Quashed

Joju John v. Assistant Executive Engineer

Kerala HC15 Nov 2018WP(C)/32021/2018

Case brief

AI extract

What is this about?

The High Court of Kerala quashed an order directing land owners to remove unauthorized occupation of poramboke land. The court held that dispensing with prior notice was illegal in these facts, and proceedings against the original named party abated upon his death, rendering the order null and void. Proper enquiry with notice must precede future action against heirs.

What did the court decide?

The impugned Ext.P-8 order is declared null and void and stands quashed. Respondents directed to conduct proper enquiry with prior notice if proceeding against legal heirs.

Joju John Vs Assistant Executive Engineer — Land Acquisition | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE ALEXANDER THOMAS

¶4

THURSDAY, THE 15TH DAY OF NOVEMBER 2018/24TH KARTHIKA, 1940

¶5

WP(C).No.32021 of 2018

¶6

PETITIONER:

¶7

JOJU JOHN, AGED 37 YEARS, S/O JOHN MATHEW, KANDAMKERY HOUSE, MANNUTHY P.O., PIN-680 651, THRISSUR DISTRICT.

¶8

BY ADVOCATES SRI.REJI GEORGE, SMT.ANUPAMA JOHNY, SRI.BINOY DAVIS, SRI.JOE JOSEPH KOCHIKUNNEL, SRI.RAMU RAJENDRAN & SRI.R.P.SREENIVASAN

¶9

RESPONDENTS:

¶10

1 ASSISTANT EXECUTIVE ENGINEER, O/O THE ASSISTANT EXECUTIVE ENGINER, PUBLIC WORKS DEPARTMENT, (ROAD DIVISION) THRISSUR-680020.

¶11

2 STATE OF KERALA, REPRESENTED BY THE SECRETARY, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

¶12

BY SRI.SAIGI JACOB PALATTY,SR.GOVT.PLEADER

¶13

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

ALEXANDER THOMAS, J.

¶15

W.P.(C)No. 32021 of 2018

¶16

Dated this the 15^th day of November, 2018

¶17

J U D G M E N T

¶18

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

¶19

“

¶20

i. To declare Ext.P8 order issued by the 1^st respondent is illegal and against the provisions of the Kerala Land Conservancy Act and quash Ext.P8 order issued by the 1^st respondent.

¶21

ii. To pass such other order or direction as is just and proper to the facts and circumstances of the case. ”

¶22

Heard Sri.Reji George, learned counsel appearing for

¶23

the petitioner, and Sri.Saigi Jacob Palatty, learned Senior Government Pleader, appearing for the respondents.

¶24

The petitioner claims to be a co-owner of 8¼ cents

¶25

(3.34 Ares) of property in Sy.No.295/3 of Ollukkara Village, Thrissur Taluk, Thrissur Revenue District. The petitioner is aggrieved by Ext.P-8 order dated 29.9.2018 issued by the 1^st respondent, purportedly under Rule 13A of the Kerala Land Conservancy Rules, 1958, which is directed against the deceased father of the petitioner, whereby he was directed to remove the alleged unauthorized occupation of the poramboke land in Sy.No.295/4 of Ollukkara Village, Thrissur Taluk.

¶26

The petitioner would assert that the impugned Ext.P-8

¶27

..3..

¶28

W.P.(C).No.32021/2018

¶29

order has been issued by the 1^st respondent, without issuing any notice either to his deceased father Sri.John Mathew, or to the petitioner, or to any other legal heirs of his deceased father, as contemplated under Section 12 of the Kerala Land Conservancy Act, and without affording an opportunity of being heard to any of such affected parties. Accordingly it is urged that, Ext.P-8 order rendered by the 1^st respondent is in total violation of the Kerala Land Conservancy Act and the Rules framed thereunder, as well as the elementary principles of natural justice and fairness etc.

¶30

A perusal of Ext.P-8 order would show that the same is issued in the name of the petitioner's deceased father Sri.John Mathew. As evident from Ext.P-4 death certificate dated 19.1.2016 issued by the Adatt Grama Panchayath, the said John Mathew had died on 10.1.2016. The petitioner would assert that, he and the other legal heirs of his deceased father are in possession and enjoyment of the abovesaid property of 8.25 cents. Exts.P-1 & P-2 are the prior title deeds, and the petitioner's father had purchased the said property from the title holder of Ext.P-2, as per Ext.P-3 registered sale deed dated 8.11.1991 of SRO, Ollukkara. That

¶31

W.P.(C).No.32021/2018

¶32

..4..

¶33

pursuant to Ext.P-3 registered sale deed the petitioner's father had secured mutation of the property in his favour, and he was paying basic land tax in respect of the said property under Thandaper No.7537, as evident from Exts.P-6 & P-7 land tax receipts etc. Ext.P-5 the family membership certificate issued by the Village Officer concerned would show that, the widow and children of the deceased John Mathew are his legal representatives and his children including the petitioner are his legal representatives etc.

¶34

Section 11(2) and Section 12 of the Kerala Land Conservancy Act envisages that, issuance of prior notice to the affected party is mandatory. But Section 11(3) of the said Act also envisages extra ordinary situations where such prior notice is to be dispensed with, owing to emergent situations envisaged therein. Rule 9 of the Kerala Land Conservancy Rules, 1958, envisages issuance of notice in terms of Rule 12. Rule 13A also envisages that action could be taken against the alleged occupants, as envisaged in Section 11(3) of the Act by dispensing with pre-decisioned notice. From the reading of impugned Ext.P-8 order it appears that, the same has been issued purportedly under Rule 13A. What exactly was the emergent situation by which the

¶35

..5..

¶36

W.P.(C).No.32021/2018

¶37

respondent authority had found that it is imperative in public interest, that notice should be dispensed with to the affected party etc, are not known from a reading of Ext.P-8 order. All what is

¶38

stated therein is that, an order dated 9.7.2002 rendered by the Apex Court in WP(C).No.318/2002, there has been directions that effective action should be taken to evict unauthorised occupants in public places who have constructed huts/bunks/shops/residences/memorials/swaroopam etc in public interest etc. The learned counsel appearing for the petitioner has

¶39

made available a copy of the order dated 9.7.2002 rendered by the

¶40

Apex Court in WP(C).No.318/2002 which reads as follows.

¶41

“ We see no illegality in the respondents taking steps to demolish the Mandir if it is constructed unauthorisedly and without building plans being passed.

¶42

We see no justification whatsoever for the High Court at Ranchi to have given any permission with regard to the construction of any wall or with regard to the diversion of drain, etc, referred to in the letter dated 1^st February, 1993. Usurpation of public property in the name of religion and construction of religious places without permission from the Municipal Authorities cannot be permitted. The modus operandi of grabbing public land and erecting buildings illegally primarily for the benefit of the perpetuator has to come done with a heavy hand. We see no merit in this petition and the same is, accordingly, dismissed.

¶43

We expect all the State Governments to take appropriate action in preventing such encroachments and illegalities wherever they come up. Copy of the order be sent to all the Chief Secretaries. ”

¶44

..6..

¶45

W.P.(C).No.32021/2018

¶46

A reading of the said order of the Apex Court would disclose that, certain directions have been issued in relation to a matter which had arisen in the High Court of Ranchi in respect to construction of any wall or with regard to the diversion of drain, etc, in connection with usurpation of public property in the name of religion and construction of religious places without permission from the Municipal Authorities etc. The Apex Court has held that, such usurpation of public property in the name of religion and construction of religious places without permission from the Municipal Authorities cannot be permitted. The concluding portion of the said order says that, it is expected that all the State Governments to take appropriate action in preventing such encroachments and illegalities wherever they come up etc. The said observations made by the Apex Court in the context of encroachments in public places in the name of religion and construction of religious places without permission from the Municipal Authorities does not arise in the facts of this case. Therefore this Court has no hesitation to hold that, dispensation notice to the affected person is illegal and ultravires in the facts of

¶47

..7..

¶48

W.P.(C).No.32021/2018

¶49

this case. That apart very crucially the petitioner would assert that, the property in occupation by his father during his lifetime, and by the petitioner and the other legal heirs is 8.25 cents in of Sy.No.295/3 of Ollukkara Village. Whereas, the alleged encroachment is stated to be in property in Sy.No.295/4 coming to an extent of 0.0082 Hectares of Puramboke. The petitioner has asserted that, neither his father nor the legal heirs have at any point of time occupied or encroached into any Government poramboke land, and that they are occupying only the land within the title which is in Sy.No.295/3, and that they have nothing to do with the property in Sy.No.295/4. If the respondents had shown the minimum fairness by issuing a prior notice, then this aspect of the matter would have been made clear by the affected persons. That apart even if it is assumed that, the proceedings in relation to Ext.P-8 was initiated during the lifetime of the affected party (John Mathew), it is now beyond dispute that, the said party (John Mathew) had died on 10.1.2016 and therefore the said proceedings if initiated during his lifetime would have abated at the time of his death, and the action of the respondents proceeding further against

¶50

..8..

¶51

W.P.(C).No.32021/2018

¶52

him even after his death, is nothing but illegal and ultra vires and amounts to proceeding against a dead person. Hence it is only to be ordered that, Ext.P-8 is null and void as against the affected party who had died even prior to the issuance of Ext.P-8. In the light of these aspects, the impugned Ext.P-8 order is only to be interdicted by this Court.

¶53

Before parting this case this Court would only observe that, in case the respondents have any inclination to proceed as against the petitioner and the other legal heirs of the deceased John Mathew, then they should conduct a proper enquiry by the Tahsildar/Taluk Surveyor, and ascertain whether the petitioner and the other legal heirs are in any manner occupying the alleged Government puramboke land in Sy.No.295/4 etc, and in that regard necessary survey and measurement should be got done by the Taluk Surveyor concerned, with due prior notice to the petitioner, and copy of the report of the Taluk Surveyor along with a copy of the survey sketch showing the alleged encroachment if any, should be given to the petitioner and the other legal heirs before they proceed any further. In the light of these aspects it is

¶54

..9..

¶55

W.P.(C).No.32021/2018

¶56

ordered that, the impugned Ext.P-8 order will stand quashed. This Court would wonder as to how the respondents has issued Ext.P-8 order as late as on 29.9.2018, purportedly on the basis of the order dated 9.7.2002 rendered by the Apex Court in WP(C).No.318/2002 which pertains to, usurpation of public property in the name of religion and construction of religious places without permission from the Municipal Authorities.

¶57

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

¶58

Sd/-

¶59

ALEXANDER THOMAS, JUDGE

¶60

MMG

¶61

W.P.(C).No.32021/2018

¶62

..10..

¶63

APPENDIX

¶64

PETITIONER'S EXHIBITS:

¶65

EXHIBIT P1 TRUE COPY OF PURCHASE CERTIFICATE NO.4114/1975 DATED 24.10.1975 ISSUED BY THE LAND TRIBUNAL, OLLUKKARA.

¶66

EXHIBIT P2 TRUE COPY OF SALE DEED NO.576/1988 DATED 05.2.1988 OF OLLUKKARA SUB REGISTRY.

¶67

EXHIBIT P3 TRUE COPY OF SALE DEED NO.2953/1991 DATED 08.11.1991 OF OLLUKKARA SUB REGISTRY.

¶68

EXHIBIT P4 TRUE COPY OF DEATH CERTIFICATE OF SRI.JOHN MATHEW DATED 19.1.2016 ISSUED BY THE REGISTRAR OF BIRTHS AND DEATHS, ADAT GRAMA PANCHAYATH.

¶69

EXHIBIT P5 TRUE COPY OF THE FAMILY MEMBERSHIP CERTIFICATE NO.423/2016 DATED 07.2.2016 OF LATE JOHN MATHEW ISSUED BY THE VILLAGE OFFICER, OLLUKKARA.

¶70

EXHIBIT P6 TRUE COPY OF BASIC TAX RECEIPT NO.5388223 DATED 25.10.2011 ISSUED BY VILLAGE OFFICER, OLLUKKARA.

¶71

EXHIBIT P7 TRUE COPY OF BASIC TAX RECEIPT NO.6850587 DATED 02.5.2016 ISSUED BY VILLAGE OFFICER, OLLUKKARA.

¶72

EXHIBIT P8 TRUE COPY OF ORDER DATED 29.9.2018 ISSUED BY THE 1ST RESPONDENT.

Joju John v. Assistant Executive Engineer

Case brief

What is this about?

What did the court decide?

Joju John v. Assistant Executive Engineer

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Padhmanabhan Cherikkalingal Vs the District Collector, Malappuram

Sindhu Satheesh Vs the State of Kerala

Muhammed Vs the State of Kerala

Thressia Paul Vs the District Collector

Jacob Japasingh Vs State of Kerala

Muraleedharan Pillai Vs State of Kerala