Quashed

Dr. Benny Augustine v. the State of Kerala

Kerala HC16 Nov 2020WP(C)/13425/2020

Case brief

AI extract

What is this about?

The High Court held that a notice under Section 406 of the Kerala Municipality Act is legally unsustainable for encroachment on puramboke land. The Court quashed the notice and directed the Municipality to proceed under the Kerala Land Conservancy Act, 1957.

What did the court decide?

Notice issued under Section 406 of the Kerala Municipality Act was set aside; liberty granted to Municipality to proceed under Kerala Land Conservancy Act within three months.

Dr. Benny Augustine Vs the State of Kerala — Property and Title | Kerala HC (2020)

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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 A.MUHAMED MUSTAQUE

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MONDAY, THE 16TH DAY OF NOVEMBER 2020 / 25TH KARTHIKA, 1942

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WP(C).No.27858 OF 2017(F)

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PETITIONER:

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DILEEP, S/O BABY, AGED 39 YEARS, MULLASSERIL HOUSE, OLAMATTAM KARA, THODUPUZHA VILLAGE, IDUKKI DIST.

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BY ADV. SRI.M.V.RAJENDRAN NAIR

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RESPONDENTS:

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1 THODUPUZHA MUNICIPALITY, REP. BY ITS SECRETARY, MUNICIPAL OFFICE, THODUPUZHA P.O, IDUKKI DIST. PIN-685 584.

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ADDL. DR.BENNY AUGUSTINE

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2 S/O KURIAKOSE AUGUSTINE,MAPLAL HOUSE, OTTAMATTOM KARA, THODUPUZHA-685584 IS IMPLEADED AS ADDL R2 AS PER ORDR DTD 23/8/2017 IN IA NO 13749/2017

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R1 BY SRI.UNNIKRISHNAN V.ALAPPATT, SC, THODUPUZHA MUNICIPALITY R1 BY ADV. SRI.G.SREEKUMAR CHELUR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.11.2020, ALONG WITH WP(C).13425/2020(C), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C). Nos.27858 OF 2017(F)& 13425 OF 2020(C)

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..2..

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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 A.MUHAMED MUSTAQUE

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MONDAY, THE 16TH DAY OF NOVEMBER 2020 / 25TH KARTHIKA, 1942

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WP(C).No.13425 OF 2020(C)

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PETITIONER:

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DR. BENNY AUGUSTINE, AGED 55 YEARS, S/O.KURIYAKOSE AUGUSTINE, MAMPLAL HOUSE, OLAMATTOMKARA, THODUPUZHA P.O., IDUKKI DISTRICT-685 584.

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BY ADV. SRI.G.SREEKUMAR (CHELUR)

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RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT-695 001.

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2 THE THODUPUZHA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, THODUPUZHA P.O., IDUKKI DISTRICT-685 584.

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3 THE DISTRICT COLLECTOR, OFFICE OF THE DISTRICT COLLECTOR, PAINAVU P.O., IDUKKI DISTRICT-685 603.

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4 DILEEP, AGED 42 YEARS S/O.BABY, MULLASSERIL HOUSE, OLAMATTOM KARA, THODUPUZHA P.O., IDUKKI DISTRIC-685 584.

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5 THE SUB INSPECTOR OF POLICE,

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W.P.(C). Nos.27858 OF 2017(F)& 13425 OF 2020(C)

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..3..

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THODUPUZHA POLICE STATION, THODUPUZHA P.O., IDUKKI DISTRICT-685584.

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R2 BY SRI.UNNIKRISHNAN V.ALAPPATT, SC, THODUPUZHA MUNICIPALITY

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R4 BY ADV. SRI.M.V.RAJENDRAN NAIR

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SRGP S GOPINATHAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.11.2020, ALONG WITH WP(C).27858/2017(F), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C). Nos.27858 OF 2017(F)& 13425 OF 2020(C)

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..4..

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JUDGMENT

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[ WP(C).27858/2017, WP(C).13425/2020 ]

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Dated this the 16th day of November 2020

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These writ petitions are related to the alleged encroachment made

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by one Dileep, the petitioner in W.P (C)No.27858/2017. Sri. Dileep approached this Court challenging Ext.P3 notice issued by the Municipality under Sec.406 of the Kerala Municipality Act, 1994.

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Dr. Benny Augustine – a neighbour of Sri. Dileep filed W.P. (C) No. 13425/2020 for the removal of encroachment. He alleges that

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Sri. Dileep encroached upon the road puramboke and also erected a flag post in the puramboke land.

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There are two encroachments allegedly taken place in the puramboke land. One is the construction of house by Dileep extending to the puramboke land and the other is the erection of the flag post.

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As far as the flag post is concerned, it appears that, it was erected by the Indian Communist Party, Thodupuzha Taluk Committee. They are not party to these proceedings. It is appropriate that the

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W.P.(C). Nos.27858 OF 2017(F)& 13425 OF 2020(C)

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..5..

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Thodupuzha Municipality with whom the land is vested, initiate separate action to remove such encroachment made by the political party on the puramboke land. That shall be done without any delay, at any rate, within a period of three months, in accordance with the Kerala Land Conservancy Act, 1957(the Act for short).

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Needless to say, the Municipality shall issue notice to the Indian Communist Party, Thodupuzha Taluk Committee and the proceedings shall be strictly in accordance with the Act.

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As far as the notice issued to Sri. Dileep which is challenged

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in his writ petition, I am of the view that the notice is legally unsustainable. If the puramboke land has been encroached, the Secretary of the Municipality can only invoke proceedings under the Kerala Land Conservancy Act not under the Kerala Municipality Act. It is only after passing the final orders under the Kerala Land Conservancy Act, the encroacher can be evicted. If any construction within the land legally owned, of course, the Municipality can initiate proceedings under Sec. 406 of the Kerala Municipality Act. However, in the counter affidavit as well as in the writ petition filed by Dr. Benny Augustine it is stated that

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W.P.(C). Nos.27858 OF 2017(F)& 13425 OF 2020(C)

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..6..

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Sri. Dileep has encroached upon the puramboke land and constructed a residential building. Therefore, the removal of encroachment can be only in accordance with the Kerala Land Conservancy Act. Accordingly, Ext.P3 notice, challenged in the writ petition filed by Dileep is set aside. The Municipality shall proceed in accordance with the Land Conservancy Act, if the Municipality is of the view that the puramboke land has been encroached by Sri. Dileep by extending his residential building.

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Needful shall be done by the Municipality strictly following

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the proceedings under the Land Conservancy Act within a period of three months, if it is of the view that such encroachment has taken place.

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Notice in W.P.(C) No. 27858/2017 is quashed with liberty as above.

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These writ petitions are disposed of as above.

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Sd/-

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A.MUHAMED MUSTAQUE

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JUDGE

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W.P.(C). Nos.27858 OF 2017(F)& 13425 OF 2020(C)

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..7..

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APPENDIX OF WP(C) 27858/2017

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 THE TRUE COPY OF THE REPRESENTATION DATED 4/4/2017 EXHIBIT P2 THE TRUE COPY OF THE HIGH COURT ORDER DATED 30/11/2016 EXHIBIT P3 THE TRUE COPY OF THE NOTICE OF THOSUPUZHA MUNICIPALITY DATED 22/7/2017

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RESPONDENTS EXHIBITS:

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EXHIBIT R2(A)	A TRUE BY THE	COPY OF THE PHOTOGRAPH PRODUCED SECOND RESPONDENT DATED NIL.
EXHIBIT R2(B)	A TRUE PREPAR SURVEY	COPY OF THE SURVEY SKETCH ED AT THE INSTANCE OF THE TALUK OR, THODUPUZHA DATED 7.2.2017.
EXHIBIT R2(C)	A TRUE THODUP 1.8.20	COPY OF THE ORDER PASSED BY THE UZHA MUNICIPALITY DATED 16.
EXHIBIT R2(D)	A TRUE BY THE 17.3.2	COPY OF THE FIRST ORDER PASSED THODUPUZHA MUNICIPALITY DATED 017.
EXHIBIT R2(E)	A TRUE THE TH 22.7.2	COPY OF THE NOTICE ISSUED BY ODUPUZHA MUNICIPALITY DATED 017.
EXHIBIT R2(F)	A TRUE THE TH 1.9.20	COPY OF THE NOTICE ISSUED BY ODUPUZHA MUNICIPALITY DATED 16.
EXHIBIT R2(G)	A TRUE INITIA MUNICI	COPY OF THE PROCEEDINGS TED BY THE THODUPUZHA PALITY DATED 3.6.2017.

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W.P.(C). Nos.27858 OF 2017(F)& 13425 OF 2020(C)

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..8..

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APPENDIX OF WP(C) 13425/2020

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PETITIONER'S EXHIBITS:

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EXHIBIT	P1 A TRUE COPY OF THE JUDGMENT DELIVERED IN WP(C)NO.27705 OF 2016 DATED 30.11.2016 BY THIS HON'BLE COURT.
EXHIBIT	P2 A TRUE COPY OF THE SKETCH PREPARED BY THE TALUK OFFICE, THODUPUZHA DATED 07.02.2017.
EXHIBIT	P3 A TRUE COPY OF THE REPORT OF THE ASSISTANT TAHSILDAR, DATED 13.02.2017.
EXHIBIT	P4 A TRUE COPY OF THE STATEMENT FILED ON BEHALF OF THE MUNICIPALITY DATED 16.08.2017.
EXHIBIT	P5 A TRUE COPY OF THE WP(C)NO.27858 OF 2017 FILED BY THE FOURTH RESPONDENT, DATED 21.08.2017.
EXHIBIT	P6 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER HEREIN IN WP(C)NO.27858 OF 2017 DATED 30.10.2017.
EXHIBIT	P7 A TRUE COPY OF THE NOTICE ISSUED DATED 03.06.2017 BY THE SECOND RESPONDENT.
EXHIBIT	P8 A TRUE COPY OF THE NOTICE ISSUED DATED 21.06.2017.
EXHIBIT	P9 A TRUE COPY OF THE PHOTOGRAPHS PRODUCED BY THE PETITIONER.

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RESPONDENTS EXHIBITS

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ANNEXURE 1 TRUE COPY OF THE NOTICE DATED 13.5.2020 ISSUED TO THE SECRETARY, C.P.I (THODUPUZHA AREA).

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W.P.(C). Nos.27858 OF 2017(F)& 13425 OF 2020(C)

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..9..

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ANNEXURE II TRUE COPY OF THE REPLY NOTICE DATED 19.6.2020 SENT BY THE SECRETARY, C.P.I (THODUPUZHA AREA).

Dr. Benny Augustine v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Dr. Benny Augustine v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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