from time to time and this Hon'ble Court December deem fit to be granted to the circumstances.”

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2. Heard Sri. K.K.Sethukumar, learned counsel

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appearing for the petitioners and Sri.K.J.Muhammed Anzar, learned special Government Pleader (Revenue) appearing for the respondents.

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3. The complaint voiced by the petitioners in the this proceedings is that even though their father was assigned 4.5 cents of land comprised in Survey No.248/1-1 in Pallickal Village on the basis of Ext.P-1 assignment

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WP(C).No. 18484 of 2018

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order dated 12.08.1982 and even though the same was being possessed and enjoyed by the petitioners after the death of their father, the petitioners have been evicted from the said land on the ground that, after re-survey the

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property the said survey number is a road puramboke and further that the land assignment pattaya granted to the petitioners' father also stands cancelled, etc. It is also stated that the 5^th respondent-Assistant Executive

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Engineer (PWD), Roads, Adoor, had threatened that the petitioners will be ousted from the said property and, on 14.03.2018, the 5^th respondent along with some others had trespassed into the property of the petitioners and had destroyed the cultivation and had demolished the house situated therein, etc. The petitioners had submitted Exts.P-2 to P-4 representations before respondents 1 to 3, which have gone unattended so far, etc. It is in the light of these factual averments that the petitioners have filed the instant writ petition with the aforementioned prayers.

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4. When the matter had come up for consideration on a previous occasion, this Court had specifically directed the learned Government Pleader concerned to get specific

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WP(C).No. 18484 of 2018 5

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instructions from the competent authority among the respondents, more particularly respondent No.3, as to whether due prior notice had been given to the petitioners by the Taluk Surveyor concerned in re-fixing

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the boundary of the road concerned and also whether they were granted opportunity of being heard prior to the cancellation of the land assignment pattayam granted to their predecessor, etc.

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5. The 3^rd respondent has filed a statement in the above matter, wherein it is stated that earlier the Village Officer, Pallickal, had reported that the PWD road puramboke is in re-survey No.252/1 in Block No.34 of Pallickal Village and that the Taluk Surveyor had issued statutory notice in Form No.12 of the Kerala Survey & Boundaries Act and had re-fixed the boundary of the road concerned on 16.02.2018 and a report along with a sketch has been given to the PWD for taking further action. Further it is stated that the land claimed by the petitioners is in old Survey No.248/1-1, which they got as per the land assignment pattayam, LA No. 33/81 of the Tahsildar (Land Assignment), Adoor and as per the village

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records, old survey No.248/1-1 is now recorded as

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WP(C).No. 18484 of 2018

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Resurvey No.252/1, which is a sarkar road. That the Taluk Surveyor had measured the road puramboke on 16.02.2018 and a report along with the sketch has been given to the PWD, Road on 22.02.2018 and that the petitioners submitted petition before the 1^st respondent only on 20.03.2018, after the eviction of the encroachment by the PWD authorities. That the Village Officer, Pallickal has also reported that the abovesaid land is now recorded as

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a sarkar road and the LA pattayam given to the petitioners has been cancelled and that now it is a part of the Kayamkulam-Punalur State Highway, etc.

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6. The petitioners would assert that no notice

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whatsoever was granted to the petitioners either by the 3^rd respondent-Tahsildar or the Taluk Surveyor concerned or by any other competent official regarding the proposed survey, measurement for re-fixation of the boundary and that the so-called survey and measurement done by the Taluk Surveyor on 16.02.2018 was behind the back of the petitioners and that they were totally unaware about it and that even post-decision, no copy of the report of the Taluk Surveyor along with the copy of the sketch, which

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was said to have been given to the PWD, has been made

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WP(C).No. 18484 of 2018

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available to the petitioners. Further that no prior notice or reasonable opportunity of being heard was granted to the petitioners before cancellation of Ext.P-1 land assignment pattayam given as per land assignment proceedings No.31/1981, which has been issued as early as on 12.08.1982 by the competent authority concerned in accordance with the provisions contained in the Kerala Government Land Assignment Act and the rules framed thereunder. The respondents have no case before this court whatsoever that prior notice was given to the petitioners by the Taluk Surveyor or any other competent authority concerned before the survey, measurement and re-fixation of the boundaries, which is stated to be done on 16.02.2018. So also, no notice or reasonable opportunity of hearing has been done to the petitioners before the cancellation of Ext.P1 pattayam. Therefore, to say the least, the abovesaid impugned proceedings of the respondents is ultra vires , illegal and void, only on the ground of flagrant violation of principles of natural justice and fairness. This Court is constrained to make this finding even without entering into any aspects of the matter regarding its merits.

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WP(C).No. 18484 of 2018

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7. Accordingly, it is declared and ordered that the impugned action taken by the respondents in treating the property of the petitioners as falling in sarkar puramboke road as per the so-called survey and identification boundaries said to have been done by the Taluk Surveyor on 16.02.2018 is illegal. It is also ordered that the cancellation of the Ext.P-1 pattayam granted to the petitioners' predecessors, without any reasonable opportunity of being heard to the petitioners

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or prior notice, is also declared to be illegal, ultra vires and unenforcible. The petitioners will be

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forthwith put back possession to the said property. Thereafter, the 3^rd respondent, Taluk Surveyor will take necessary steps to re-do the process of conducting survey, measurement and identification of the boundaries

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of the properties in question with due prior notice to

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the petitioners and respondents 4 & 5 of the PWD Department and any other affected persons. In the abovesaid process, survey, measurement and identification

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of the boundaries should be got done by the Taluk Surveyor concerned with due prior notice and in the abovesaid process, it should also be ascertained as to

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WP(C).No. 18484 of 2018 9 whether any mistakes have happened in the re-survey

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process, whereby the land covered by Ext.P-1 pattayam has been shown as road puramboke. The report of the Taluk Surveyor regarding the survey, measurement and identification of the boundaries of the property concerned along with the copy of the survey sketch, should be given to the petitioners and respondents 4 & 5. Thereafter, the 3^rd respondent-Tahsildar will hear the petitioners through their authorised representative as well as the representative of respondents 4 & 5 and then will take a decision in accordance with law as to whether there has been any mistakes in treating the petitioners' land as falling in road puramboke area and if so, as to how it has happened in spite of the land being assigned

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to the petitioners as per Ext.P-1. The petitioners should also be afforded a reasonable opportunity being heard. Thereafter, if the 3^rd respondent Tahsildar or any other competent authority proposes to proceed further for cancellation of Ext.P-1 pattayam, show cause notice should be issued to the petitioners stating the reasons for the proposed action to cancel the pattayam and after granting a reasonable opportunity being heard to the

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WP(C).No. 18484 of 2018 10 petitioners, a decision should be taken in the matter. The entire process in this regard should be duly completed by the 3^rd respondent and the other competent authorities concerned without much delay, preferably within a period of 3 months from the date of production of certified copy of this judgment. The petitioners' contention regarding compensation for demolition of their property in violation of law, is left open to be decided in appropriate proceedings, after the abovesaid process is over .

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With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.

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ALEXANDER THOMAS,JUDGE.

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SAS/12.11.2018

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WP(C).No. 18484 of 2018

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE PHOTOCOPY OF THE LAND ASSIGNMENT CERTIFICATE (PATTA) NO LA 33/81 DATED 12.08.1982

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EXHIBIT P2 TRUE PHOTOCOPY OF LAND ASSIGNMENT REGISTER EXHIBIT P3 TRUE PHOTOCOPY OF REPRESENTATION DATED 19.05.2018 GIVEN TO 1ST RESPONDENT EXHIBIT P4 TRUE PHOTOCOPY OF REPRESENTATION DATED 19.05.2018 GIVEN TO 2ND RESPONDENT EXHIBIT P5 TRUE PHOTOCOPY OF REPRESENTATION DATED 19.05.2018 GIVEN TO 4TH RESPONDENT EXHIBIT P6 TRUE PHOTOCOPY OF THE RECEIPT No. C6162812/18 DATED 20.03.2018 EXHIBIT P7 TRUE PHOTOCOPY OF THE RECEIPT NO.2143/18/B3 DATED 19.03.2018

Haneefa Rawther v. the District Collector, Collectorate, Pathanamthitta

Case brief

What is this about?

What did the court decide?

Haneefa Rawther v. the District Collector, Collectorate, Pathanamthitta

Case brief

What is this about?

What did the court decide?

What the court decided

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