Remanded

Sreenadevi Kunjamma G. v. State of Kerala

Kerala HC8 Feb 2019WP(C)/2900/2019

Case brief

AI extract

What is this about?

The Kerala High Court set aside impugned eviction orders for lack of prior survey and measurement. The Tahsildar was directed to commission a fresh survey with notice, ascertain encroachment, allow the petitioner a hearing, and decide the matter within two months.

What did the court decide?

Impugned orders set aside; direction to Tahsildar to conduct survey with notice, grant hearing, and decide within two months.

Sreenadevi Kunjamma G. Vs State of Kerala — Land Acquisition | Kerala HC (2019)

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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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FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940

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WP(C).No. 2900 of 2019

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PETITIONER:

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SREENADEVI KUNJAMMA G. D/O. SASIDHARAN UNNITHAN,

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AYANIVELIL HOUSE, KAMBALADY, PORUVAZHI P. O., KOLLAM, PIN - 690 520

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BY ADV. SMT.N.P.ASHA

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RESPONDENTS:

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1 STATE OF KERALA

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REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001

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2 DISTRICT COLLECTOR

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KOLLAM, PIN - 690 001

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3 REVENUE DIVISIONAL OFFICER KOLLAM, PIN - 695 001

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4 TAHSILDAR (LR) KUNNATHUR TALUK, KOLLAM, PIN - 695 001

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5 VILLAGE OFFICER PORUVAZHI, KOLLAM, PIN - 690 520

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6 REMADEVI W/O. CHELLAPPAN PILLAI, MADHANOOR VADAKKETHIL (KIZHAKKEPURA), KAMBALADY, PORUVAZHI P. O., KOLLAM, PIN - 690 520

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SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P(C)No.2900 of 2019

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ALEXANDER THOMAS, J.

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

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W.P(C)No.2900 of 2019

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

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Dated this the 8^th day of February, 2019

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JUDGMENT

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

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“i) Call for the records connected with the case

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ii) Issue a writ of certiorari or appropriate writ or order or direction, to quash Ext.P8 order of 3^rd respondent

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iii) Issue a writ of mandamus or appropriate writ or order or direction, directing the respondents 3 to 5 not to evict the petitioner on the basis of Ext.P8 order.

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iv) Declare that Ext.P8 order of the 3^rd respondent not in compliance with KLC Act 1957 and the same is illegal and arbitrary.

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v) Direct the 3^rd respondent to re-consider the matter giving an opportunity of hearing to the petitioner

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vi) Stay all further proceedings pursuant to Ext.P8 order of 3^rd respondent

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vii) Pass such other appropriate writ order or direction or order this Honourable Court may deem fit and proper to meet the ends of Justice.”

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Heard Smt.N.P.Asha, learned counsel appearing for the

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petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondents 1 to 5. In the nature of the orders proposed to be passed in this Writ Petition, notice to contesting respondent No.6 will

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stand dispensed with.

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W.P(C)No.2900 of 2019

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The petitioner is aggrieved by the impugned proceedings dated 28.02.2018 issued by the 4^th respondent-Tahsildar under the provisions of the Kerala Land Conservancy Act, which has been affirmed by the impugned Ext.P-8 Appellate Order dated 24.10.2018 issued by the 3^rd respondent-RDO. One of the main contention raised by the petitioner is that the impugned eviction measures have now been initiated without conducting any survey and measurement of the subject property with prior notice to the petitioner to ascertain whether the petitioner is in encroachment of any government property. Therefore, the said process is vitiated by illegality and impropriety, etc. Yet another contention raised is that so far the finalisation of the proceedings in the re-survey has not been ordered and that therefore, any survey and measurement without finalising the re-survey process cannot be the basis for determining as to whether the petitioner is in encroachment of any government land, etc. When the matter had come up for consideration on 31.01.2019, this Court had directed respondents 2, 3 & 4 to furnish instructions as to whether proper survey and measurement was duly carried out with due prior notice to the petitioner, which has disclosed that the petitioner has encroached into the government property/puramboke property before the impugned decisions has been rendered and this Court had also ordered maintenance of status quo of the subject property. Now Sri.Saigi Jacob Palatty, learned Senior

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Government Pleader appearing for official respondents 1 to 5 would submit that the 4^th respondent-Tahsildar has now furnish written instructions as per letter No.A4-4471/2017 dated 28.02.2018 stating that though survey and measurement of the government property was duly carried out before the land conservancy proceedings was initiated against the petitioner. Prior notice to the petitioner was not issued to him.

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Accordingly, it is only to be ordered that the impugned proceedings are illegal and unenforceable. In that view of the matter, it is ordered that the impugned order dated 28.02.2018 issued by the 4^th respondent-Tahsildar as well as the impugned Ext.P-8 Appellate Order dated 24.10.2018 issued by the 3^rd respondent-RDO will stand set aside, so as to effectuate a remit to the 4^th respondent-Tahsildar for consideration of the entire issue afresh. The 4^th respondent will ensure that a survey and measurement of the subject property concerned is effected by the Taluk Surveyor concerned or any other Surveyor, with due prior notice to the petitioner and the Surveyor will conduct the survey and measurement process, after ascertaining the title deeds, old survey records, new survey records and any other relevant piece of materials and then will ascertain as to whether the petitioner is in occupation only in respect of property within its lawful title and possession or whether he is occupation/possession of any government property/puramboke property/PWD road, etc. In the

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event that the Surveyor finds any encroachment, he should also show the exact nature and extent of the alleged encroachment in the survey sketch. Copy of the report of the Surveyor and copy of the survey sketch should also be given to the petitioner in advance. Thereafter, the 4^th respondent may issue appropriate notice to the petitioner and the petitioner will furnish his written submissions in the matter and the 4^th respondent will grant a reasonable opportunity of being heard to the petitioner and then will take a considered decision on the issue as to whether the petitioner is in occupation of any government property/puramboke property, etc. and then may deal with the matter, in accordance with law. The process in this regard should be duly completed, without much delay, preferably within a period of two months from the date of production of a certified copy of this judgment.

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

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Sd/-

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ALEXANDER THOMAS JUDGE

vgd/11.02.19

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE NOTICE ISSUED TO THE ADJACENT LAND OWNER DATED 09.01.2018

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EXHIBIT P2 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 23.01.2018

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EXHIBIT P3 TRUE COPY OF THE NOTICE ISSUED TO REMADEVI EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 28.03.2018 FILED BY GIRIJADEVI AMMA BEFORE THE TALUK SURVEYOR DATED 28.03.2018

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EXHIBIT P5 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER ALONG WITH ORDER ADJACENT OWNERS BEFORE THE 3RD RESPONDENT

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EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 06.06.2018 EXHIBIT P7 A TRUE OF THE NOTICE DATED 16.09.2018 ISSUED TO SASIDHARAN UNNITHAN EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 24.10.2018 OF THE 3RD RESPONDENT

Sreenadevi Kunjamma G. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sreenadevi Kunjamma G. v. State of Kerala

Case brief

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What did the court decide?

What the court decided

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