IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 30TH NOVEMBER 2010 / 9TH AGRAHAYANA 1932 WP(C).No. 15120 of 2006(Y) -------------------------- PETITIONER(S) :- ----------------------- V.P.JOSEPH, S/O.PAULOSE,VADASSERY HOUSE, RAMESWARAM VILLAGE, KADEBHAGAM, PALLURUTHY, KOCHI. BY ADV. SRI.SABU GEORGE RESPONDENT(S) :- ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, SECRETARIATE, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, ERNAKULAM. 3. THE REVENUE DIVISIONAL OFFICER, FORT KOCHI. 4. THE TAHSILDAR, KOCHI TALUK OFFICE, KOCHI-1. 5. KUNJUMOL JAYASENAN, W/O.JAYASENAN, PADANNAYIL HOUSE, KADABHAGOM, PALLURUTHY, KOCHI. 6. JAYASENAN, PADANNAYIL HOUSE, KADEBHAGOM, PALLURUTHY, KOCHI. 7. CORPORATION OF KOCHI, REP. BY ITS SECRETARY, CORPORATION OFFICE, ERNAKULAM. ADV. SRI.PRAVEEN K. JOY FOR R7 SRI.A.X.VARGHESE FOR R5 & 6 GOVERNMENT PLEADER MR.DILEEP MOHAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt WP(C).No. 15120 of 2006 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the sale deed No.1743/1995 of S.R.O Kochi dated 24.3.1995. Ext.P2 :- Copy of the decree of the Munsiff Court, Kochi in O.S.No.67/1999 dated 28.10.2000. Ext.P3 :- Copy of the judgment of the Munsiff Court, Kochi in O.S.No.67/1999 dated 28.10.2000. Ext.P4 :- Copy of the award of the Lok Adalath dated 27.11.2004. Ext.P5 :- Copy of the order of the 3rd respondent dated 12.8.2005. Ext.P6 :- Copy of the letter issued by the petitioner to the 1st respondent dated 22.2.2006. Ext.P7 :- Copy of the revision filed by the 5th respondent before the 1st respondent. Ext.P8 :- Copy of the judgment of this Honourable Court in W.P.(C)No.10982/2006 dated 7.4.2006. Ext.P9 :- Copy of the G.O.(M.S)No.78/06/R.D. Of the 1st respondent dated 17.3.2006. Respondent's Exhibits :- Ext.R5(a) :- Copy of the statement B1.2021/99. Ext.R5(b) :- Copy of the certificate of Mayor, Corporation of Kochi dated 21.3.01. Ext.R5(c) :- Copy of the certificate of the Councilor, Corporation of Kochi dated 21.11.02. Ext.R5(d) :- Copy of the receipt issued in favour of petitioner by the Village Officer, in remittance to Rs.101/- as property assessment tax. //True Copy// P.A. to Judge ANTONY DOMINIC, J. ----------------------------------------- W.P(C) NO.15120 OF 2006 --------------------------------------------------------- Dated this the 30th day of November, 2010 JUDGMENT Petitioner submits that on the western side of his property situated in Survey No.2149/2 of Rameswaram Village, the property in Survey No.1166 of the aforesaid village is situated which is a Kayal Puramboke. It is stated that respondents 5 and 6 encroached into the said Kayal Puramboke, and started living there. The petitioner made complaints to the authorities which was of no avail. 2. Finally, O.S.No.67/1999 was filed by the petitioner seeking to restrain the respondents from trespassing into the petitioner's property and to evict them from the area under their occupation. The suit was decreed by Ext.P3 judgment, granting injunction sought for by the petitioner. However, in so far as the prayer for eviction is concerned, it was held that since the petitioner had title over the property in the occupation of the property concerned, he cannot seek their eviction. It was also clarified that it is for the W.P(C) NO.15120 OF 2006 2 authorities concerned to take action in the matter. 3. Petitioner submits that despite the judgment, authorities did not take any action and that finally he moved the Lok Adalat in the matter. Lok Adalath passed Ext.P4 award directing that action be initiated for eviction of the respondents. Based on Ext.P4 order, the Tahsildar issued proceedings against which the respondents 5 and 6 filing an appeal to the Revenue Divisional Officer. The Revenue Divisional Officer by Ext.P5 order confirmed the proceedings of the Tahsildar. Respondents 5 and 6 filed a revision to the Government which was finally disposed of by Ext.P9. 4. In Ext.P9, the Government held that the revision petitioner is a fisher women who had contracted an intercaste marriage. It is also found that she was in occupation of the land for more than 19 years and that the Corporation authorities had certified that she was residing in the land for more than 10 years. Taking note of the above facts and on sympathetic considerations though the W.P(C) NO.15120 OF 2006 3 Government held that the 5th respondent was ineligible for assignment of the land, Government ordered that the 5th respondent need not be evicted from the area occupied by them. It is, challenging Ext.P9, this writ petition is filed. 5. Although the counsel for the petitioner contented that the factual findings in Ext.P9 are incorrect and that the order was passed without hearing him. Having regard to the peculiar facts, which admittedly weighed with the Government while passing Ext.P9 order, I am not satisfied that this is a fit case for exercising its powers under Article 226 of the Constitution of India. 6. Admittedly, the land is that of the Government, which is now in the occupation of respondents 5 and 6 and the only dispute is regarding the length of occupation. It is also a fact that the 5th respondent is a fisherwomen and had contracted intercaste marriage. These sympathetic facts, weighed with the Government and it is an exercise of its discretionary powers that the impugned order was passed. W.P(C) NO.15120 OF 2006 4 7. However, there is substances in the contention of the petitioner that respondents 5 and 6 cannot reclaim any more area in the land in their occupation. It is made clear that if the petitioner has a complaint that any portion is reclaimed by them in future, it will be open to them to bring it to the notice of the 7th respondent, who shall can take appropriate action in accordance with law. ANTONY DOMINIC, JUDGE dmb