IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 OP.No. 7138 of 1995(Y) --------------------------------- PETITIONER(S): ------------------------ K.K.KRISHNAN, SON OF KORUNNI, KUMBALATH HOUSE, THAIKKATTUKARA, ALUVA VILLAGE, ALUVA TALUK. BY ADV. MR.T.K.VENUGOPALAN RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP.BY THE CHIEF SECRETARY. GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. ASSISTANT EXECUTIVE ENGINEER, ALUVA, OFFICE OF THE ASST. EXECUTIVE ENGINEER, P.W.D. (ROADS), ALUVA. 3. THE SUB COLLECTOR , FORT COCHIN. 4. THE DISTRICT COLLECTOR, ERNAKULAM. BY GOVERNMENT PLEADER MR.T.K.VIPIN DAS THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.12581/1995 IN OP. NO.7138/1995 CLOSED O1/06/2009 SD/- V.K.MOHANAN, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE RECEIPT DT. 9.5.73 ISSUED BY THE KALAMASSERY PANCHAYAT. P2:- COPY OF THE LICENCE ISSUED BY THE KALAMASSERY PANCHAYAT, DT. 14.5.87. P3:- COPY OF THE LICENCE ISSUED BY THE KALAMASSERY PANCHAYATH, DT. 16.11.89. P4:- COPY OF THE RECEIPT DT. 13.3.91 ISSUED BY THE KALAMASSERY MUNICIPALITY. P5:- COPY OF THE DT. DT. 11.3.91. P6:- COPY OF THE BILL DT. 6.1.89 ISSUED BY KALAMASSERY PANCHAYATH. P7:- COPY OF THE DT. DT. 15.6.87. P8:- COPY OF THE RECEIPT DT. 16.3.88 ISSUED BY THE KALAMASSERY MUNICIPALITY. P9:- COPY OF THE DO. DT. 15.3.91 OF DO. P10:- COPY OF THE NOTICE DT. 17.12.92 ISSUED BY THE KALAMASSERY MUNICIPALITY. P11:- COPY OF THE RECEIPT DT. 26.4.93 ISSUED BY DO. P12:- COPY OF THE RECEIPT DT. 7.4.94 ISSUED BY DO. P13:- COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DT. 2.8.93. P14:- COPY OF THE ORDER DT. 12.5.94 PASSED BY THE 3RD RESPONDENT. P15:- COPY OF THE ORDER DT. 10.3.95 PASSED BY THE 4TH RESPONDENT. TRUE COPY P.A. TO JUDGE TSS V.K.MOHANAN, J. --------------------------------------------- O.P.No. 7138 of 1995 --------------------------------------------- Dated this the 1st day of June, 2009 J U D G M E N T Petitioner is conducting a petty bunk shop in the puramboke land in Sy.No.1182/2A of Thrikkakara Village in which he conducts trade in cigarettes, pan,fruits,soda etc. According to the petitioner, the shop is not causing any obstruction to the pedestrians or vehicular traffic in the Kalamassery Panchayath. As it was then, the Kalamassery Panchayath had assigned a number KP.II-127 to the bunk shop. According to the petitioner,the only source of livelihood of the petitioner and his family is the income derived from such trade which was conducting in the bunk shop for the last several years. Though the soda manufacturing unit had been shifted from the bunk shop, originally the Panchayath issued licence connected with the bunk as evidenced by Exts.P1 and P2. It is also the case of the petitioner that the Kalamassery Panchayath has issued Ext.P3 licence on 16.11.1989 to sell, stock and exhibit food for sale by conducting a 'C' class shop. Ext.P4 is the receipt of licence fee for the bunk shop in the year 1991-92 issued from the Municipality. Ext.P6 produced by the petitioner is a notice issued by the Panchayath showing the amounts payable by the petitioner as OP NO.7138 of 1995 :-2-: building tax. Exts.P7 and P8 are also receipts with respect to the payment of building tax. It is also the case of the petitioner that to the above bunk shop, electric connection was given. 2. It is also averred in the writ petition that the Kalamassery Municipality issued a notice prohibiting all kinds of trades in public roads in push carts and permanent bunks and stating that anyone acting in contravention of the said notice was liable to be proceeded against and the articles would be removed by the Municipality. According to the petitioner, he had approached the civil court and preferred O.S.No.1470 of 1990 before the Munsiff's Court and obtained an interim order of temporary injunction and the said order is made absolute and the order was in force at the time of filing this writ petition. 3. According to the petitioner, thereafter, Ext.P13 notice was issued under Section 11(2) of the Kerala Land Conservancy Act by the second respondent. By Ext.P13 notice, the petitioner preferred O.P.No.10628 of 1993 before this Court which was disposed of directing the petitioner to file an appeal before the appropriate authority. Thus, according to the petitioner, he preferred an appeal which was dismissed as per Ext.P14 order OP NO.7138 of 1995 :-3-: by the third respondent. Against this, the petitioner approached this Court by filing O.P.No.16995 of 1994 challenging Ext.P14 order, which was also disposed of by this Court on 6.12.1994, relegating the petitioner to approach the revisional authority. Thus, Ext.P15 order is issued by the fourth respondent on the revision preferred by the petitioner against Ext.P14 order. The District Collector dismissed the revision petition filed by the petitioner. Thus, the petitioner now approached this Court challenging Exts.P13,P14 and P15 proceedings of the respondents. On the basis of the above materials, the learned counsel submits that the petitioner was conducting the bunk shop for the last 27 years with sufficient authority as borne out from the records produced by him and further submits that the impugned orders are issued without proper application of mind and Ext.P13 itself is without authority. 4. Second respondent has filed a detailed counter affidavit wherein it is stated that the petitioner has occupied a spot at a place having very important location at the junction of the FACT Kalamassery road and NH 47 where the vehicular and pedestrian traffic is very high and the removal of the bunk shop OP NO.7138 of 1995 :-4-: from this location is absolutely essential to provide travelling facility to the general public which is a prime objective of the Public Works Department. According to the respondents, the petitioner has occupied the side of the PWD road from Kalamassery to Eloor (FACT Kalamassery road) which is vested with the PWD authority who is competent to evict the encroachment from the road side. It is also submitted that the appellate as well as revisional authority has considered the entire case of the petitioner and finally, confirmed the action taken by the second respondent and the petitioner has miserably failed to substantiate any of his right over the property in question and therefore, the writ petition is liable to be dismissed. 5. I have considered the rival contentions and perused the materials available on record. It is true that the petitioner was in possession and conducting the bunk shop in the property for the last several years and to enable the trade and business, the local authorities have issued licence and collected licence fee from the petitioner. The crucial question to be considered is as to whether Ext.P13 notice issued by the second respondent is illegal or not and whether the petitioner has got any right over the OP NO.7138 of 1995 :-5-: property in question. Admittedly, no document is produced by the petitioner to substantiate his right over the property. The petitioner has admitted in the writ petition that the bunk shop is situating on the road puramboke and the local authority, viz., the Kalamassery Panchayath/Municipality though issued licence etc. for the said trade, in the absence of any material to show the right of the petitioner over the property, it cannot be said that Ext.P13 is illegal or without any authority. The other statutory authorities, by Exts.P14 and P15 proceedings, rejected the contention and claim of the petitioner. It is also relevant to note that before filing the present writ petition, the petitioner has already approached the civil court and according to him, the civil court has already issued an order of temporary injunction against the eviction which would show that the petitioner has already pursued his civil remedy by invoking the jurisdiction of the civil court. That be so, I am of the view that this writ petition can be disposed of without entering into the merits of the contentions raised by the petitioner in this writ petition and directing the petitioner to take appropriate further steps and to pursue the civil remedy which he had already resorted. OP NO.7138 of 1995 :-6-: In the result, this writ petition is disposed of directing the petitioner to pursue his civil remedy which he had already resorted if he wants to agitate the issue further. V.K.Mohanan, Judge MBS/ OP NO.7138 of 1995 :-7-: V.K.MOHANAN, J. -------------------------------------------- O.P.NO. 7138 OF 1995 -------------------------------------------- J U D G M E N T DATED: 1-6-2009 OP NO.7138 of 1995 :-8-: