Disposed

Dr.v.a.Ashokan v. State of Kerala

Kerala HC25 Sept 2018WP(C)/2232/2017

Case brief

AI extract

What is this about?

Writ petition challenging notices for encroachment removal. Court held notices could not be stayed pending Lokayuktha complaint as encroachment extent was not its subject. Petitioners allowed to raise objections or avail statutory remedies.

What did the court decide?

Writ petition disposed keeping it open to petitioners to approach the appropriate authority to raise objections or avail statutory remedies.

Dr.v.a.Ashokan Vs State of Kerala — Public Procurement and Tenders | 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 SMT. JUSTICE P.V.ASHA

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TUESDAY ,THE 25TH DAY OF SEPTEMBER 2018 / 3RD ASWINA, 1940

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WP(C).No. 2232 of 2017-D

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PETITIONER/S:

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1 DR.V.A.ASHOKAN AGED 65 YEARS, S/O.VALLATH AYYAPPAN, DOCTORS DIAGNOSTIC LABORATORY, NEAR K.S.R.T.C.BUS STAND, EAST CHALAKUDY VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT.

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2 JOSHY

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AGED 45 YEARS, S/O.MALIYEKKAL, SOLAMANS AVENUE, NEAR K.S.R.T.C. BUS STAND, EAST CHALAKUDY VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT.

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BY ADVS.

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SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN SRI.M.ASHOK KINI

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, COLLECTORATE, AYYANTHOLE, THRISSUR, PIN-680003.

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2 THE ASSISTANT EXECUTIVE ENGINEER IRRIGATION SUB DIVISION NO.1, CHALAKUDY, THRISSUR DISTRICT, PIN-680307.

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BY ADV.SRI.SUNIL KURIAKOSE, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.V.ASHA, J. ---------------------------W.P.(C) No.2232 of 2017

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Dated this the 25^th day of September, 2018

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JUDGMENT

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The petitioners challenge Exts.P9 and P10 notices,

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issued by the Assistant Executive Engineer, under Rule 13A of the Kerala Land Conservancy Rules, directing them to remove the encroachments found in sy.no.431/10/2 and 431/10/1 of east Chalakkudy village on the south side of irrigation canal puramboke.

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2. According to the petitioners they have not encroached any property. They rely on Ext.P2 letter dated 27.8.2014 issued in favour of the 1^st petitioner according sanction for construction of RCC culvert between 4/400 and 4/500 chainage of Chalakkudy Branch Canal, in accordance with the conditions stipulated therein. The petitioners submit that in respect of the very same matter, Ext.P3 complaint is pending before the Lokayuktha, at the instance of one Sri.Aravindakshan, in which the petitioners as well as the Executive Engineer and RDO are arrayed as respondents and that the Executive Engineer has filed a counter affidavit in it. The petitioners therefore submit that the respondents have to wait for the outcome of that

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W.P.(C) No.2232/17

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complaint before proceeding with the notices Exts.P9 and P10, which are issued during the pendency of the said complaint.

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3. The 2^nd respondent has filed a counter affidavit stating that a portion of the building “Doctors Diagnostic Laboratory” is situated in irrigation canal and 1^st and 2^nd petitioners have constructed a compound wall on the northern side by illegally encroaching the irrigation land and that compound wall was built on the side protection wall of irrigation canal itself. It is also stated that the complaint is pending before the Lokayuktha in which the Executive Engineer has filed counter affidavit. On inspection it was prima facie found that there is encroachment. However as the exact extent could not be ascertained, they got the property measured and the additional Tahsildar, Chalakkudy furnished Ext.R2(a) sketch in which it is found that 1^st and 2^nd petitioners had illegally occupied and encroached the property of Irrigation Department.

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4. According to the respondents encroachment is clear from Ext.R2(a) and the notices are issued in accordance with law, after the receipt of Ext.R2(a) sketch, after ascertaining the actual extent of encroachment. It is seen

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W.P.(C) No.2232/17

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that the 1^st petitioner had as per Ext.P6 letter dated 28.10.2016 undertook before the Assistant Executive Engineer that in the event of any encroachment being found, it would be removed at his cost and that he is ready and willing to take any action in accordance with the decision in the complaint before the Lokayuktha, while requesting not to proceed with the notices. Petitioners submitted Ext.P8 letter on 2.12.2016 stating that the District Survey Superintendent has measured and demarcated the property on their request and requesting to proceed only after the sketch is received from him.

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5. However the petitioners have not produced the sketch, so far, in case any such survey was conducted by the the District Superintendent of Survey. He is not made a party to this writ petition. Respondents appear to be unaware of any survey being undertaken by the District Superintendent of Survey.

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6. In the above circumstances of the case, I do not find any justification in the request of the petitioners to keep in abeyance the proceedings pursuant to Exts.P9 and P10 notices issued in 2016, under the Land Conservation Rules, for removal of encroachment till the disposal of the complaint submitted by a third party before the Lok-Ayukta,

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W.P.(C) No.2232/17

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where the existence of or extent of encroachment cannot be the subject matter.

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7. I leave it open for the petitioners to approach the respondents by submitting their objections if any against the impugned notices or to avail statutory remedies available under the Land Conservancy Act and Rules.

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The writ petition is disposed of keeping it open to the petitioners to approach the appropriate authority.

Sd/-

P.V.ASHA

JUDGE

rkc

W.P.(C) No.2232/17

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APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT	P1	TRUE RECEI	COPY PT BY	OF THE PROPERTY TAX PAID THE 1ST PETITIONER.
EXHIBIT	P2	TRUE 2014.	COPY	OF THE SANCTION DATED 27-08-
EXHIBIT	P3	TRUE 2015.	COPY	OF THE COMPLAINT DATED 11-4-
EXHIBIT	P4	TRUE DATED	COPY 5.2.	OF THE WRITTEN STATEMENT 2016 FILED BY THE EXECUTIVE
		ENGIN DIVIS	EER, ION-I	IDAMALAYAR IRRIGATION PROJECT I.
EXHIBIT	P5	TRUE THE 2	COPY ND PE	OF WRITTEN STATEMENT FILED BY TITIONER.
EXHIBIT	P6	TRUE	COPY	OF THE REPRESENTATION DATED
		28.10 PETIT	.2016 IONER	SUBMITTED BY THE 1ST .
EXHIBIT	P7	TRUE	COPY	OF THE NOTICE DATED 30-11-
		2016 PETIT	ISSU IONER	ED IN THE NAME OF THE 1ST .
EXHIBIT	P8	TRUE	COPY	OF THE REPLY DTD 2-12-2016.
EXHIBIT	P9	TRUE ISSUE	COPY D IN	OF THE NOTICE DATED 18.1.2017 THE NAME OF 1ST PETITIOER.
EXHIBIT	P10	TRUE	COPY	OF THE NOTICES DATED 18-01-
		2017 PETIT	ISSU IONER	ED IN THE NAME OF 2ND .
RESPOND	ENTS'	EXHIBITS :
EXT.R2A		THE	ATTEST	ED COPY OF SKETCH AND PLAN
		ISSUE	D BY	THE REVENUE AUTHORITIES.

Dr.v.a.Ashokan v. State of Kerala

Case brief

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Dr.v.a.Ashokan v. State of Kerala

Case brief

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