IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 WP(C).No. 34955 of 2007(J) -------------------------------------- PETITIONER: -------------------- 1. NOOHU KANNU, S/O. IBRAHIM PILLAI, AGED 66, PRESIDENT, AMBALATHARA THOTTAM RESIDENTS ASSOCIATION, REG.NO.1145/96, AMBALATHARA, THIRUVANANTHAPURAM. 2. KARUNAKARAN NAIR, S/O. DAMODARAN, AGED 49, SECRETARY, AMBALATHARA THOTTAM RESIDENTS ASSOCIATION, REG.NO.1145/96, AMBALATHARA, THIRUVANANTHAPURAM. BY ADV. SRI.B.SATHIQ SRI.C.ANIRUDHAN RESPONDENT: ---------------------- THE SECRETARY, THIRUVANANTHAPURAM CORPORATION, THIRUVANANTHAPURAM. BY ADV. SRI.N.NANDAKUMARA MENON (SR.) SC FOR R1 SRI.P.K.MANOJKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.34955/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE REGISTRATION CERTIFICATE NO.T-1145/96 DT. 27.11.96. EXT.P2:- COPY OF THE JUDGMENT IN WPC. 8629/06 DT. 23.3.06. EXT.P3:- COPY OF THE LETTER DT. 3.8.06. EXT.P4:- COPY OF THE ORDER DT. 6.6.07. EXT.P5:- COPY OF THE JUDGMENT DT. 2.11.07. /TRUE COPY/ P.S. TO JUDGE tss. ANTONY DOMINIC, J. ------------------------------------ W.P.(C) 34955 of 2007 ------------------------------------- Dated: MAY 27, 2008 JUDGMENT The challenge in this writ petition is against Ext.P5. Ext.P5 is an order passed by the Tribunal for Local Self Government Institutions in Appeal No.284/2007 filed by the petitioners. 2. Briefly noted, the facts of the case are that the petitioner is in possession of 2.5 cents of bund puramboke land vested in the Irrigation Department and situated in Sy.Nos.763/1 and 765/1 of Manacaud Village of Thiruvananthapuram Taluk. According to the petitioners, in the aforesaid land they have put up a shed where the office of the 1st petitioner is functioning. Petitioners claim that they had applied for assignment of the said land and as there was delay on the part of the authorities in considering the assignment application, the petitioners approached this court and by Ext.P2 judgment, the application made by them for assignment was ordered to be considered. It is stated that accordingly the application was considered and the land was found to be not one WP(C) 34955 of 2007 2 assignable by Ext.P3 order. 3. Subsequently Ext.P4 order was issued by the Corporation requiring the petitioner to demolish the shed and against that order, petitioners submit that they had filed Appeal No.284/07 before the Tribunal and that appeal was allowed as per Ext.P5. By Ext.P5, Ext.P4 notice issued under sec.406 of the Municipalities Act was set aside, but, however, with a direction that the Corporation should initiate action against the petitioner for eviction under sec.376 of the Municipalities Act. It is aggrieved by the direction to initiate action under Sec.376 of the Municipalities Act that this writ petition has been filed challenging Ext.P5 to the extent the aforesaid direction is issued. 4. The limited ground on which Ext.P5 to the extent it is challenged is that to invoke the provision under sec.376, the land in question should be vested in the Corporation. It is stated that it is clear from the averments in this writ petition itself that the land in question is a bund puramboke vested in the Government of Kerala and not in the Corporation. It is also argued that even in the statement filed by the Corporation, there is no positive averment WP(C) 34955 of 2007 3 that the land in question is vested in the Corporation. 5. On the other hand, the learned standing counsel appearing on behalf of the respondent canvassed for the position that the land is vested in the Corporation and that the Corporation is in control over the same. Therefore, the only question that calls for determination is the correctness of the direction of the Tribunal to the extent it has directed the Corporation to initiate action under sec.376 of the Municipalities Act. 6. Admittedly sec.376 of the Municipalities Act can have relevance only where any person, without previous sanction of the Municipality, occupies any land belonging to the Municipality or any land vested in the Municipality or under its control. In this case the Tribunal has noticed the case of the Corporation that construction has been done by the petitioner over the puramboke land vested in the Corporation. 7. The above case of the Corporation stands contradicted by Exts.P3 and P4 itself. Ext.P3 is the proceedings of the Tahsildar informing that the land is not an assignable one. In the said proceedings it is stated that the land is a bund puramboke which WP(C) 34955 of 2007 4 obviously is a land which is vested in the Irrigation Department. Similarly, when it comes to Ext.P4 proceedings of the Secretary of the Corporation itself, it is stated that the order is issued as the unauthorised construction of the shed has been made by the petitioner in Government land. The above suggests that the land in question is not either belonging to the Corporation or vested in it or is in its control. In the light of Exts.P3 and P4, I am not in a position to accept the stand of the Corporation that the land is vested in the Corporation. 8. Coming to the stand of the Corporation that the land in question is under its control also, I should confess my inability to accept this plea of the learned standing counsel appearing for the Corporation. Apart from making a vague averment in the last sentence of paragraph 2 of the statement filed in this court, the Corporation has not placed any record or document in support of this plea. That apart, this plea now raised by the Corporation in the statement also is contrary to what it had pleaded before the Tribunal where the case set up was that the land is vested in the Corporation. Therefore, the Corporation by adopting this stand is WP(C) 34955 of 2007 5 contradicting its statement that is filed in this case and I am not accepting that either. 9. In view of the above I must accept the contention of the learned counsel for the petitioner that in the absence of anything to conclude that the land is vested in the Corporation or that the land belongs to the Corporation and that the Corporation is in control of the land in question. If that be so, the direction of the Tribunal in Ext.P5 requiring the Corporation to proceed against the petitioner under sec.376 of the Kerala Municipalities Act has to be interfered with and Ext.P5 to the extent the direction as above is issued will stand set aside. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE mt/-