IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 WP(C).No. 29866 of 2008(E) --------------------------------------- PETITIONER(S): ----------------------- C.I. MARTIN, S/O. ISSAC, PUTHEN VEEDU, VELLIMON WEST, KOLLAM. BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE BY ADV.SRI.S.A.SAJU RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO DEPARTMENT OF REVENUE, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, KOLLAM. 3. TAHSILDAR, KOLLAM. 4. VILLAGE OFFICER, PERINADU, KOLLAM. R1 TO R4 BY SENIOR GOVT PLEADER SRI. SABU.M.R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.29866/2008 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE APPLICATION DATED 04/08/1996 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. P2 COPY OF THE LETTER DATED 21/08/2008 FROM THE 3RD RESPONDENT ADDRESSED TO VILLAGE OFFICER, PERINADU. P3 COPY OF THE REPORT SUBMITTED BY VILLAGE OFFICER, PERINADU DATED 03/12/2008. P4 COPY OF THE RESOLUTION PASSED BY THE PERINADU GRAMA PANCHAYATH DATED 25/06/1999. P5 COPY OF THE JUDGMENT IN O.P.NO.27402/2001 DATED 27/06/2006. P6 COPY OF THE JUDGMENT IN C.C.C.NO.537/2007 DATED 25/07/2008. P7 COPY OF THE REGISTERED NOTICE DATED 10/12/2007 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. P8 COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT DATED 05/01/2008. P9 COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 18/01/2008. P10 COPY OF THE NOTICE ISSUED BY THE ADDITIONAL TAHSILDAR, KOLLAM DATED 08/02/2008. P11 COPY OF THE ORDER PASSED IN WP(C)NO.5632/2008 DATED 18/02/2008. P12 COPY OF THE COUNTER AFFIDAVIT FILED BY THE 3RD RESPONDENT IN WP(C) NO.5632/2008 DATED JULY, 2008. P13 COPY OF THE ORDER IN WP(C)NO.5632/2008 DATED 28/08/2008. P14 COPY OF THE MAHZAR PREPARED ON 29/08/2008 BY THE VILLAGE OFFICER, PERINADU. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 29866 of 2008 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of February, 2011 J U D G M E N T The petitioner in this writ petition is the owner of a Tourist Resort and Cottage at Perinadu in Kollam District. According to the petitioner, that Tourist Resort comprised of properties belonging to him as well as some Government land. He submitted application for assignment of the Government land under the Land Assignment Act which was dismissed by the Government which according to the petitioner was without affording an opportunity of being heard to the petitioner insofar as after adjourning the case for hearing, fresh date of hearing was not notified to the petitioner. Challenging that order, the petitioner filed W.P. (C) No.5632/2008 which is pending before this court. In that writ petition, originally there was an order of stay of dispossession of the petitioner from the land. On 28.08.2008 this court vacated the interim order in view of the averments in the counter affidavit filed by the Tahsildar, W.P.(C)No. 29866 of 2008 -2- Kollam. According to the petitioner, on a wrong premise that by vacating that interim order this court directed the Government to take possession of the Government land, on 29.08.2008, the respondents took forcible possession of the property. The petitioner is aggrieved by the same. According to the petitioner, this is a highhanded action insofar as this court had not directed to take possession of the property and the petitioner was not given a reasonable opportunity in the matter. The petitioner further contends that as is evidenced by Ext.P10 notice issued to the petitioner under the Kerala Land Conservancy Act, the respondents had initiated proceedings under the Land Conservancy Act only in respect of 28.58 ares and actually by Ext.P14 mahazar prepared for taking possession of the land, 45.68 ares of land has been taken possession of. It is under the above circumstances the petitioner has filed this writ petition seeking the following reliefs: “a) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to restore possession of the land taken from the petitioner as per Ext.P14 Mahzar to the petitioner immediately.” W.P.(C)No. 29866 of 2008 -3- 2. A counter affidavit has been filed by the 3rd respondent wherein the contention taken is that the entire 45.68 ares of land is Government land and the petitioner had encroached into the same. 3. I have considered the rival contentions in detail. 4. This court passed the following interim order in I.A. No.13895/2008 on 12.11.2008 which is self explanatory: “I heard Sri. T. Krishnanunni, learned Senior Counsel for the petitioner and the learned Government Pleader for the respondents. 2. Learned counsel for the petitioner refers to Ext.P14 mahazar which shows that an extent of 45.68 Ares of land has been taken possession of from the petitioner. Mr. Krishnanunni refers to Ext.P10 notice issued under the Land Conservancy Act which schedules only an extent of 28.5 Ares of land. Learned Government Pleader affirms that the entire portion as mentioned under Ext.P14 has been taken possession of by the Government from the petitioner. There are several buildings/cottages in the property, it is submitted. 3. In the facts and circumstances of the case , I am of the view that no further action should be taken against the buildings situated in the property acquired by the respondents. Status quo shall be maintained as regards the property taken over by the Government as per Ext.P14, until further orders. Additional counter affidavit within three weeks. Post for hearing immediately thereafter.” 5. As is clear from Ext.P10 notice under the Kerala Land Conservancy Act and Rules, the petitioner was put on notice for resumption of only 28.58 ares of land. Even if the W.P.(C)No. 29866 of 2008 -4- respondents has a case that the entire 45.68 ares of land is Government land, the respondents could not have resumed the entire land without putting the petitioner on notice in respect of the balance land as well. Of course, I note the contention of the petitioner that the allegation that the petitioner has encroached into other Government land also is incorrect. I am not expected to go into the correctness of the rival contentions in that regard, since that is not a subject matter of this writ petition for the present. When proceedings have been initiated under the Land Conservancy Act against the petitioner only in respect of 28.58 ares of land in possession of the petitioner, I do not think that without first initiating proceedings in respect of the balance properties also by putting the petitioner on notice with opportunity to file objections and an opportunity for a hearing the respondents could have proceeded against the entire 45.68 ares of land and resumed the entire land. Therefore the respondents are liable to be directed to restore to the petitioner possession of the land not covered W.P.(C)No. 29866 of 2008 -5- by Ext.P10 notice. Accordingly the respondents are directed to restore possession of 17.10 ares of land not covered by Ext.P10 to the petitioner within one month from the date of receipt of a certified copy of this judgment. The respondents shall cause measurement of the entire land after giving prior notice to him regarding the date and time of measurement and demarcate the 28.58 ares of land covered by Ext.P10 and restore possession of the balance 17.10 ares out of 45.68 ares to the petitioner. However this would be without prejudice to the right of the respondents to take action against the balance 17.10 ares of land also if they have a case that, that property is also Government land but only after complying with the procedure prescribed under the Kerala Land conservancy Act and Rules. This writ petition is disposed of as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/