Disposed

Marakkar v. Asst. Engineer, PWD Roads Section

Kerala HC8 Apr 2024WP(C)/23346/2018

Case brief

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What is this about?

Single-judge High Court of Kerala disposed of a writ petition challenging an encroachment notice by directing the respondent to survey the property and treat the notice as a show-cause notice.

What did the court decide?

Ext.P4 notice treated as notice to show cause; petitioner to appear on 22.4.2024; 2nd respondent to depute surveyor with 7 days notice; petitioner to object to report within 7 days; respondents free t

Marakkar Vs Asst. Engineer, PWD Roads Section — Property and Title | Kerala HC (2024)

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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 EASWARAN S.

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MONDAY, THE 8^TH DAY OF APRIL 2024 / 19TH CHAITHRA, 1946 WP(C) NO. 23346 OF 2018

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PETITIONER/S:

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MARAKKAR, S/O MOHAMMED, ACHARIKUNNATH HOUSE, IRUMPAKASSERY,THIRUMITTACODE, PATTAMBI TALUK, PALAKKAD DISTRICT. BY ADV SRI.P.JAYARAM

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RESPONDENT/S:

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1 ASST. ENGINEER, PWD ROADS SECTION TRITHALA 679534.

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2 ASST.EXECUTIVE ENGINEER PWD ROADS SECTION,SCHORANUR 679121.

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3 STATE OF KERALA REPRESENTED BY THE SECRETARY DEPARTMENT OF PUBLIC WORKS, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM 695001.

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SRI.BIMAL.K.NATH, SR.G.P.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P. (C) No.23346 of 2018

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EASWARAN S. , J.

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W.P. (C) No.23346 of 2018

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Dated this the 8th day of April 2024

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JUDGMENT

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The present writ petition is filed challenging Ext.P4 notice dated 9.7.2018 issued by the Assistant Executive Engineer wherein, the petitioner has been put on notice that, on 12.7.2018, there would be an inspection conducted by the authorities in relation to an allegation of encroachment made by

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the petitioner and it is also stated that, if, on the date of inspection, if it is found that the petitioner has encroached upon the property, appropriate steps for removing the encroachment will be taken.

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The facts in the writ petition discloses that the petitioner approached this Court by filing Writ Petition No.11944 of 2018 which resulted in Ext.P1 judgment directing the authorities to consider the objections of the petitioner after providing opportunity of hearing. Again, the petitioner

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W.P. (C) No.23346 of 2018 3

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approached this Court in W.P.(C) No.19442 of 2018, which resulted in Ext.P2 judgment dated 21.6.2018. In Ext.P2, it was specifically found that, as per the minutes of the meeting dated 8.6.2018, the petitioner was required to appear, but he did not appear on the date for the enquiry. It is categorically found that the petitioner did not co-operate with the enquiry but nevertheless this Court found that the issue did not attain finality and therefore, this Court directed that further coercive measures against the petitioner be kept in abeyance till the matter is finalised.

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Now, by Ext.P4, the position is reiterated where, on 6.7.2018, when the hearing was fixed at 3 p.m., the petitioner appeared and did not however sign the minutes of the meeting by which certain decisions were taken.

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When the matter is taken up for consideration today the parties were at variance regarding the facts stated in Ext.P4. In view of the serious dispute in relation to the passing of Ext.P4 notice, and the statement contained therein, this Court is not in a position to decide the issue as to whether who is at fault.

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Be that as it may this Court deems it appropriate to dispose

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W.P. (C) No.23346 of 2018

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of the writ petition by issuing the following directions:

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a. Ext.P4 notice shall be treated as a notice to show cause.

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b. The petitioner shall appear before the 2^nd respondent on 22.4.2024 and shall file his objection, if any, to Ext.P4 notice, on the same day itself along with a certified copy of the judgment along with a copy of the writ petition.

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c. On receipt of such objection, the 2^nd respondent shall depute a Surveyor to find out the truthfulness of the allegations against the petitioner regarding the encroachment, shall fix appropriate date for the survey and intimate the petitioner on the same day itself.

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d. The Surveyor shall, after giving prior notice of 7 days' to the petitioner, visit and survey the property and further submit a report before the 2^nd respondent.

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e. The 2^nd respondent, on such inspection and finalisation of the report, shall forward a copy of

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W.P. (C) No.23346 of 2018

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the same to the petitioner.

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f. The petitioner shall be at liberty to file his objection, if any, to the said report within a period of seven days thereafter. If any such objection is filed, the 2^nd respondent shall take further action in the report after hearing the petitioner.

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g. The petitioner shall co-operate with survey and in the event of non co-operation, the respondents

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are free to proceed in accordance with law.

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Writ petition is disposed of.

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Sd/-

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EASWARAN S. JUDGE

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W.P. (C) No.23346 of 2018

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APPENDIX OF WP(C) 23346/2018

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PETITIONER EXHIBITS :

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EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 5.4.2018 IN WRIT PETITION(C) NO.11944/2018, HIGH COURT OF KERALA. EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 21.6.2018 IN WRIT PETITION(C) NO.19422/2018 HIGH COURT OF KERALA. EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS OF THE MEETING DATED 6.7.2018 HELD AT THE OFFICE OF 2ND RESPONDENT. EXHIBIT P4 TRUE COPY OF THE LETTER DATED 9.7.2018 ISSUED TO THE PETITIONER BY 2ND RESPONDENT.

Marakkar v. Asst. Engineer, PWD Roads Section

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Marakkar v. Asst. Engineer, PWD Roads Section

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