Quashed

Laila @ Marykutty Godfrie, v. Executive Engineer, Department of Roads

Kerala HC13 Feb 2019WP(C)/4236/2019

Case brief

AI extract

What is this about?

The Court quashed an illegal notice issued under emergency rules without prior survey for alleged encroachment. The Petitioner secured lawful possession via sale deed and mutation. The Court directed the Respondent to conduct a proper survey with notice before initiating eviction and to complete the process within three months.

What did the court decide?

Impugned notice set aside; Respondent directed to conduct survey with notice, provide report, grant opportunity of hearing, and pass appropriate orders within 3 months.

Laila @ Marykutty Godfrie, Vs Executive Engineer, Department… — 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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WEDNESDAY, THE 13TH DAY OF FEBRUARY 2019 / 24TH MAGHA, 1940

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WP(C).No. 4236 of 2019

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PETITIONER:

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LAILA @ MARYKUTTY GODFRIE, AGED 53 YEARS, W/O.ABDUL LATHEEF, SHAN HOUSE, PATHADI, KOTTARAKKARA, KOLLAM DISTRICT.

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BY ADV. SMT.G.VIDYA

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RESPONDENTS:

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1 EXECUTIVE ENGINEER, DEPARTMENT OF ROADS, OFFICE OF THE EXECUTIVE ENGINEER, KOLLAM, PIN-691001.

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2 ASSISTANT EXECUTIVE ENGINEER, DEPARTMENT OF PUBLIC WORKS AND ROADS, OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER, KOTTARAKKARA, KOLLAM, PIN-691506.

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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 13.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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W.P.(C) No.4236 of 2019

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Dated this the 13^th day of February, 2019

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J U D G M E N T

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The prayers in this Writ Petition (Civil) are as follows: "

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i. Issue a writ of certiorari or any other appropriate writ or order quashing Ext.P3 notice.

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ii. Issue a writ of mandamus or any other appropriate writ or order directing the respondents to stay all further proceedings of Ext.P3 notice.

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iii. Issue a writ of mandamus or any other appropriate writ or order directing the respondent abstrain from further proceedings of Ext.P3 notice. iv. Any other appropriate writ, order or direction as this Hon'ble Court may please to grant in the circumstances of the case."

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Heard Sri.Vidhya G., learned counsel appearing for the

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

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The case of the petitioner is that, she is in lawful possession and occupation only in respect of properties which are within her title and possession and that she has not encroached into even one square inch of government property/puramboke property. She has obtained the subject property on the basis of Ext.P-1 registered sale deed 2846 of 2013 dated 26.9.2013 of Principal SRO, Kottarakkara for an extent of land coming to 1.82 ares comprised in Sy.No.528/9/2 in Block No.2 of Neduvathoor

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..3..

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W.P.(C).No.4236/2019

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Village, Kottarakkara Taluk, Kollam Revenue district. The said property covered by Ext.P-1 have been duly mutated in her favour and basic land tax has also been accepted from her by the competent revenue officials concerned. Further that the petitioner has constructed a residential building in the said property covered by Ext.P-1 and the said property is bounded on all sides with a compound wall. The petitioner has produced photographs of the said building showing the compound wall, etc as Ext.P-2.

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The complaint of the petitioner is that now the 2^nd respondent Assistant Executive Engineer, PWD has issued the impugned Ext.P-3 notice dated 21.11.2018 alleging that the petitioner has encroached into government property/PWD Road and has directed her eviction. But no survey and measurement of the subject property has been conducted by the respondents with due prior notice to the petitioner to ascertain as to whether she is in occupation of land only within her title and possession or whether she had actually encroached into government property/puramboke/PWD Road, and that therefore the impugned proceedings at Ext.P-3 is illegal and ultra vires, etc.

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A reading of the impugned Ext.P-3 notice dated

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W.P.(C).No.4236/2019

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21.11.2018 would make it clear that the 2^nd respondent has invoked the emergency power under Rule 13A of the Kerala Land Conservancy Rules after dispensing with the prior notice to the petitioner purportedly in compliance with the directions issued by the Apex Court in WP(C).No.318/2002 dated 9.7.2002. This Court has dealt with a similar case and it is seen that the said order dated 9.7.2002 rendered by the Apex Court in WP(C).No.318/2002 is in respect of alleged encroachments made by religious institutions, etc, into public property. Going by the facts and circumstances of the case, more particularly the petitioner's case that she is in lawful occupation and possession of only in respect of private property within her lawful title and possession, it is highly illegal on the part of the 2^nd respondent to have issued an order in the nature of Ext.P-3, whereby he has straightaway come to the conclusion that the petitioner has encroached into government property and that too without conducting survey and measurement of subject property with prior notice to the petitioner so as to ascertain the crucial and elementary fact of the matter as to whether or not she has encroached into any

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government/puramboke property/PWD Road, etc. Such a proceedings should have been issued only after prior survey and

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..5..

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W.P.(C).No.4236/2019

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measurement of subject property with prior notice to the petitioner and not by invoking the emergency power under Rule 13A by dispensing with prior notice to the petitioner. Accordingly it is ordered that the impugned Ext.P-3 is illegal and ultra vires and the same will stand set aside.

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However it is ordered and made clear that in case, the 2^nd respondent has objective materials to come to the prima facie view that necessary proceedings should be initiated against the petitioner, then he should ensure that the survey and measurement of the subject property of the petitioner covered by Ext.P-1 deed is got done by the Taluk Surveyor or any other competent Surveyor concerned with due prior notice to the petitioner and the Surveyor should conduct the survey after examining the title deed of the petitioner, old survey records, re-survey records, etc in order to ascertain the crucial fact whether or not the petitioner is in occupation only in respect of land which is within her lawful title and possession or whether she has actually encroached into any government/puramboke property/PWD Road, etc. The Surveyor will give a report in that regard with a survey sketch. Thereafter it shall be ensured that a copy of the said survey report along with

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W.P.(C).No.4236/2019

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survey sketch is given to the petitioner in advance.

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In case the report of the survey and survey sketch discloses that the petitioner has encroached into any government/puramboke property, then the 2^nd respondent may issue a show cause notice to the petitioner directing her to show cause as to why steps should not be taken to evict her to remove such encroachment. Thereupon the petitioner should be given reasonable opportunity to give her written objection/submissions in the matter. After consideration of the representation by the petitioner, and based on the report and survey sketch of the surveyor, the 2^nd respondent may pass orders in accordance with law on the issue as to the alleged encroachment, if any, made by the petitioner. The entire process in this regard should be duly completed by the 2^nd respondent without much delay preferably within a period of 3 months from the date of production of a certified copy of this judgment.

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This Court would now pause for a moment and would remind the respondents that quite a few cases have come to notice of this Court wherein directions in this nature have been in the judgments in the writ proceedings concerned and thereafter the

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W.P.(C).No.4236/2019

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officials concerned more particularly the Engineers of the PWD has violated those directions with immunity which has led to the institution of Contempt of Court proceedings. It is made clear and ordered that if the respondents or any other officials concerned, violate the directions in this judgment, they may do so only at their peril and this Court will have to take a strict view in such cases.

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

Sd/-

ALEXANDER THOMAS,

JUDGE

MMG

W.P.(C).No.4236/2019

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APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1 THE TRUE COPY OF THE SALE DEED NO.2846 OF 2013, DATED 26.09.2013.

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EXHIBIT P2 THE TRUE PHOTOS OF THE RESIDENTIAL BUILDING WITH COMPOUND WALL OF THE PETITIONERS PROPERTY.

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EXHIBIT P3 THE TRUE COPY OF THE NOTICE DATED 21.11.18.

Laila @ Marykutty Godfrie, v. Executive Engineer, Department of Roads

Case brief

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Laila @ Marykutty Godfrie, v. Executive Engineer, Department of Roads

Case brief

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