Dismissed

Saju Thuruthikunnel v. the District Collector

Kerala HC28 Sept 2021WP(C)/25021/2018

Case brief

AI extract

What is this about?

A public interest writ petition sought mandamus against the District Collector to initiate steps under the Kerala Land Conservancy Act against a college principal and manager alleged to be encroaching on government land. The court held that the college trust enjoys leasehold rights and assignments are pending, rendering the eviction plea devoid of merit.

What did the court decide?

The writ petition under Art.226 against the District Collector and others challenging alleged encroachment was dismissed.

Saju Thuruthikunnel Vs the District Collector — Land Acquisition | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 28^TH DAY OF SEPTEMBER 2021 / 6TH ASWINA, 1943

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WP(C) NO. 25021 OF 2018

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PETITIONER/S:

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SAJU THURUTHIKUNNEL, AGED 46, S/O.THANKAPPAN,THURUTHIKUNNEL HOUSE,VADAYAMBADI.P.O,KUNNATHUNADU TALUK,ERNAKULAM DISTRICT,PIN-682308.

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BY ADV SRI.SHAJI THANKAPPAN

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RESPONDENT/S:

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1 THE DISTRICT COLLECTOR ERNAKULAM DISTRICT,CIVIL STATION,KAKKANAD,ERNAKULAM DISTRICT,PIN-682030.

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2 SECRETARY, POOTHRIKA GRAMA PANCHAYATH,POOTHRIKKA.P.O,KUNNATHUNADU TALUK,ERNAKULAM DISTRICT,PIN-682308.

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3 VILLAGE OFFICER, AIKKARANAD SOUTH VILLAGE,KUNNATHUNADU TALUK,ERNAKULAM DISTRICT,PIN-682308.

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4 TAHSILDAR, KUNNATHUNADU TALUK,TALUK OFFICE,PERUMBAVOOR,ERNAKULAM DISTRICT,PIN-683542.

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5 TALUK SURVEYOR, KUNNATHUNADU TALUK,TALUK OFFICE,PERUMBAVOOR,ERNAKULAM DISTRICT,PIN-683542.

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6 STATE OF KERALA REPRESENTED BY SECRETARY TO REVENUE DEPARTMENT,SECRETARIAT,THIRUVANANTHAPURAM,PIN-695001.

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7 PRINCIPAL, ST.PETER'S COLLEGE,KOLENCHERY,ERNAKULAM DISTRICT,PIN-

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8 MANAGER, ST.PETER'S COLLEGE,KOLENCHERY,ERNAKULAM DISTRICT,PIN682311. R1 & R3 TO R6 BY SRI. V.TEKCHAND, SR.GP R2 BY SRI. SAJEEV KUMAR K.GOPAL R7 & R8 BY SRI.JOBY JACOB PULIKEKUDY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

S.MANIKUMAR, CJ.

Instant public interest writ petition is filed for a writ of mandamus directing the 1^st respondent, i.e., the District Collector, Ernakulam District, to initiate appropriate steps against respondents 7 and 8 viz; the Principal and Manager of St.Peter's College, Kolenchery, Ernakulam under the Kerala Land Conservancy Act, 1957.

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Petitioner has also sought for a writ of mandamus directing the District Collector, Ernakulam District, to dispose of Exhibit P5 representation dated 22.11.2017, within a time frame.

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Short facts leading to the writ petition are as hereunder:

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The petitioner is a resident of Aikkaranadu South Village of Kunnathunadu Taluk. There is a Government land having an extent of 43.80 Ares, comprised in Block No.48 in Re- Sruvey No.11/10 of Aikkaranadu South Village, adjacent to the ground of St.Peter's College,Kolenchery. When respondents 7 & 8 tried to encroach into the said property, the petitioner has submitted Ext.P1 application dated 21.11.2015, to the 5^th respondent Taluk Surveyor, Kunnathunadu Taluk to measure and demarcate the above said

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property.

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As per Ext. P1 application, the 5^th respondent measured the property and prepared Ext.P3 report dated 27.07.2016, and Ext.P4 sketch. Thereafter, the petitioner submitted Ext.P5 representation dated 22.11.2017 to the 1^st respondent, to evict respondents 7 & 8 from the above said Government land of 43.80 Ares, under the Kerala land Conservancy Act, 1957. Inspite of receipt of Ext.P5 application, the 1^st respondent has not taken any steps to evict the respondents 7 & 8 from the Government land. Aggrieved by the same, the petitioner has approached this Court by filing this writ petition.

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Respondents 7 & 8 have filed a detailed counter affidavit stating that the property is under lease and the encroachment alleged is denied. Placing reliance on a decision of this Court in W.P.(C).No.30883 of 2015 dated 28.01.2019, respondents 7 & 8 have further contended that, they, in the above writ petition, have sought for a writ of certiorari, to quash Exhibit P9 therein, dated 23.09.2015, issued by the President, Poothrikka Grama Panchayath, Poothrikka, Ernakulam, the 4^th respondent in W.P.(C).No.30883/2015, and this Court, after considering the rival contentions, permitted the petitioner therein to make an application for assignment of land. Pursuant to the same, an application Exhibit R8 dated 20.09.2021 has been filed before the Government and that the said application is pending with the Government.

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Relevant portions of the counter affidavit are extracted hereunder:

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“4. The College constructed a playground in the property belonging to the Trust including the kuthakapattam property. Thereafter, the entire property is surrounded by compound wall and gate. There is no access to the public to the College Ground as the property is in the absolute possession of the Trust.

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5. The respondent has been paying kuthakapattam every year ever since 1964. The latest Tax paid for the period from 2020-21 dated 13.05.2020. True photocopy of Tax receipt along with english translation are produced herewith and marked as Exhibit R8(b).

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6. The petitioner has approached this Hon'ble Court with unclean hands and by suppressing material facts. The 2^nd respondent Panchayath passed a resolution in the year 2015 illegally to open the land in the possession of the petitioner alleging for the sports activities in the Panchayath. St. Peter's College Trust approached this Hon'ble Court with W.P.(C).No.30883/2015 challenging the said resolution as the Panchayath has no right over the said property. This Hon'ble Court on 28.01.2019 passed a judgment finding that if the leasehold right is enjoyed by the St. Peter's College Trust, then a decision is to be taken by the Revenue Authority in respect of the same. It was also observed that no proceedings shall be initiated against the leasehold property otherwise than in accordance with law.

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It was further observed if the lease is being enjoyed by the petitioner then Panchayath did not have any authority to take a decision to keep the property in question open, since it is a puramboke land remaining with St.Peter's College. The true photocopy of judgment dated 28.01.2019 in W.P. (C).No.30883/2015 is produced herewith and marked as Exhibit R8(c).

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7. St. Peter's College Trust filed an application for assignment of the above said land on 23.01.2019 when the W.P.(C).No.30883/2015 was pending. The true photocopy of application dated 23.01.2019 is produced herewith and marked as Exhibit R8(d). As per Ext.R8(c) judgment, this Hon'ble Court directed the District Collector to consider the application for assignment. Thereafter, on 10.10.2019 the Tahsildar, Kunnathunadu submitted a report on the basis of the application for assignment, reporting that the property of 43.80 Ares is lying as St. Peter's College ground under Thandaper No.611 in old Survey No.600/1/4 and Resurvey No.11/10. It was also reported that as the property is lying along with other properties without any sub division, it is not possible to measure out the actual extent of the property in the possession of the Trust. The Government is yet to take a decision in Ext.R8(d) application as per the direction given by in Ext.R8(c) judgment. The petitioner has suppressed all these facts.

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8. There was an attempt to dismantle the compound wall surrounding this property by few locals. This Hon'be Court also passed a judgment granting police protection in respect of this property. The above writ petition has been

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filed in collusion with the Panchayath. The said property is in the absolute possession of the St. Peter's College Trust and the same is occupied lawfully. Therefore, the petitioner has absolutely no right to question the same.

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9. It is respectfully submitted that as the respondents 7 and * are in occupation of the property under lease it is not unauthorised occupation. Therefore, respondents 3 and 4 are not liable to take any action on the application submitted by the respondents. Writ petition is filed with malafide intention and without any bonafides. Therefore, the above writ petition is devoid of any merit and therefore liable to be dismissed with costs.”

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In the light of the above, respondents have submitted that there is no encroachment warranting action.

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Heard learned Counsel for the parties and perused the material available on record.

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Exhibit R8(b)-2, receipt of payment of lease amount, is extracted hereunder:

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After considering the rival submissions in W.P.(C).No.30883 of 2015, writ court ordered thus:

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“4. I have heard learned counsel for petitioner, learned Government Pleader as well as learned counsel appearing for 3rd respondent and perused the pleadings and documents on record.

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5. The subject issue raised by the petitioner basically revolves around Ext.P9 minutes of the Panchayat Committee dated 23.9.2015, whereby it was decided to keep open an extent of 1.08 Acres of property held by the petitioner enabling the people residing in the Panchayat area and sportsmen to utilise the ground. The paramount contention advanced by learned counsel for petitioner is that, Panchayat is not entitled or empowered to pass a resolution in that manner since the property is belonging to the State Government.

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6. On the other hand learned counsel appearing for the 3rd respondent submitted that, the Panchayat in accordance with the provisions of the Kerala Panchayat Raj Act is duty bound to protect the property of the Government and therefore, since the kuthakapattam lease was not extended after 2011, the property in question remains as puramboke land, which is liable to be protected by the Panchayat. It is also submitted that, the Panchayat has submitted Ext.R3(e) resolution taken by the Panchayat along with an application before the State Government for assigning the said land in question

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in favour of the Grama Panchayat.

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7. Petitioner has produced Ext.P10 additional documents along with I.A.No.1/2019, which is a receipt showing payment of an amount of Rs.265/- in LC-189/14 towards the land for the period 2017-2018 and submits that, kuthakapattam lease was being renewed from time to time and still the petitioner is enjoying the lease benefits. On the other hand learned counsel for 3rd respondent submitted that, it is not discernible from Ext.P10 as to whether payment was effected against the property in question. Learned counsel for petitioner has also produced a communication dated 23.1.2019 addressed to the Government of Kerala seeking to assign the said plot for the beneficial enjoyment of the petitioner in accordance with the Government norms.

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8. Having evaluated the rival submissions made across the Bar, I am of the considered opinion that, the writ petition can be disposed of with appropriate directions. Since the Panchayat as well as the petitioner submitted applications before the State Government for assignment of land, the said applications are to be considered by the Government in accordance with law. However, petitioner has a case that, petitioner is still enjoying the leasehold rights. If the leasehold right is enjoyed by the petitioner as of now, then a decision is to be taken by the Revenue Authority in respect of the same. I make it clear that, if the lease is being enjoyed by the petitioner, no proceedings shall be initiated against the leasehold property otherwise than in accordance with

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law. So also if the lease is being enjoyed by the petitioner, then the 3rd respondent Panchayat did not have any authority to take a decision as per Ext.P9 to keep the property in question open, since it is a puramboke land remaining with the petitioner under a lease. Therefore, the action contemplated as per Ext.P9 decision taken by the Panchayat Committee shall be kept in abeyance till a decision is taken in respect of alleged leasehold right enjoyed by the petitioner, by the District Collector, Ernakulam at the earliest possible time and at any rate within three months from the date of receipt of a copy of this judgment. Thereafter, if the property in question is free of any encumbrance, applications submitted by the 2nd respondent as well as the petitioner shall be considered by the State Government for assignment, at the earliest possible time.”

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In the light of the facts extracted supra, it is clear that respondents 7 & 8 are enjoying lease-hold rights. Besides, the writ court has also permitted to take a decision on the assignment of the subject land, stated to be pending with the Government. Exhibit R8 (d) dated 23.01.2019, is the application submitted by St.Peter's College Trust, Kolenchery, Kerala, to the Additional Chief Secretary (Revenue), Government of Kerala, Thiruvananthapuram, which is extracted hereunder:

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The Addl. Chief Secretary (Revenue) Date: 23.01.2019

Govt of Kerala

Thiruvananthapuram

Sir,

Sub: Assignment of Purampokku Land to St.Peter's College Trust, Kolenchery - reg

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Ref: (1) Sketch of the said plot

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(2) Tax receipt of Kuttakapattom

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An extent of 1.30 acres in (Sy.No.600/1 old Survey Number) Block 48 Survey Number 11/10 in Aikaranadu South Village, Kunnathunadu Taluk, Muvattupuzha Sub Division, Ernakulam District was given on lease to St. Peter's College Trust, Kolenchery as part of the play ground. The said land has been in the uninterrupted possession of the College Trust for the past 54 years from 1^st July 1964. We have been paying Kuttakapattom till last year without fail.

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We have also constructed a Stadium for the benefit of the students of the collge. The purampokku land lies within the playing area.

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We request you to kindly assign the said plot to us for beneficial enjoyments as per Government norms.

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In the light of the above facts and counter affidavit with supporting

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documents filed by respondents 7 & 8, contention of the petitioner that there

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is encroachment to 43.80 Ares of Government land, as of now, cannot be ignored.

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Giving due consideration to the facts on hand, we are of the view that the writ petition is devoid of merits and the same is dismissed.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

SHAJI P.CHALY

JUDGE

28.09.2021

WP(C) NO. 25021 OF 2018

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APPENDIX OF WP(C) 25021/2018

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PETITIONER EXHIBITS

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EXHIBIT	P1	TRUE PHOTOCOPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT DATED 21.11.2015
EXHIBIT	P1(A)	TRUE ENGLISH TRANSLATION OF EXT.P1 APPLICATION
EXHIBIT	P2	A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 11.12.2015 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT
EXHIBIT	P2(A)	TRUE ENGLISH TRANSLATION OF EXT.P2 REPRESENTATION
EXHIBIT	3	A TRUE PHOTOCOPY OF THE REPORT DATED 27.7.2016 PREPARED BY THE 5TH RESPONDENT
EXHIBIT	P3(A)	TRUE ENGLISH TRANSLATION OF EXT.P3 REPRESENTATION
EXHIBIT	P4	A TRUE PHOTOCOPY OF THE SKETCH DATED 27.7.2016 PREPARED BY THE 5TH RESPONDENT
EXHIBIT	P4(A)	TRUE ENGLISH TRANSLATION OF EXT.PR SKETCH
EXHIBIT	P5	A TRUE PHOTO COPY OF THE REPRESENTATION DATED 22.11.2017 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT
EXHIBIT	P5(A)	TRUE ENGLISH TRANSLATION OF EXT.P5 REPRESENTATION
EXHIBIT	P6	A TRUE PHOTOCOPY OF THE ACKNOWLEDGEMENT CARD SHOWING THE RECEIPT OF P5 APPLICATION BY THE 1ST RESPONDENT.

Saju Thuruthikunnel v. the District Collector

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Saju Thuruthikunnel v. the District Collector

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