IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 OP.No. 14677 of 2000(V) ---------------------------------- PETITIONER(S): ------------------------ K. KUMAR, S/O.A.K. SAMI, CHAKATHILPARAMBIL HOUSE, NEAR SUBSTATION, VYTTILA P.O. BY ADV. SRI.A.X.VARGHESE. RESPONDENT(S): --------------------------- 1. SRI. NARAYANA KAMMATH, PARTNER OF JAYALAKSHMI SILKS AND SAREES, M.G. ROAD, ERNAKULAM. 2. TAHSILDAR, KANAYANNUR TALUK, KANAYANNUR. 3. DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD, ERNAKULAM. 4. SPECIAL SECRETARY TO GOVT., REVENUE (A) DEPARTMENT, TRIVANDRUM. 5. COCHIN CORPORATION, REP. BY ITS SECRETARY. R2 TO R4 BY GOVT. PLEADER SMT.SMITHA SUKUMARAN R1 BY SRI.M.R.RAJENDRAN NAIR, SENIOR ADVOCATE, ADV. SRI.R.SREERAJ, SRI.M.R.SUDHEENDRAN. R5 BY ADV. SRI.K.P.SATHEESAN. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 14677/2000-V APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER REJECTING THE PETITIONER'S APPLICATION FOR ASSIGNMENT OF PURAMBOKE LAND IN SY.NO.2562/2. EXT.P2: COPY OF THE REVISION PETITION FILED BY THE ETITIONER BEFORE THE RESPONDENTS 4 AND 5 DATED 25/03/1996. EXT.P3: COPY OF THE JUDGMENT IN O.P. NO. 7804/1996 DATED 10/05/1996.. EXT.P4: COPY OF THE JUDGMENT IN O.P. NO. 10691/1997 DATED 25/08/1997. EXT.P5: COPY OF THE JUDGMENT IN O.P. NO. 14753/1996. EXT.P6: COPY OF THE ORDER DATED 21/03/1998 OF ASST. COLLECTOR, FORT COCHIN EXT.P7: COPY OF THE APPEAL AND STAY PETITION FILED BEFORE THE 4TH RESPONDENT DATED 19/04/1999. EXT.P8: COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 15/01/2000. EXT.P9: COPY OF THE CONSTRUCTIONS MADE BY THE FIRST RESPONDENT ENCROACHING PURAMBOKE LAND. EXT.P10: NIL EXT.P11: NIL EXT.P12: COPY OF THE SKETCH AN DESCRIPTION. EXT.P13: COPY OF THE ORDER DATED 12/10/2004. RESPONDENT'S ANNEXURES: ANNEXURE R3(1): COPY OF THE LR NO.6582/07 DATED 23/05/2007 OF TAHSILDAR, KANAYANNUR. ANNEXURE R3(1a): COPY OF THE LR NO.6582/07 DATED 23/05/2007 OF TAHSILDAR, KANAYANNUR. //TRUE COPY// P.S. TO JUDGE rs. P.N.RAVINDRAN, J. ----------------------------------------- O.P.No.14677 of 2000 ----------------------------------------- Dated this the 2nd day of June, 2010 JUDGMENT This writ petition was filed on 20-5-2000 challenging Ext.P8 order passed by the Government rejecting the petitioner's application for assignment of a portion of the poramboke land situated in Sy.No.1710 of Ernakulam Village. The petitioner has also prayed for a direction to respondents 1 to 15 to take steps to remove the unauthorised construction made by the first respondent in the poramboke land situated in Sy.No.1710 of Ernakulam Village and to restrain them from assigning the said land to the first respondent. 2. After this original petition was filed, steps were taken by the District Collector, Ernakulam to remove the encroachments in the disputed property. This Court had also passed an order on 2-6-2009 directing the District Collector to file a statement stating whether the direction issued in Ext.P8 has been complied with and the present position of the property. Pursuant to the said direction the District Collector, Ernakulam has filed a statement dated 3-7-2009 wherein it is stated that pursuant to Exts.R3(1) and R3(1a) notices dated 23-5- 2007 the first respondent surrendered vacant possession of poramboke land situated in Sy.No.1710 of Ernakulam Village having an O.P.No.14677 of 2000 -:2:- extent of 48 Sq. metres. The statement dated 3-7-2009 reads as follows:- “1. On 23-5-2007, the 2nd respondent - Kanayannur Tahsildar issued notice under Rule 11 of the KLC Act (Kerala Land Conservancy Act) 1957 to the 1st respondent viz. Narayana Kammath, Jayalakshmi Silks & Sarees to vacate from the poramboke land lying by the side of M.G.Road, Ernakulam comprised in Sy.No.2562/2 now re-numbered as Sy.No.1710 of Ernakulam Village having an extent of 48 m2 within 24 hours from the date of receipt of the above notice. True copy of the notice dated 23.5.2007 issued by the 2nd respondent is produced herewith and marked as Ext.R3(1) and R3(1a). On receipt of the notice, the 1st respondent viz. Narayana Kammath voluntarily gave up the above poramboke land. As per the 1995 Municipality/ Panchayath Raj Act, all road poramboke be vested with the Local Self Government. As such the above poramboke land is now being used by the Corporation of Cochin for the parking of cars belonging to the public.” 3. The petitioner has filed a reply affidavit dated 27-7-2009. In O.P.No.14677 of 2000 -:3:- paragraph 4 thereof the petitioner has questioned the correctness of the statement made by the District Collector that the poramboke land which was surrendered is being used by the Corporation of Cochin for parking of cars belonging to the public. On the other hand the petitioner has stated that the poramboke land is used for parking of vehicles belonging to customers of the first respondent. It is also stated that customers are using the poramboke land which lies in front of the first respondent's shop to have access to the shop. It is also stated that though Ext.P8 report refers to the extent of the poramboke land in the possession of the first respondent as 864 Sq. links, the notices issued by the Tahsildar relate only to 48 Sq. metres and that only 48 Sq.metres was surrendered by the first respondent. It is also contended that the notices have been issued showing a lesser extent of the land as poramboke land occupied by the first respondent for extraneous considerations. 4. The petitioner has no case that besides the area already surrendered by the first respondent, the first respondent is in possession of any portion of the poramboke land in Sy.No.1710 of Ernakulam Village. The only allegation of the petitioner in the reply affidavit is that customers who visit the first respondent's shop are using the land already surrendered by them to the Government. The O.P.No.14677 of 2000 -:4:- fact that customers coming to the first respondent's shop are using the land surrendered by the first respondent to park their cars is no reason to hold that the first respondent is in possession of the surrendered land. The petitioner cannot say that persons who park their cars in the poramboke land surrendered by the first respondent should not shop in the first respondent's shop. He cannot also contend that they should shop elsewhere only. The petitioner has no case that even after the surrender of 48 Sq.metres of land, the first respondent continues to be in possession of any portion of the poramboke land in Sy.No.1710 of Ernakulam Village. In such circumstances I am of the considered opinion that no further orders are called for in this writ petition. It is accordingly closed with a direction to respondents 2 to 4 to ensure that the first respondent does not trespass upon the lands already surrendered by him or reduce it to his possession. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- O.P.No.14677 of 2000 ---------------------------- JUDGMENT 2nd June, 2010