IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 WP(C).No. 23128 of 2009(I) -------------------------- PETITIONERS: --------------- 1. P.A.BABU, S/O.ANTHRU, PAZHAMBIULIL, XXV/567 OPP.GOVT,.HOSPITAL, KOTHAMANGALAM. 2. N.M.PAREETH, NADAPPADA XXV/564 OPP.GOVT,.HOSPITAL, KOTHAMANGALAM. 3. MAMACHAN, JOSEPH, ELICHIRA, XXV/561 & 562 OPP.GOVT,.HOSPITAL, KOTHAMANGALAM. 4. FOWMIC V.SUBAIR, VALIYAPARAMBI XXV/570 OPP.GOVT,.HOSPITAL, KOTHAMANGALAM. 5. P.P.ABUBACKER, PULICKAL, XXV/548 549 OPP.GOVT,.HOSPITAL, KOTHAMANGALAM. 6. ALIYAR, S/O.MOIDEEN, KARAKKUDY,XXV/555& 556 OPP.GOVT,.HOSPITAL, KOTHAMANGALAM. 7. ASSAINAR, S/O.MOIDEEN,INJAKUZHY XXV/553 OPP.GOVT,.HOSPITAL, KOTHAMANGALAM. 8. K.S.ALIYAR, KANJIRAMOLEL HOUSE XXV/550 OPP.GOVT,.HOSPITAL, KOTHAMANGALAM. 9. JOSEPH JOSEPH, PEECHATTUKUDIYIL HOUSE XXV/560 OPP.GOVT,.HOSPITAL, KOTHAMANGALAM. 10. PHILOMINA SEBASTIAN, KATTUKUDIYIL,XXV/ 551&567 OPP.GOVT,.HOSPITAL, KOTHAMANGALAM. 11. MOIDEEN HASSAN, KARAKKUZHY, XXV/557 OPP.GOVT,.HOSPITAL, KOTHAMANGALAM. 12. M.N.PANKAJAKSHAN, KALLARACKAL PUTHENPURA XXV/568 OPP.GOVT,.HOSPITAL, KOTHAMANGALAM. WP(C).No. 23128 of 2009 -2- 13. EBRAHEEM, KOTTAYIL XXV/558 OPP.GOVT,.HOSPITAL, KOTHAMANGALAM. 14. SAKKEER V.M, S/O.MOHAMMED, XXV/569 OPP.GOVT,.HOSPITAL, KOTHAMANGALAM. 15. ABDUL KAREEM, S/O.EBRAHIM, MULLATTU HOU XXV/571 OPP.GOVT,.HOSPITAL, KOTHAMANGALAM. 16. MOIDEEN MUHAMMED, IKKARAKUDY XXV/554 OPP.GOVT,.HOSPITAL, KOTHAMANGALAM. 17. SHALLOT BABY, KOCHUPARAMBIL HOUSEL XXV/565 OPP.GOVT,.HOSPITAL, KOTHAMANGALAM. 18. P.M.SAKHIR HUSSAIN,PALANTHINKAL,XXV/546 &547 OPP.GOVT,.HOSPITAL, KOTHAMANGALAM. 19. K.M.MOIDEEN, VATAKUDY, XXV/563 OPP.GOVT,.HOSPITAL, KOTHAMANGALAM. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SRI.J.R.PREM NAVAZ RESPONDENTS: --------------- 1. THE LAND REVENU COMMISSIONER, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, ERNAKULAM. 3. THE TAHSILDAR, TALUK OFFICE, KOTHAMANGALAM. 4. THE ADDL,TAHSILDAR, TALUK OFFICE, KOTHAMANGALAM. 5. THE ASST.EXECUTIVE ENGINEER, PWD ROADS SUB DIVISION, KOTHAMANGALAM. BY GOVT. PLEADER SRI.P.NARAYANAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ------------------------- W.P ( C) No. 23128 of 2009 -------------------------- Dated this the 13th August,2009 J U D G M E N T Petitioners occupy shops in Kothamangalam town on the Aluva-Munnar Road opposite to the Kothamangalam Taluk Hospital. They claim to be owning such shops. They claim ownership for the last more than 16 years. Writ Petition No.3847 of 2008 was moved before this Court alleging encroachment upon road puramboke and thodu puramboke and further alleging that structures of semi permanent and permanent nature have been put up in Kothamangalam. Apparently this Court had directed action to be taken to remove such encroachment. Pursuant thereto Ext.P1 and similar notices were issued to the petitioners by the Additional Tahasildar. The Tahasildar ordered the surveyor to measure the properties. It seems that the Surveyors measured the property without looking into the title deeds or revenue records. The Tahasildar submitted a report before the District Collector. Petitioner preferred an appeal before the District Superintendent of Surveys and Land Records. It seems that the appeal was disposed of W.P ( C) No. 23128 of 2009 2 stating that the same is not maintainable. Petitioners then approached the District Collector by Ext.P3. They contend that they were denied an opportunity by the Tahasildar to examine the documents. A further notice Ext.P4 was issued requiring the petitioners to remove the encroachment. This notice was issued by the Assistant Executive Engineer invoking Section 11 (3) of the Kerala Land Conservancy Act. Petitioner moved the District Collector by Ext.P5 which was directed to be disposed of under Ext.P6 judgment. By Ext.P7 order the District Collector held that it is necessary to remove the encroachment from the road puramboke comprised in Sy.No.1019/1-1 and the Asst. Executive Engineer, PWD Roads Division was given the task of evicting such encroachments. Further steps were to be taken only in accordance with law. 2. Ext.P7 was challenged by the petitioner in an appeal before the Land Revenue Commissioner and the Commissioner has disposed the same as per Ext.P9 order. Relevant portion of Ext.P9 reads as follows. “As per the direction of the District Collector, Ernakulam, the Assistant Executive Engineer, PWD should take necessary steps under the provisions contained in the KLC Act 1957. The above Act W.P ( C) No. 23128 of 2009 3 really specifies the formalities to be complied before carrying out the actual eviction. Which means, the opportunity of being heard is to be given to the party at the Asst. Executive Engineers level and also at the succeeding levels like appeal at District Collector and Revision Petition at Commissioner of Land Revenue. This being so the appeal preferred vide above reference is not ripe to be considered at this juncture. Hence all the above 21 appears are rejected.” 3. Similar orders have been passed as per Exts.P10 to P27. Exts.P9 to P27 have been challenged in the writ petition. 4. Heard learned counsel for the petitioners and Learned Government Pleader . 6. Petitioners claim to be in possession of different extents of land on the side of the PWD road in Kothamangalam for the past more than 16 years. The nature of the title asserted by the petitioners have not been pleaded in the writ petition. But the petitioners plead that title deeds have not been looked into by the Tahasildar. The Tahasildar has submitted a report before the District Collector. The District Collector has only authorized the Assistant Executive Engineer to take steps under the Land Conservancy Act. This position has been re-affirmed by the Commissioner. W.P ( C) No. 23128 of 2009 4 7. It is not as if the petitioners will be evicted without verification of the question as to whether they are in possession of any registered holding or they have encroached into any puramboke. Thus, if the materials are produced by the petitioners before the Asst. Executive Engineer to show that they are in possession of only registered holdings, then this aspect shall be verified by the Asst. Executive Engineer before finalizing the proceedings under Section 11(3) of the Land Conservancy Act. These observations shall be taken note of by the Asst. Executive Engineer while proceeding with the steps taken in terms of the direction issued by the District Collector and affirmed by the Land Revenue Commissioner. Subject to the above, writ petition is disposed of. (V.GIRI,JUDGE) ma W.P ( C) No. 23128 of 2009 5 W.P ( C) No. 23128 of 2009 6