Dismissed

Syamala Devi v. State of Kerala

Kerala HC22 May 2023WP(C)/3998/2021

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ petition challenging orders under the Kerala Land Conservancy Act regarding alleged encroachment on government land. Deeming factual issues unsuitable for summary disposal, the court directed petitioners to seek relief in the pending civil suit while keeping validity of interim directions subject to civil court findings.

What did the court decide?

Writ petition dismissed; petitioners directed to seek necessary orders from the civil court regarding their rights in the pending suit.

Syamala Devi Vs State of Kerala — Land Acquisition | Kerala HC (2023)

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W.P.(C) No.3998/2021

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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 T.R.RAVI

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MONDAY, THE 22 N D DAY OF MAY 2023 / 1ST JYAISHTA, 1945

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WP(C) NO. 3998 OF 2021

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PETITIONERS:

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1 SYAMALA DEVI AGED 72 YEARS, D/O.SAROJINI AMMA, KUMARI BHAVAN, VARKALA, THIRUVANANTHAPURAM.

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2 S.K.JALAJAMONI AGED 69, D/O.SAROJINI AMMA, SOUPARNIKA, VARKALA, THIRUVANANTHAPURAM-695 141.

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BY ADVS. SRI.G.S.KRISHNAN KARTHA SRI.LIJIN THAMBAN

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING, MUSEUM P.O., THIRUVANANTHAPURAM - 695 002.

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3 DISTRICT COLLECTOR, THIRUVANANTHAPURAM, COLLECTORATE, KUDAPPANAKUNNU P.O., THIRUVANANTHAPURAM - 695 043.

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4 THE SUB COLLECTOR, OFFICE OF THE SUB COLLECTOR, COLLECTORATE, KUDAPPANAKUNNU P.O., THIRUVANANTHAPURAM - 695 043.

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5 THE TAHSILDAR (LAND RECORDS), VARKALA P.O., THIRUVANANTHAPURAM - 695 141.

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6 VILLAGE OFFICER,

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W.P.(C) No.3998/2021

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VILLAGE OFFICE, VARKALA, VARKALA P.O., THIRUVANANTHAPURAM - 695 141.

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7 AYUB.E., ROSE MOUNT, THOTTAKKAD(PO), KALLAMBALAM, THIRUVANANTHAPURAM - 695 605.

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ADDL.R8. SUO MOTU IMPLEADED

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ADDL.R8 THE TALUK SURVEYOR VARKALA TALUK OFFICE, VARKALA, KERALA [ADDITIONAL R8 IS SUO MOTU IMPLEADED AS PER ORDER DATED 23.09.2021 IN WP(C) 3998/2021]

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BY ADVS.

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SMT.DEEPA V., GOVERNMENT PLEADER SRI.M.A.ABDUL HAKHIM

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SRI.JOSEPH GEORGE (KANNAMPUZHA)

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.07.2022, THE COURT ON 22.05.2023 DELIVERED THE FOLLOWING:

W.P.(C) No.3998/2021

T.R. RAVI, J.

W.P.(C)No.3998 of 2021

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Dated this the 22 nd day of May, 2023

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JUDGMENT

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The 1^st petitioner purchased 22 cents of property in old Sy No.605 and 5½ cents in Sy.No.602 of Varkala Village as per sale deed No.5321/1984. Ext.P2 is the survey plan obtained from the Central Survey Office, Thiruvananthapuram which shows the location and lie of Sy.Nos.604 to 614,665 and 666. Ext.P3 is the settlement register. As per Ext.P3, Sy.No.605 has an extent of 22 cents, Sy.No.609 which is puramboke, has an extent of 24 cents and Sy.No.613 has an extent of 14 cents. At the time of re-survey, the petitioners' property in old survey number 605 was assigned ReSy.No.151/39. The property in the southern side of the petitioners' property, Sy.No.606 is assigned Re-Sy.No.38 and property in Sy.Nos.607 and 608 assigned Re.Sy.Nos.36 and 37. The properties in Sy.No.605 and thodu poramboke in the eastern side of Sy.Nos.605, 606, 607 and 608 appear to be regular in shape as per Ext.P2. The PWD road leading to Varkala Maidanam and Varkala temple is on the southern side of Sy.Nos.606 and 608. According to the petitioners,

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W.P.(C) No.3998/2021

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there is a way through the eastern side of the properties in Sy.Nos.606 and 608, which leads to the property of the petitioners in Sy.No.605 and the petitioners’ father had put up a gate at the southeastern end of the property in Sy.No.605, for entry into the property from the PWD road on the south. In proceedings initiated under the Kerala Land Conservancy Act (hereinafter referred to as the Act), the petitioners were directed to remove the encroachment made into the puramboke. The writ petition has been filed challenging the proceedings initiated under the Kerala Land Conservancy Act, and the directions issued to the petitioners to remove the gate which according to the official respondents has been put up by encroaching into Government land. This Court is thus called upon to decide a factual issue regarding encroachment.

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Detailed counter-affidavits have been filed by the 7^th respondent and the official respondents disputing the contentions raised by the petitioners. Even though there are allegations in the writ petition that the orders have been issued by the official respondents after receiving illegal gratification from the 7^th respondent, no person has been impleaded in a personal capacity. The said contentions are hence only to be rejected. The counter affidavit of the 5^th respondent shows that even after affording

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W.P.(C) No.3998/2021

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sufficient opportunity, the petitioners did not produce any document to show their right over 1.78 Ares of vazhi puramboke which is found to have been encroached. The 3^rd respondent has also filed a statement wherein it is stated that the thodu puramboke is seen to have been encroached upon by the petitioner. The petitioner has produced additional documents which include the plaint in a suit said to have been filed in the vacation court. Curiously, the sketch attached to the plaint does not even show the puramboke road, the th pres ence of which is admitted in the writ petition. The 7 respondent alone is made a party to the suit and the prayer for an order of injunction against the 7^th respondent. None of the official respondents are made parties to the suit and the fact remains that the finding in proceedings under the Act is that the petitioner has encroached upon puramboke road. This Court had issued directions to the official respondents to conduct a measurement of the property and ascertain the factual aspect. Even during such exercise, it has been found that the petitioner has encroached. There is also a finding that the 7^th respondent has also encroached into a portion of the puramboke. On 5.4.2022, this Court had observed that all that is required is to issue consequential directions to remove the obstructions and encroachment. However, the case was adjourned

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W.P.(C) No.3998/2021

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directing the respondents to ensure that the gate in question will either be removed or kept open at all times. The jurisdictional Station House Officer was directed to confirm compliance of the above direction. The petitioners’ conduct does not inspire confidence. There are several factual issues involved and the same cannot be determined in proceedings under Article 226 of the Constitution of India. Since the petitioners have already filed a suit for injunction, they may seek necessary relief from the competent civil court either in the pending suit or in a comprehensive suit, if so advised.

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The writ petition fails and is dismissed, without prejudice to the aforesaid right of the petitioners to approach the competent civil court. It is made clear that the directions issued by this Court on 5.4.2022 shall remain in force, till the issue relating to encroachment is finally decided by the civil court.

Sd/-

T.R.RAVI, JUDGE

dsn

The last sentence of judgment dated 22.05.2023 in W.P. (C)No.3998/2021 is deleted and substituted by the following as per order dated 22.02.2024 in R.P.No.584/2023:

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“It is made clear that directions issued by this Court

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on 05.04.2022 shall remain in force for a period of

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W.P.(C) No.3998/2021

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two months, by which time the petitioners may seek orders from the trial court in the pending suit (Ext.P21) regarding their rights. It is open to the 7^th respondent to raise the question of maintainability of the suit, since according to the 7^th respondent, the suit as filed will not lie.”

Sd/Joint Registrar

W.P.(C) No.3998/2021

APPENDIX OF WP(C) 3998/2021

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PETITIONERS' EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE SALE DEED NO.5321/1984 EXECUTED IN FAVOUR OF 1ST PETITIONER.
EXHIBIT P2	TRUE COPY OF THE SURVEY PLAN.
EXHIBIT P3	TRUE COPY OF THE SETTLEMENT REGISTER PREPARED PURSUANT TO THE SAID ROYAL PROCLAMATION OF 1061 ME.
EXHIBIT P4	TRUE COPY OF THE RE-SURVEY PLAN.
EXHIBIT P5	TRUE COPY OF THE BASIC TAX RECEIPT DATED 16.12.2014 ISSUED TO THE 1ST PETITIONER FROM VARKALA VILLAGE OFFICE
EXHIBIT P6	TRUE COPY OF THE DOCUMENT DATED 21.8.2017 EXECUTED IN FAVOUR OF 2ND PETITIONER BY 1ST PETITIONER.
EXHIBIT P7	TRUE COPY OF THE SALE DEED DATED 21.02.2008 MANIPULATED BY 7TH RESPONDENT.
EXHIBIT P8	TRUE COPY OF THE BASIC TAX REGISTER.
EXHIBIT P9	TRUE COPY OF THE NOTICE DATED 14.5.2018 ISSUED BY 5TH RESPONDENT.
EXHIBIT P10	TRUE COPY OF THE ORDER DATED 1.2.2019 ISSUED BY 5TH RESPONDENT.
EXHIBIT P11	TRUE COPY OF THE REPORT OBTAINED UNDER RIGHT TO INFORMATION ACT PREPARED BY 5TH RESPONDENT.
EXHIBIT P12	TRUE COPY OF THE PROCEEDINGS DATED 14.11.2019 OF THE 4TH RESPONDENT.
EXHIBIT P13	TRUE COPY OF THE ORDER DATED 7.12.2019 OF THE 2ND RESPONDENT.
EXHIBIT P14	TRUE COPY OF THE PROCEEDINGS DATED 30.1.2021 OF 3RD RESPONDENT.
EXHIBIT P15	PHOTOGRAPH OF THE STEPS THROUGH THE EASTERN SIDE OF THE PROPERTY OF 7TH RESPONDENT'S

W.P.(C) No.3998/2021

PROPERTY

EXHIBIT	P16 PHOTOGRAPH SHOWING THAT THE P.W.D. ROAD IS ON THE SOUTH OF BAVANA AMMA'S PROPERTY AND THE WAY THROUGH SURVEY NOS.608 AND 606.
EXHIBIT	P17 PHOTOGRAPH SHOWING THE SOUTHERN AND WESTERN COMPOUND WALL ENCLOSING SURVEY NO.609.
EXHIBIT	P18 PHOTOGRAPH SHOWING HIS GATE ON THE SIDE OF THE PRIVATE WAY.
EXHIBIT	P19 PHOTOGRAPH OF THE GATE TAKEN FROM THE PROPERTY OF PETITIONER TOWARDS SOUGH WILL SHOW THE GATE OF THIS PETITIONER AND THE WAY GOING TOWARDS SOUTH UPTO THE P.W.D. ROAD AFTER PASSING THROUGH THE EASTERN SIDE OF THE GATE OF SREEDHARAN PILLAI.
EXHIBIT	P20 PHOTOGRAPH SHOWING THE VIEW OF THE P.W.D. ROAD AND THE COMPOUND OF ASSISTANT DEVASWOM COMMISSIONER'S OFFICE ENCLOSING THE PURAMBOKE IN SURVEY NO.609 ON ITS SOUTHERN PORTION.
EXHIBIT	P21 TRUE COPY OF THE PLAINT IN O.S.NO. /2021 ON THE FILE OF THE DISTRICT COURT (VACATION COURT), THIRUVANANTHAPURAM (TO BE FILED BEFORE THE HON'BLE MUNSIFF'S COURT, VARKALA) DATED NIL
EXHIBIT	P22 TRUE COPY OF THE INJUNCTION ORDER DATED 7.5.2021 IN I.A.NO.2/2021 IN O.S.NO. /2021 OF THE 11 ADDITIONAL DISTRICT COURT (VACATION COURT), THIRUVANANTHAPURAM
EXHIBIT	P23 TRUE COPY OF THE COMMISSION REPORT DATED 6.5.2021 IN I.A.NO.3/2021 IN O.S.NO. /2021 ON THE FILE OF II ADDITIONAL DISTRICT COURT (VACATION COURT), THIRUVANANTHAPURAM
EXHIBIT	P24 TRUE COPY OF THE OBJECTION TO RE-SURVEY PLAN DATED 23.3.2021 FILED BY 1ST PETITIONER
RESPONDE	NTS' EXHIBITS
EXHIBIT	R7(A) A PHOTOSTAT COPY OF THE SURVEY MAP OF VARKALA VILLAGE WITH RESPECT TO SY.NOS.605 AND OTHERS

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W.P.(C) No.3998/2021

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	DATED 15.05.2009
EXHIBIT R7(B)	A PHOTOSTAT COPY OF THE SAID RESURVEY SKETCH BLOCK NO.151 DATED 24.11.2018 OF THE 6TH RESPONDENT MARKING THE POSITION OF THE GATE FIXED BY THE PETITIONERS
EXHIBIT R7(C)	A PHOTOSTAT COPY OF THE LOCATION SKETCH DATED
	24.11.2018 OF PUBLIC ROAD IN SY.NO.45 PREPARED BY THE 6TH RESPONDENT MARKING THE
	POSITION OF THE GATE FIXED BY THE PETITIONERS
EXHIBIT R5(A)	TRUE COPY OF THE FMB OF THE ROAD PURAMBOKE IN
	BLOCK NO.151 OF RESURVEY NO.45 OF VARKALA VILLAGE
EXHIBIT R5(B)	TRUE COPY OF THE SITE PLAN OF THE LAND IN RESURVEY NO.45
ANNEXURE R5(A)	TRUE COPY OF THE SKETCHES OF THE PLAN

Syamala Devi v. State of Kerala

Case brief

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Syamala Devi v. State of Kerala

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