IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 WP(C).No. 5718 of 2009(H) ------------------------------------- PETITIONER(S): ----------------------- RETD.CAPTAIN ANTONY THOMAS, S/O.THOMAS, FATHIMA HOUSE, SAKTHIKULANGARA CHERRY, SAKTHIKULANGARA VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.B.MOHANLAL RESPONDENT(S): --------------------------- 1. THE DISTRICT COLLECTOR, COLLECTORATE, KOLLAM. 2. THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, N.H.DIVISION, POLAYATHODE, KOLLAM. 3. SRI.THULASEEDHARAN PILLAI, MADATHIL THEKKETHIL, SAKTHIKULANGARA CHERRY, SAKTHIKULANGARA VILLAGE, KOLLAM. *ADDL. R4 IMPLEADED ADDL. R4: THE EXECUTIVE ENGINEER, PWD (ROADS), KOLLAM. * IS IMPLEADED AS PER ORDER DATED 16/09/2009 IN I.A.9256/2009. R1, R2 & ADDL. R4 BY GOVT. PLEADER SMT.N. SUDHADEVI R3 BY ADV. SRI.C.S.AJITH PRAKASH, SRI.MULLASSERIL P.UDAYABANU, SRI.T.D.SALIM, SRI.PAUL C THOMAS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 5718/2009-H APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMMUNICATION DATED 25/10/2004 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. EXT.P2: COPY OF THE COMMUNICATION DATED 14/06/2006 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. EXT.P3: COPY OF THE PETITION DATED 26/06/2007 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R3(a): COPY OF THE JUDGMENT IN O.S.67/98 DATED 30/08/2003 OF THE MUNSIFF'S COURT, KOLLAM. EXT.R3(b): COPY OF THE FISHERMAN CREDIT CARD ISSUED BY THE MATSYA BHAVAN OFFICER, SAKTHIKULANGARA. EXT.R3(c): COPY OF THE DISABILITY CERTIFICATE ISSUED BY THE DISTRICT DISABILITY BOARD, KOLLAM. EXT.R3(d): COPY OF THE RATION CARD NO.1207196964. EXT.R3(e): COPY OF THE CERTIFICATE OF POSSESSION ISSUED BY SECRETARY KOLLAM CORPORATION. EXT.R3(f): COPY OF THE RECEIPT SHOWING THE CONSUMER NUMBER ISSUED BY THE WATER AUTHORITY. EXT.R3(g): COPY OF THE IDENTITY CARD ISSUED BY THE ELECTION COMMISSION OF INDIA TO THE 3RD RESPONDENT. EXT.R3(h): COPY OF THE IDENTITY CARD ISSUED BY THE ELECTION COMMISSION OF INDIA TO THE 3RD RESPONDENT'S WIFE. EXT.R3(i): COPY OF THE APPLICATION FOR ASSIGNMENT DATED 07/02/2005. EXT.R3(j): COPY OF THE CERTIFICATE ISSUED BY THE TAHSILDAR, KOLLAM DATED 10/05/2000. EXT.R3(k): COPY OF THE PHOTOGRAPH OF THE LOCATION OF THE SHED AND THE FRONT VIEW OF THE PETITIONER'S HOUSE. //TRUE COPY// P.S. TO JUDGE rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 5718 of 2009-H - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of September, 2010. JUDGMENT In this writ petition, the petitioner's complaint is that the third respondent is in occupation of a Government puramboke land beside the National Highway, near the petitioner's property and has put up a hut for his residence. It is pointed out that earlier the petitioner had filed a civil suit seeking to evict the third respondent, as O.S. No.67/1998 which was dismissed and the District Court dismissed the appeal filed against the judgment in the suit observing that the Government are at liberty to take necessary steps to evict the defendants from the alleged shed if they are not having any legal right to continue in occupation in the said structure. It is pointed out that even before the appeal was disposed of by the District Court, as per Exts.P1 and P2 the first respondent sought action on the part of the second respondent, for removing the unauthorised shed put up by the third respondent in the puramboke land. Since the said steps are not completed by the Engineer concerned, this writ petition has been filed. 2. The third respondent has filed a counter affidavit in the matter. The judgment of the civil court in O.S. No.67/1998 has been produced as wpc 5718/2009 2 Ext.R3(a). It is pointed out that the suit was dismissed after adverting to similar contentions raised by the petitioner and therefore the writ petition is barred by the principles of res judicata. The case of the third respondent in a nutshell, is that the third respondent's father in law was in occupation of the land in question from 1957 onwards. He is a fisherman having fisherman credit card and he is residing with his family in the hut. The third respondent and his family members are issued ration card in the address wherein they are residing. The house is numbered as 666 in Ward No.II of Kollam Corporation and Ext.R3(d) is the copy of the ration card issued in the above address. They are provided with electricity and water connection and the receipt showing the consumer number issued by the Water Authority is produced as Ext.R3(f). It is further pointed out that the wife of the third respondent had filed an application for assignment of the land in occupation as per Ext.R3(i)) which is pending. Ext.R3(j) is the copy of the possession certificate issued by the Tahsildar, Kollam. In the light of the above, it is pointed out that as the third respondent has sought for assignment of the land, no direction can be granted as sought for by the petitioner. wpc 5718/2009 3 3. Learned Govt. Pleader on instructions, submitted that the road in question is transferred to the Public Works Department (Roads Division). It is true that the suit filed by the petitioner has been dismissed as per Ext.R3(a) and the appeal has also been dismissed. What the petitioner requires is an immediate order of eviction from the part of the authorities concerned and evidently, Exts.P1 and P2 were addressed to the second respondent. The second respondent cannot initiate any action in the light of the fact that the road has been transferred to the P.W.D. (Roads Division). In that view of the matter, the direction sought for to implement Ext.P1 and P2 cannot be granted at this distance of time, and no reliefs have been sought against additional fourth respondent. 4. Evidently, any action for eviction, if completed, the third respondent and his family will be thrown into the street. Even though learned counsel for the petitioner submitted that the third respondent has other properties, that is stoutly denied by the learned counsel for the third respondent. Going by the counter affidavit of the third respondent, his father-in-law was in occupation of the land in question from 1957 onwards. Therefore, rehabilitation or assignment of land to the third respondent and wpc 5718/2009 4 his family may be one question which will have to be addressed by the competent authority, before any step for eviction is thought of. In that view of the matter, the writ petition is disposed of in the following manner: It is up to the additional 4th respondent or any other person to find out whether the third respondent is in unauthorised occupation of the land in question. Further, if any action under the relevant statute is initiated by the additional 4th respondent, it will be only with notice to the third respondent and after hearing him. Since the third respondent has already sought for assignment of the land, the claim for assignment also will have to be considered, especially in the light of the documents produced along with the counter affidavit wherein the land in question is shown as in his possession also. Ultimately, the question can be addressed by the Revenue authorities and the Engineer concerned, in the light of the claim raised by the third respondent for assignment as well as the contention that he is not having any other place to go. If the authorities find that the land in question is needed for any purpose or for development of the road, then a suitable site will have to be located for assignment of the third respondent and the wpc 5718/2009 5 residence of his family. The entire aspects will be considered and appropriate action as enjoined by law, in the light of the above findings, will be taken by the authorities concerned. This will not stand in the way of the third respondent seeking for assignment of any suitable land in any other locality. No costs. (T.R. Ramachandran Nair, Judge.) kav/