IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 WP(C).No. 27658 of 2008(P) -------------------------- PETITIONER(S): --------------- RESHMI ANIL KUMAR, THAZHAVILAKATHU PUTEN VEEDU, PLAVILA, PIRAPPANCODE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.PIRAPPANCODE V.S.SUDHIR SRI.SAJU JOHN SRI.V.VARGHESE RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 3. THE DEPUTY COLLECTOR (LR), COLLECTORATE, THIRUVANANTHAPURAM. 4. THE ADDITIONAL TAHSILDAR,TALUK OFFICE, NEDUMANGAD, THIRUVANANTHAPURAM. 5. SALIM, KATTUVILAKATHU VEEDU, PALAVILA, PIRAPPANCODE, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI. K. SANAL KUMARFOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/09/2009, THE COURT ON 24/09/2009 DELIVERED THE FOLLOWING: APPENDIX Ext.P1. True copy of the survey sketch. Ext.P2. True copy of the permit issued by the Manicakal Grama Pachayat along with a copy of the approved plan of the compound wall Ext.P3. True copy of the representation dated 16.7.2008 filed by the petitioner before the 2nd respondent. Ext.P4. True copy of the letter No.D1-2118/08 dated 12.8.2008 of the 4th respondent addressed to the 2nd respondent. Ext.P5. True copy of the letter No.15/8972/08(1) dated 22.8.2008 of the 2nd respondent. Ext.P6. True copy of the representation dated 29.8.2008 filed by the petitioner before the Hon'ble Minister for Revenue. // true copy// P.A to Judge. ANTONY DOMINIC,J. --------------------- W.P.(C).No.27658 OF 2008 ------------------------ Dated this the 24th day of September, 2009. JUDGMENT Petitioner submits that on 27.12.2001, her husband who is abroad purchased 3.24 ares of property situated in R.S. No.4/19-1 of Block No.29 of Manickal Village. Ext.P1 is the survey sketch. According to the petitioner, on the strength of ExtP2 building permit, a compound wall was constructed. Thereafter, apparently acting in pursuance to a complaint made by the 5th respondent, the revenue officials attempted to demolish the compound wall and it is stated by the petitioner that thereupon as her husband was out of the country, she submitted Ext.P3 representation to the 2nd respondent. 2. It is stated that subsequently the petitioner came to know of Exts.P4 and P5 communications exchanged between respondents 2 and 4, where the 4th respondent has reported to the 2nd respondent that his direction to demolish the compound wall and evict the petitioner from the portion of the property WP(c).No.27658/08 2 unauthorizedly occupied by her could not be carried out for the reasons stated therein. By Ext.P5, in answer to Ext.P4, the 2nd respondent directed the 4th respondent to forcefully evict the petitioner and implement his earlier direction. According to the petitioner, there upon she approached the Minister for Revenue by filing Ext.P6 requesting for the Minister's intervention and as no action was forthcoming even on Ext.P6 this writ petition was filed. 3. Counter affidavit has been filed by the respondents. According to the respondents, a complaint was received from the 5th respondent alleging that the petitioner had trespassed into a pathway leading to his property. It is stated that thereupon verification was conducted thorough The officials of the Revenue Department and it was found that the petitioner had encroached into one cent of purambokku property situated in Sy. No.7/1 of Block No.29 of Manickal village. It is stated that there upon proceedings were initiated under the Land Conservancy Act and it is challenging the said proceedings the writ petition is filed. 4. If as a matter of fact the petitioner has trespassed into the purambokku property, she is liable to be proceeded against. Of course in Ext.P3 representation filed by the petitioner before the 2nd respondent, she has made a request that the properties in the entire WP(c).No.27658/08 3 neighborhood should be measured and as part of eviction of such encroachments, if she is also proceeded against she is willing to surrender the encroached portion of her property. However, if as a matter of fact she has encroached purambokku property, she has no right to say that until all other encroachments are evicted, she should be permitted to be in occupation of the encroached land. Therefore I cannot accept the contention of the counsel for the petitioner that, until the entire encroachments are evicted, the petitioner should be left untouched. 5. However fact remains that even according to the counter affidavit filed by the respondents, proceedings initiated against the petitioner are under Kerala Land Conservancy Act, 1957. This Act lays down the procedure to be followed if a person is in unauthorized occupation of Govt. property. This requires notice to be served and orders to be passed after issuing notice. Petitioner specifically pleaded in the writ petition that the proceedings initiated were without serving notice to the petitioner and without an opportunity of hearing. Therefore the proceedings already initiated in the absence of notice and hearing cannot be sustained. 6. In view of the above, Ext.P5 order issued by the 4th respondent requiring to forcefully evict the petitioner from the WP(c).No.27658/08 4 alleged encroachment is set aside. However, it is clarified that this will not stand in the way of respondents 2 to 4 from initiating fresh proceedings against the petitioner in compliance with the provisions contained in the Kerala Land Conservancy Act. Writ petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/