IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 WP(C).No. 28393 of 2008(E) -------------------------------------- PETITIONER: ------------------- MALAYALEE CLUB LIMTED, NEERO TOWERS, KUTTAPAYI ROAD, KOCHI-35, REPRESENTED BY ITS MANAGING DIRECTOR, FRANCIS MUKKANNIKAL. BY ADVS. MR.V.PHILIP MATHEWS, MR.JOSE JOSEPH. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, IDUKKI. 3. TAHSILDHAR,PEERUMEDU. 4. ELAPPARA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, ELAPPARA, IDUKKI. 5. VILLAGE OFFICER, VAGAMON, IDUKKI DISTRICT. W.P.(C). NO.28393/2008-E: *ADDL. R6 AND R7 IMPLEADED: 6. THE CHIEF CONSERVATOR OF FORESTS, (RS) KOLLAM. 7. COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM. R1, R2, R3, R5, R6 & R7 BY GOVT. PLEADER SMT. SUDHA DEVI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.28393/2008-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE CERTIFICATE ISSUED BY REGISTRAR OF COMPANIES, KERALA AND LAKSHADWEEP. EXT.P.2: COPY OF THE SALE DEED NO. 8/2008 DTD. 02/01/2008 OF PEERUMEDU SRO. EXT.P.3: COPY OF THE LAND TAX RECEIPT DTD. 10/01/08 ISSUED BY VILLAGE OFFICER, VAGAMON. EXT.P.4: COPY OF THE POSSESSION CERTIFICATE DTD. 10/01/08 ISSUED BY VILLAGE OFFICER, VAGAMON. EXT.P.5: COPY OF THE BUILDING PERMIT NO. A1-41/07-08 DTD. 23/01/08 ISSUED BY THE R.4. EXT.P.5.A: COPY OF THE BUILDING PERMIT NO. A1-39/07-08 DTD. 23/01/08 ISSUED BY THE R.4. EXT.P.5.B: COPY OF THE BUILDING PERMIT NO. A1-33/07-08 DTD. 23/01/08 ISSUED BY THE R.4. EXT.P.5.C: COPY OF THE BUILDING PERMIT NO. A1-35/07-08 DTD. 23/01/08 ISSUED BY THE R.4. EXT.P.5.D: COPY OF THE BUILDING PERMIT NO. A1-36/07-08 DD. 23/01/08 ISSUED BY THE R.4. EXT.P.5.E: COPY OF THE BUILDING PERMIT NO. A1-37/07-08 DTD. 23/01/08 ISSUED BY THE R.4. EXT.P.5.F: COPY OF THE BUILDING PERMIT NO. A1-38/07-08 DTD. 23/01/08 ISSUED BY THE R.4. EXT.P.5.G: COPY OF THE BUILDING PERMIT NO.A1-32/07-08 DTD. 23/01/08 ISSUED BY THE R.4. EXT.P.5.H: COPY OF THE BUILDING PERMIT NO. A1-34/07-08 DTD. 23/01/08 ISSUED BY THE R.4. EXT.P.5.I: COPY OF THE BUILDING PERMIT NO. A1-40/07-08 DTD. 23/01/08 ISSUED BY THE R.4. EXT.P.5.J: COPY OF THE BUILDING PERMIT NO. A1-39/07-08 DTD. 23/01/08 ISSUED BY THE R.4. W.P.(C). NO.28393/2008-E: EXT.P.6: COPY OF THE MEMO ISSUED TO THE PETITIONER. EXT.P.7: COPY OF THE NEWS PAPER REPORT PUBLISHED IN MADHYAMAM DAILY DTD. 20/09/2008. EXT.P.8: COPY OF THE NEWS PAPER REPORT PUBLISHED IN MADHYAMAM DAILY DTD. 22/09/2008. EXT.P.9: COPY OF THE REPRESENTATION DTD. 29/09/2008 FILED BY PETITIONER BEFORE THE R.1. EXT.P.10: COPY OF THE REPRESENTATION DTD. 29/09/2008 FILED BY PETITIONER BEFORE THE R.2. EXT.P.11: COPY OF THE REPRESENTATION DTD. 29/09/2008 FILED BY PETITIONER BEFORE THE COMMISSIONER OF LAND REVENUE. EXT.P.12: COPY OF THE REPORT DTD. 24/09/2008 SUBMITTED BY R.3. TO R.2. EXT.P.13: COPY OF THE REPORT SUBMITTED BY CHIEF CONSERVATOR OF FORESTS (RS) KOLLAM. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. V.GIRI, J ------------------- W.P.(C).28393/2008 -------------------- Dated this the 8th day of April, 2009 JUDGMENT Petitioner is aggrieved by Ext.P6 stop memo issued by the Village Officer on the allegation that the petitioner has encroached into Government property and has been carrying on construction activity in such encroached land. It is inter alia contended that the Village Officer has no jurisdiction to issue a memo in the nature of Ext.P6. 2. The State has not filed a counter affidavit so far. This Court had passed an interim order, staying demolition of the construction already effected in the property. But there is also an interdiction against the petitioner taking up further construction. 3. Petitioner has subsequently produced Exts.P12 and P13, Ext.P12 being a report by the Tahsildar and Ext.P13 being a report by the Chief Conservator of the Forest. It is contended that Exts.P12 and P13 W.P.(C).28393/2008 2 would show that the petitioner has not trespassed into Government land nor is there any encroachment of Forest land. 4. Learned Government Pleader, on instructions, submits that an enquiry is being conducted by the Land Revenue Commissioner and there is possibility that the encroachment has been made on revenue land and not Forest land. 5. Petitioner cannot be deprived of user of it's property. There is no specific finding by any competent authority that petitioner has encroached into any Government land. Nor is there any finding as to the actual extent of encroachment, if any. In the meanwhile, the petitioner is being deprived of user of the land. I am of the view that a decision may be taken at the level of the Commissioner of Land Revenue. 6. In the circumstances, the Land Revenue W.P.(C).28393/2008 3 Commissioner may take a decision on Ext.P11 with notice to the petitioner. This shall be done within two months from the date of receipt of a copy of this judgment. The Land Revenue Commissioner shall take into account Ext.P13 report of the Chief Conservator of Forest. Land Revenue Commissioner can also take note of Ext.P12 and if the Commissioner comes to the conclusion that there is encroachment, then the details of the encroachment shall be specifically made mention of in the order to be passed by the Commissioner on Ext.P11. If the Commissioner finds that there is no encroachment either on Forest land or revenue land, petitioner will be free to proceed with the construction, in accordance with law. If the Commissioner comes to the conclusion that there is encroachment, then obviously restraint on construction shall be confined to such encroachment. Petitioner will be free to proceed with the construction in the remaining portion of its property. Petitioner will be entitled to challenge the correctness of any order passed by the W.P.(C).28393/2008 4 Land Revenue Commissioner, if necessary and if so advised. In the meanwhile, the interim order passed by this Court shall continue to remain in force, until a decision is taken by the Commissioner of Land Revenue. It is made clear that Ext.P6 need only be treated as a show cause notice. Writ petition is disposed of as above. V.GIRI, Judge mrcs