Allowed

Reni Biju v. the Kottayam Muncipality

Kerala HC17 Jun 2022WP(C)/8195/2015

Case brief

AI extract

What is this about?

In a writ petition, the High Court quashed notices issued by the Kottayam Municipality and revenue authorities regarding alleged encroachment on the petitioner's property. The Court directed authorities to conduct a detailed measurement of the property in the presence of the petitioner within three months before taking further action on demolition.

What did the court decide?

Proceedings under Ext.P1 and P3 were quashed. Directions issued to conduct measurement of property in the presence of the petitioner within three months.

Reni Biju Vs the Kottayam Muncipality — Property and Title | Kerala HC (2022)

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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 SHAJI P.CHALY

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FRIDAY, THE 17^TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944

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WP(C) NO. 8195 OF 2015

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PETITIONER/S:

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RENI BIJU AGED 42 YEARS WIFE OF LATE BIJU JOHN, RESIDING AT NADUVATHU HOUSE, MALLUSSERY, KOTTAYAM, PERUMBAIKKADU VILLAGE,KOTTAYAM TALUK, KOTTAYAM PIN-686 028.

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BY ADV SRI.ABRAHAM GEORGE JACOB

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RESPONDENT/S:

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1 THE KOTTAYAM MUNCIPALITY KOTTAYAM PIN-686 001 REPRESENTED BY ITS SECRETARY.

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2 THE SECRETARY KOTTAYAM MUNICIPALITY KOTTAYAM PIN-686 001.

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3 THE ASSISTANT ENGINEER KUKARANALLOOR REGIONAL OFFICE OF THE KOTTAYAM MUNICIPALITY, KUMARANALLOR, KOTTAYAM, PIN 686 016.

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4 THE ADDITIIONAL TAHASILDAR TALUK OFFICE KOTTAYAM DISTRICT PIN-686 001

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5 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF KERALA IN THE DEPARTMENT OF LOCAL SELF GOVERNMENT, PUBLIC OFFICE BUILDING,MUSEUM PO, THIRUVANANTHAPURAM 695 033.

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BY ADVS.

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SRI.PHILIP J.VETTICKATTU

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SRI.SIBY CHENAPPADY, SC, KOTTAYAM MUNICIPALIT

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R3 TO 5 – SRI.ARAVIND.V.MATHEW, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.06.2022,

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THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No. 8195/2015

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SHAJI P. CHALY, J.

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---------------------------------------------------------

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W.P.(C). No. 8195 of 2015

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--------------------------------------------------------Dated this the 17^th day of June, 2022.

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JUDGMENT

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The petitioner has filed this writ petition seeking the following reliefs:

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Issue a writ in the nature of certiorari or other appropriate writ, direction or order calling for the records leading to the issuance of Exts.P1 and P3 issued by the 3^rd respondent and quashing the same.

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Issue a writ in the nature of mandamus or other appropriate writ, direction or order directing the respondents to conduct detailed measurement of property of the petitioner comprised in resurvey No. 361/11 of Block No. 26 in Mallusserry Kara of Perumbaikkadu Village in Kottayam Taluk and the adjoining road with notice to the petitioner before taking a decision regarding any encroachment committed by the petitioner.

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Issue a writ in the nature of mandamus or other appropriate writ, direction or order directing the respondents not to demolish the compound wall of the property of the petitioner comprised in resurvey No. 361/11 of Block No. 26 in Mallusserry Kara of Perumbaikkadu Village in Kottayam Taluk.

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W.P.(C) No. 8195/2015

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The basic contention advanced by the petitioner is that the petitioner and her daughters are residing in a house constructed in 9.390 cents of land situated in resurvey No. 361/11 of Block No. 26 of Perumbaikkadu Village, Kottayam Taluk, Kottayam District, within the limits of the Kottayam Municipality, the first respondent.

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The case of the petitioner is that a compound wall was constructed about 45 years ago. However, the Assistant Engineer of the Regional Office of the Kottayam Municipality, the third respondent, has issued a notice stating that the wall is liable to be demolished as it has been constructed encroaching into the Municipal road. According to the petitioner, the said aspect mentioned in the notice is quite improper as the wall is very old.

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Accordingly, the petitioner submitted an objection before the Assistant Engineer of the Municipality and requested to measure out

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the property before taking any steps to demolish the wall. But, neither the Municipal authorities nor the revenue authorities visited the property and conducted any inspection. Therefore, according to the petitioner, if the well is demolished without conducting proper

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W.P.(C) No. 8195/2015

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measurement, it will cause serious prejudice and will be a threat to the security of the house of the petitioner.

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Kottayam Municipality and its Secretary, respondent Nos. 1 and 2, have filed a detailed counter affidavit refuting the allegations and contending as follows:

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“2. The above writ petition is filed for reliefs inter alia to quash Exts.P1 and P3. Exts.P1 and P3 are notices isused to the petitioner. Ext. P1 notice was issued in pursuance of a letter issued by the Additional Tahsildar, Kottayam, whereby it was informed that the petitioner has unauthorisedly constructed a compound wall encroaching into a public road which is comprised in Sy. Nos. 17,20,21 of Block No.26 of the Perumbaikadu Village. It is submitted that the Tahsildar was given directions by the Kottayam Revenue Divisional Officer to the effect that steps may be taken against the alleged encroachments. The sketch prepared by the Taluk Surveyor showing the encroached area was also forwarded to this respondent's office. It was in pursuance of such steps by the authorities that this respondent has issued notices to the petitioner. It is submitted that in pursuance of the letters of the Additional Tahsildar, the Overseer of the Municipality has conducted an inspection and found encroachment at different points of the compound wall. Still later, a notice was issued to

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W.P.(C) No. 8195/2015

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the petitioner on 21.01.2015. Since the petitioner was residing in the property, where the unauthorised construction is effected, the notice was issued to the petitioner. It is submitted that in reply to the notice, on 21.01.2015, the petitioner has stated that she was ready to demolish and to remove the projected portions to the road and that she requested for the Form 13 prepared by the Taluk Surveyor. Still later, a second notice was issued to the petitioner along with a sketch prepared by the Taluk Surveyor. It is submitted that the petitioner thereafter submitted a reply stating that she has not encroached into a public road and that the road was 45 years back. In such circumstances, the steps in pursuance of the directions of the RDO and the Additional Tahsildar was for the time being not pursued with. It is submitted that steps were taken by the respondent in pursuance of the directions of the Tahsildar and also the Revenue Divisional Office r. As long as the directions and the orders of the Revenue Divisional Officer dated 30.05.2014 and the consequential directions of the Additional Tahsildar are there, the petitioner is bound to comply with the same. This respondent has taken steps on the directions of the statutory authorities.”

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I have heard the learned counsel for the petitioner Sri.

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Abraham George Jacob and the learned Standing Counsel for the Kottayam Municipality, Sri. Siby Chenappady and the learned

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Government Pleader Sri. Aravind V. Mathew, and perused the

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W.P.(C) No. 8195/2015 : 6 :

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pleadings and materials on record.

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The gravamen of the arguments advanced by the learned counsel for the petitioner is that the petitioner is basically aggrieved by the measurement carried out by the Tahsildar without the presence

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of the petitioner and according to the petitioner, there is no encroachment into any public property and the subject property is in possession of the predecessor in title of the petitioner for the past more than 45 years.

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In view of the contentions raised and the admission made by the Municipality that the measurement was not carried out in the presence of the petitioner, I think, it is only appropriate that Exts.P1 and P3 notices issued by the Secretary of the Kottayam Municipality are quashed and a direction is issued to carry out the measurement of the property in the presence of the petitioner within a time period.

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Accordingly, this writ petition is allowed by quashing Exts.P1 and P3 notices dated 21.01.2015 and 26.02.2015 respectively. Consequently, there will be a direction to the Secretary of the Municipality as well as the revenue authorities to carry out

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W.P.(C) No. 8195/2015

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measurement of the property in accordance with law, after providing an opportunity of participation to the petitioner and any other affected parties, at the earliest and at any rate within three months form the date of receipt of a copy of this judgment. The parties will be guided by the decision taken accordingly.

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sd/- SHAJI P. CHALY, JUDGE.

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W.P.(C) No. 8195/2015

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APPENDIX OF WP(C) 8195/2015

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PETITIONER'S EXHIBITS: EXT.P1 EXHIBIT P1:TRUE COPY OF THE LETTER NO. KPW25849/14 DATED 21.01.2015 ISSUED BY THE 3RD RESPONDENT. EXT.P2 EXHIBIT P2: TRUE COPY OF THE REPLY DATED 19.2.2015 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT EXT.P3 EXHIBIT P3: TRUE COPY OF THE NOTICE DATED 26.2.2015 ISSUED BY THE 3RD RESPONDENT AND ATTACHED SKETCH EXT.P4 EXHIBIT P4: TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 9.3.2015

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RESPONDENTS' EXHIBITS: NIL

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/True Copy/

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PS To Judge.

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Reni Biju v. the Kottayam Muncipality

Case brief

What is this about?

What did the court decide?

Reni Biju v. the Kottayam Muncipality

Case brief

What is this about?

What did the court decide?

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