Kerala High Court
Prabhukumar vs The State Of Kerala
Author: Anu Sivaraman
Bench: P.R.Ramachandra Menon, Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY,THE 11TH DAY OF NOVEMBER 2016/20TH KARTHIKA, 1938
WP(C).No. 5025 of 2010 (C)
---------------------------
PETITIONER :
--------------------
PRABHUKUMAR, S/O.GOVINDA PILLAI,AGED 34 YEARS,
PAINGATTAZHIKATHU, PORUVAZHI, KOLLAM.
BY ADVS.SRI.LEO GEORGE
SRI.K.P.SUJESH KUMAR
RESPONDENT(S):
-----------------------------
1. THE STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
2. THE DISTRICT COLLECTOR, KOLLAM.
3. THE TAHSILDAR, KUNNATHUR TALUK,
KOLLAM.
4. THE TRAVANCORE DEVASWAM BOARD,
REPRESENTED BY ITS SECRETARY,
TRAVANCORE DEVASWAM BOARD,
THIRUVANANTHAPURAM.
*ADDL.R5 IMPLEADED
*ADDL.R5: THE SPECIAL TAHASILDAR
FOR KERALA LAND CONVERVANCY UNIT OF TRAVANCORE
DEVASWAM BOARD, TRAVANCORE DEVASWAM BOARD,
NANTHANCODE, THIRUVANANTHAPURAM.
*ADDL.R5 IS IMPLEADED VIDE ORDER DATED 25/3/10 IN IA.NO.4111/10.
R1 TO R3,ADDL.R5 BY GOVERNMENT PLEADER SRI.E.S.ASHRAF
R4 BY ADV. SRI.NAGARAJ NARAYANAN, SC, TDB
SRI.K.N.VENUGOPALA PANICKER, SC, TDB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 11-11-2016, ALONG WITH WPC.NO. 7899/2010, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
WP(C).NO.5025/2010
APPENDIX
PETITIONER'S EXHIBITS:
P1 COPY OF THE ORDER PASSED BY THIS HONOURABLE COURT IN
WPC.NO.34537/2007 DATED 17/12/2007.
P2 COPY OF THE JUDGMENT IN WPC.NO.34537/2007 DATED 11/2/2008.
P3 COPY OF THE ORDER PASSED BY THE THIRD RESPONDENT BEARING
NO.A4-5000/05, DATED 25/8/2009.
P4 COPY OF THE ORDER NO.N6-16255/05/K.DIS PASSED BY THE SECOND
RESPONDENT DATED 14/1/2009.
P5 COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.439/2009 OF
SOORANAD POLICE STATION DATED 11/10/2009.
RESPONDENT'S EXHIBITS: NIL
/TRUE COPY/
P.A.TO JUDGE
sts
P.R.RAMACHANDRA MENON &
ANU SIVARAMAN, JJ.
= = = = = = = = = = = = = = =
W.P.(C).Nos.5025 & 7899 of 2010
= = = = = = = = = = = = = = =
Dated this the 11th day of November, 2016
JUDGMENT
P.R.Ramachandra Menon, J
1.Common cause of action is involved in both these writ petitions and hence they are dealt with together.
2.W.P.(C).No.7899/2010 has been filed by the Travancore Devaswom Board seeking to issue a writ of mandamus directing the 40th respondent-Special Tahsildar to take appropriate action to evict respondents 5 to 37 and remove their encroachments from the Devaswom land comprised in Survey No.478/7 (Block No.5, Re-survey No.93) of Poruvazhy village and Survey Nos.62/1 and 62/7 (Block No.2, Re-survey No.909/7, 910, 914) of Sooranadu North village and to direct respondents 1 to 4, 38 and 39 to afford sufficient assistance in effecting eviction within a time frame to be stipulated by this Court.
W.P.(C).Nos.5025 & 7899 /2010 2
3.W.P.(C).No.5025 of 2010 has been preferred by one of the devotees of Chakkuvally Sree Parabrahma Temple, who himself happens to be the Secretary of the Temple Advisory Committee constituted by the Travancore Devaswom Board for the Temple. It is stated that large extent of properties are owned by the Temple and the Devaswom and because of laxity on the part of the officers of the Board, a lot of encroachments have been effected and there has been callous inaction on the part of the authorities of the Board in getting the encroachers evicted. It is stated that, pursuant to the steps taken by the statutory authorities, eviction has been ordered and the proceedings have become final, but the same has not been given effect to. It is in the said circumstances, that the petitioner has approached this Court seeking for issuance of writ of mandamus directing respondents 2 and 3 (District Collector and Tahsildar respectively) to implement Exhibit P3 order passed by the 3rd respondent as the authority under the Land Conservancy Act within a time frame.
W.P.(C).Nos.5025 & 7899 /2010 3
4.It is seen that the Travancore Devaswom Board had approached this Court earlier by filing W.P.(C).No.34537 of 2007, wherein an interim order was passed on 17.12.2007 with reference to the outcome of the civil litigations, holding that the properties concerned belonged to the Devaswom and an obligation was cast upon the Devaswom, the Court, the District Collector and also Police officials to see that the Devaswom properties were protected. Reference was also made to the verdict passed by the Apex Court in Gopalakrishnan v. Cochin Devaswom Board and others [ILR 2007(4) Kerala 181], holding that the properties of Deities, Temples and Devaswom Boards etc.required to be protected and safeguarded by their Trustees/ Archaks/Sabits/Employees. It was accordingly that the District Collector was directed as per interim order to initiate land conservancy proceedings against the encroachers and take steps to recover the properties and entrust the same with the Devaswom, after issuing notice to the then occupants, also causing police aid to evict the encroachers.
W.P.(C).Nos.5025 & 7899 /2010 4
5.When the said matter came up for further consideration on 11.02.2008, the position was noted and the writ petition was disposed of, virtually making the interim order absolute.
6.Pursuant to the said proceedings, the statutory authority, i.e., the Tahasildar issued notice to all concerned and the proceedings were finalised by passing Exhibit P11 in W.P.(C). No.7899/2010, ordering eviction. The said order was challenged by filing various writ petitions before this Court, which were disposed as per Exhibit P12 verdict on 09.04.2008, setting aside the impugned orders for non-compliance of the principles of natural justice, and directing the 1st respondent, i.e.,Additional Tahsildar to consider the matter afresh, after affording an opportunity of hearing to the writ petitioners to prove their contentions. This was sought to be reviewed by the Travancore Devaswom Board by filing various review petitions which were disposed of as per Exhibits P13 to P15, holding that an opportunity of hearing had to be given to the Devaswom Board as well, along with notice to be issued to the W.P.(C).Nos.5025 & 7899 /2010 5 occupants. It was pursuant to the said proceedings that the matter was considered by the competent authority ,i.e., the Additional Tahsildar, Kunnathur, who passed Exhibit P16 order dated 25.08.2008 ordering eviction.
7.Met with the circumstances, the aggrieved parties/ encroachers/occupants sought to file an appeal under the Kerala Land Conservancy Act. After hearing both the sides, interference was declined and the appeal was dismissed as per Exhibit P17 order, pursuant to which further proceedings were taken by Tahsildar. It however remains a fact that the proceedings could not be taken to the logical conclusion by effecting eviction, which made the Devaswom and other petitioners to approach this Court by filing the above writ petitions with the prayers as mentioned already.
8.It is revealed from the proceedings that the matters were finally heard and judgment was pronounced by another Bench of this Court. But subsequently, on 19.12.2011, it was brought to the notice of the Bench that a revision petition had already W.P.(C).Nos.5025 & 7899 /2010 6 been preferred against the verdict passed by the appellate authority under the Land Conservancy Act and that the same was pending consideration. In such circumstances, the Bench observed that the judgment required to be recalled and accordingly, the verdict passed on 15.12.2011 was recalled and writ petitions were posted for further consideration.
9.When the matter came up for consideration before this Court recently, a submission was made on the part of the Board and supported from the part of the Government, that the statutory revision petiton preferred against the appellate order before the Commissioner of Land Revenue had already been considered and finalised by the Commissioner years ago. It was also submitted that the revision petition itself was filed with inordinate delay and after considering the fact that no satisfactory explanation was offered to condone the delay, the Commissioner declined interference and the revision petition was dismissed vide Order dated 19.03.2013 (a copy of which was produced by One Biju Kumar by filing I.A.No.13225 of 2013 in W.P.(C).No.7899 of 2010 seeking to implead him in the W.P.(C).Nos.5025 & 7899 /2010 7 proceedings). It was accordingly, that the matters were adjourned, to be taken up on 31.08.2016.
10.Today, when the matters are taken up for final hearing, nothing is brought on record to hold that the submission made across the Bar on the last posting as to the finalisation of the matter pursuant to the dismissal of the revision petition by the Commissioner of Land Revenue is not correct. If the proceedings have already been finalised as above, and no revision petition is pending, consequential steps have necessarily to be taken to see that the encroachers/occupants are evicted from the properties concerned forthwith, giving effect to Exhibit P3 order.
11.In the above circumstances, there will be a direction to the respondents 1 to 3 and 40 in W.P.(C).No.7899 of 2010 who happen to be respondents 1 to 3 and Additional respondent 5 in W.P.(C).No.5025 of 2010, to take all necessary steps to evict the respondents 5 to 37 in W.P.(C).No.7899 of 2010 and to remove the encroachments from the land concerned as dealt W.P.(C).Nos.5025 & 7899 /2010 8 with already, and to entrust the properties to the Devaswom forthwith, at the earliest, at any rate within one month from the date of receipt of a copy of this judgment. It will be for respondents 38 and 39 and officers under them to give effective 'police protection' to implement the direction as above and any laxity in this regard will be taken serious note of to be dealt with by way of appropriate proceedings in the due course. After completing the eviction proceedings, a report shall be submitted before this Court by the 2nd respondent-District Collector within one week thereafter. These writ petitions are disposed of accordingly.
sd/-
P.R.Ramachandra Menon, Judge sd/-
Anu Sivaraman, Judge sj