IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 WP(C).No. 28708 of 2009(G) -------------------------- PETITIONER: --------------- C.G.OOMMEN, S/O.GEORGE, CHAVANICKAMANNIL HOUSE, PERUMANOOR PO,KOCHI-15. BY ADVS. MR.V.M.KURIAN MR. MATHEW B. KURIAN MR. K.T. THOMAS RESPONDENTS: --------------- 1. THE DISTRICT COLLECTOR, ERNAKULAM. 2. THE TAHSILDAR, KANAYANNUR , ERNAKULAM 3. THE VILLAGE, OFFICER, ELAMKULAM VILLAGE OFFICE,ERNAKULAM. 4. THE SECRETARY, CORPORATION OF KOCHI, ERNAKUALAM, KOCHI-682 011. 5. P.M.JALAJA, W/O. LATE BALAKRISHNAN, CHANIYAMURI HOUSE, SUDHARMA ROAD, THEVARA, KOCHI BY MR. P. NARAYANAN, GOVERNMENT PLEADER R5 BY ADV. MR.A.X.VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO. 28708/2009 APPENDIX PETITIONER'S EXHIBITS P1:- TRUE COPY OF ORDER DATED 12-12-2006 PASSED BY THE 1ST RESPONDEDNT P2:- TRUE COPY OF THE JUDGENT DATED 04-07-2008 IN W.P.C. NO. 11990/2006. P3:- TRUE COPY OF THE REPRESENTATION DATED 21-08-2008 SUBMITTED BY PETITIONER TO 1ST RESPONDENT P4:- TRUE COPY OF NOTICE DATED 3-11-2008 ISSUED BY TAHSILDAR, KANAYANNUR TO 5TH RESPONDENT P5:- TRUE COPY OF NOTICE DATED 7-2-2009 ISSUED BY VILLAGE OFFICER, ELAMKULAM TO 5TH RESPONDENT P6:- TRUE COPY OF JUDGMENT DATED 12-2-2009 IN W.P.(C) NO. 4586/2009 P7:- TRUE COPY OF ORDER DATED 13-08-2009 IN R.P. NO. 453/2009 P8:- TRUE COPY OF JUDGMENT DATED 15-9-2009 IN W.A. NO. 2025/2009 P9:- TRUE COPY OF THE REPRESENTATION DATED 18-09-2009 SUBMITTED BY PETITIONER P10:- TRUE COPY OF THE BUILDING PERMIT DATED 19-6-99 ISSUED BY CORPORATION OF COCHIN RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.N.RAVINDRAN,J. ---------------------------------------- W.P.(C) No.28708 of 2009 - G ---------------------------------------- Dated 10th December, 2009 Judgment The main prayer in this writ petition is for a direction to respondents 1 to 3 to effectively implement Ext.P1 order passed by the District Collector, Ernakulam by evicting the fifth respondent. The petitioner states that Ext.P1 order was passed after enquiry conducted through the Village Officer, Elamkulam village into the complaint filed by him that the fifth respondent and others had encroached upon kayal poramboke in Survey No.1018 of Elamkulam village. After Ext.P1 order was passed, the Additional Tahsildar, Kanayannur Taluk and the Village Officer, Elamkulam village issued Exts.P4 and P5 notices to the fifth respondent calling upon her to surrender possession of the kayal puramboke encroached upon by him. It is stated that suppressing the fact that Exts.P4 and P5 notices were issued by the Additional Tahsildar, Kanayannur and the Village Officer, Elamkulam village pursuant to the W.P.(C) No.28708/2009 2 directions issued by the District Collector in Ext.P1, the fifth respondent filed W.P.(C) No.4586 of 2009 in this Court challenging the said notices. Though in the said writ petition, the petitioner herein was arrayed as the sixth respondent, the said writ petition was disposed of at the stage of admission without notice to him by Ext.P6 judgment, wherein this Court directed that Exts.P4 and P5 notices issued by the Additional Tahsildar, Kanayannur and the Village Officer, Elamkulam (that were produced as Exts.P8 and P9 in W.P.(C) No.4586 of 2009) shall be treated as show cause notices, that the fifth respondent shall file her objections if any to the said notices within two weeks and that the second respondent shall thereafter consider the objections and pass a reasoned order after affording the fifth respondent an opportunity of being heard. The petitioner thereupon filed R.P.No.453 of 2009 pointing out that the notices impugned in the writ petition were issued pursuant to the directions issued by the District Collector which in turn was passed after hearing the fifth respondent (the petitioner in W.P.(C) No.4586 of 2009) and that she had suppressed material facts in the writ petition. By W.P.(C) No.28708/2009 3 Ext.P7 judgment delivered on 13.8.2009, this Court allowed the review petition, set aside Ext.P6 judgment and dismissed W.P.(C) No.4586 of 2009 with costs. The learned single Judge however observed in Ext.P7 judgment that the petitioner can challenge the notices impugned in the writ petition before the statutory authorities if such remedy is available. The fifth respondent thereupon filed W.A.No.2025 of 2009. The said writ appeal was dismissed by Ext.P8 judgment delivered on 15.9.2009 taking note of the observation of the learned single Judge that the petitioner can challenge the notices impugned in W.P(c) No.4586 of 2009 in appeal if such remedy is available. The petitioner thereafter filed Ext.P9 representation before the District Collector seeking implementation of Ext.P1 order. This writ petition was thereafter filed on 12.10.2009 seeking the following reliefs: “(a) Issue a writ of mandamus or other appropriate writ, order or direction directing respondents 1 to 3 to effectively implement Ext.P1 order expeditiously by evicting the 5th respondent, who had encroached into the kayal puramboke in Sy. No.1018 of Elamkulam Village, Kanayannur Taluk; W.P.(C) No.28708/2009 4 (b) Issue a writ of mandamus or other writ, order or direction directing respondents 1 to 3 to take effective steps to evict the encroachers who have encroached into the kayal puramboke in Sy.No.1018 of Elamkulam Village, Kanayannur Taluk expeditiously;” 2. The pleadings disclose that pursuant to Ext.P8 judgment, the fifth respondent filed an appeal before the Revenue Divisional Officer, Fort Cochin canvassing the correctness of Exts.P4 and P5 notices and that on that appeal, the Revenue Divisional Officer, Fort Cochin has passed an order staying further proceedings pursuant to the said notices. In my opinion, in view of the observation of the learned single Judge in Ext.P7 judgment and of the Division Bench in Ext.P8 judgment, the fifth respondent is entitled to canvass the correctness of Exts.P4 and P5 notices in appeal if such remedy is available. It is for the Revenue Divisional Officer before whom the appeal against Exts.P4 and P5 notices is pending to decide whether in the light of the directions issued by the District Collector in Ext.P1, the appeal filed before him by the fifth respondent is maintainable. If such appeal is maintainable, Ext.P1 order cannot be implemented otherwise that after after the appeal is heard and disposed of. In such W.P.(C) No.28708/2009 5 circumstances, I am of the opinion that the reliefs prayed for by the petitioner cannot be granted at this stage. The petitioner will have to wait till the appeal filed by the fifth respondent is disposed of and thereafter seek appropriate orders in the matter. His rights in that regard are kept open. I accordingly dispose of this writ petition with a direction to the Revenue Divisional Officer, Fort Cochin to pass final orders on the appeal filed by the fifth respondent from Exts.P4 and P5 notices expeditiously and in any event within one month from the date on which the petitioner produces a certified copy of this judgment before him. The Revenue Divisional Officer, Fort Cochin shall before passing orders as directed above, afford the petitioner and the fifth respondent a reasonable opportunity of being heard. The Revenue Divisional Officer shall after orders are passed as directed above communicate a copy thereof to the petitioner and the fifth respondent. P.N.RAVINDRAN Judge jma