Kerala High Court
Thommy George @ Raju vs State Of Kerala on 6 November, 2020
Equivalent citations: AIRONLINE 2020 KER 1222
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 06TH DAY OF NOVEMBER 2020 / 15TH KARTHIKA, 1942
WP(C).No.21675 OF 2020(H)
PETITIONER/S:
THOMMY GEORGE @ RAJU,
AGED 53 YEARS,
S/O. LATE THOMAS GEORGE, KALARICKAL HOUSE, KAVUMBHAGOM P.O.,
PERINGOL MURI, KAVUMBHAGOM VILLAGE, THIRUVALLA TALUK,
PATHANAMTHITTA DISTRICT.
BY ADVS.
SRI.P.HARIDAS
SRI.BIJU HARIHARAN
SRI.R.B.BALACHANDRAN
SRI.RENJI GEORGE CHERIAN
SRI.P.C.SHIJIN
SRI.RISHIKESH HARIDAS
RESPONDENT/S:
1 STATE OF KERALA,
REP BY SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.
2 THE LAND REVENUE COMMISSIONER,
OFFICE OF THE COMMISSIONER OF LAND REVENUE, PUBLIC OFFICE
BUILDING, MUSEUM ROAD, OPPOSITE ZOO, VIKHAS BHAVAN P.O.,
THIRUVANANTHAPURAM, PIN-695 033.
3 THE DISTRICT COLLECTOR,
PATHANAMTHITTA, COLLECTORATE, PATHANAMTHITTA,PIN-689 645.
4 EXECUTIVE ENGINEER,
PWD ROADS, PWD OFFICE COMPLEX,PATHANAMTHITTA,PIN-689 645.
5 ASST.EXECUTIVE ENGINEER,
PWD ROADS, SUB DIVISION, PWD OFFICE COMPLEX, THIRUVALLA, PIN-
689 101.
* ADDL.R6 AND R7 IMPLEADED:
6 REVENUE DIVISIONAL OFFICER, OFFICE OF THE REVENUE DIVISIONAL
OFFICER, THIRUVALLA, PIN-689 101.
7 TAHSILDAR (LAND ASSIGNMENT), PATHANAMTHITTA, COLLECTORATE,
PATHANAMTHITTA, PIN-689 645.
* ADDITIONAL RESPONDENT NOS.6 AND 7 ARE IMPLEADED AS PER ORDER
DATED 06.11.2020 IN I.A.NO.2 OF 2020.
BY SR.GOVERNMENT PLEADER SRI K P HARISH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.11.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.21675 OF 2020 2
JUDGMENT
Being aggrieved by Ext.P10 notice issued under Rule 13A of the Kerala Land Conservancy Rules, 1958, calling upon the petitioner to remove the unauthorised occupation of road puramboke, he has approached this Court with this writ petition seeking to quash the same and for a further direction to the 2nd respondent to dispose of Ext.P9 appeal filed under Rule 18 of the Rules for Assignment of Land within Municipal and Corporation Areas Rules, 1995 (for short 'Rules, 1995').
2. It is the case of the petitioner that he is in possession and occupation of 1.5 cents of property comprised in Re-survey No.30 in Block No. 12 of Kavumbhagom Village. He states that he is running a shop in the said property. The property is situated on the eastern side of the road leading from Kavumbhagom to Idinjilam. The said property is also abutting the Peringol - Utramel Municipal road which passes through the northern side of the shop room in the east west direction. According to the petitioner, he has been remitting property tax as well as licence fees with the Thiruvalla Municipality as is evident from Ext.P1 and Ext.P2 respectively. He contends that though the property has been in the possession of the petitioner and his predecessors for over hundred years, the respondents have been treating the property as a puramboke. The petitioner has been paying prohibitory tax as is evident from Ext.P3. It is contended that for the purpose of widening the Kavumbhagom - Idinjilam road, Ext.P5 notice was issued by the 5th respondent invoking the provisions of Section WP(C).No.21675 OF 2020 3 15 of the Land Conservancy Act, 1957. Being aggrieved, the petitioner approached this Court and filed W.P.(C) No.12210 of 2020 and pending consideration of the application, he preferred Ext.P6 application seeking assignment under the Assignment of Land within Municipal and Corporation Areas Rules, 1995. This Court, by judgment dated 21.7.2020, disposed of the writ petition directing the District Collector to consider his request for assignment in an expeditious manner. The petitioner states that the District Collector relegated the matter to the Deputy Collector (LR), who in turn rejected the application filed by the petitioner for assignment by issuing Ext.P7 order. Challenging the said order, the petitioner has preferred Ext.P9 appeal before the 2nd respondent. However, while the appeal is pending as aforesaid, Ext.P10 notice was issued by the 5th respondent calling upon the petitioner herein to remove the encroachment within a period of 48 hours. The said notice is under challenge.
3. In the statement filed by the 3rd respondent it is stated that the petitioner has sought for assignment of land comprised in Block No. 12 in Survey No. 30 of Kavumbhagom Village which is the Municipal road. The property which has been encroached upon by the petitioner is comprised in Sy. No. 1 in Block No. 13 of Kavumbhagom village. When survey was conducted, it was revealed that the petitioner has encroached upon 19 sq. mts. of Puramboke land and he has constructed a shop building as well. It is pointed out that when the revenue authorities found that the petitioner had encroached upon road puramboke, a land conservancy case was booked against the petitioner as L.C.No.58/62 and a fine of Rs.1 per year is being realized from the petitioner every year as Nirodhana Karam WP(C).No.21675 OF 2020 4 (Prohibitory assessment). The widening of the Kavumbhagom - Idinjilam road was taken up and included in the KIFBI scheme and notice to the petitioner was issued when it was noticed on detailed survey that he has been occupying a vital portion of the road on the corner where the Perongol - Utramel Municipal road touches the Kavumbhagom - Idinjilam road. On receipt of the notice, the petitioner had approached this Court and by Ext.P7 judgment , the respondents were directed to consider the request for assignment of land. It is stated by the respondents that only in cases wherein the property can be assigned without detriment to the Government or public interest can the property be assigned under the Rules of 1995. It is pointed out that the land on the sides of the road required for widening cannot be assigned as provided under Rule 6 (v) of the Rules, 1995. As directed by this Court, the District Collector considered the request for assignment and after hearing all the stakeholders had rejected the request. According to the 3rd respondent, the property which has been encroached upon by the petitioner and in respect of which he has been paying prohibitory assessment is required for the widening of the road and in public interest. It is further stated that since the provisions of Rules, 1995 prohibits assignment of puramboke property if the same is required for widening of the road, the District Collector was well justified in rejecting his application.
4. After the filing of the counter, the petitioner has filed a petition for accepting additional documents. The petitioner states that it is based on the submission made by the learned Government Pleader that he had approached the District Collector and had filed the application for assignment under the Rules of WP(C).No.21675 OF 2020 5 1995. Now that the said application has been rejected, he has now approached the Revenue Divisional Officer, Thiruvalla as well as the Tahsildar (Land Assignment), Pathanamthitta, seeking assignment of land under the Kerala Land Assignment Act , 1960.
5. I have heard Sri P. Haridas, the learned counsel appearing for the petitioner and the learned Government Pleader and I have considered the submissions advanced.
6. Ext.P8 is the order passed by the District Collector rejecting the request of the petitioner for assignment of the road puramboke under the Rules, 1995. There is no dispute with regard to the fact that property possessed by the petitioner forms part of the Puramboke land and lies adjacent to the Kavumbhagom - Idinjilam road. This fact is admitted by the petitioner as well. Rule 8 of the Kerala Land Conservancy Rules, 1958 provides that assessment shall be imposed in all cases of unauthorised occupation of Government land. Ext.P3 receipt would reveal that the petitioner has been paying prohibitory assessment for his unauthorised occupation of Government land.
7. The materials produced before this Court suggests that the Kavumbhagom - Idinjilam road is being widened as part of the development scheme of the local authority. The sketches produced by the petitioner as well as the respondent reveals that the property possessed by the petitioner is situated in an area where one road intersects the other. The only question is whether the property by the side of the Municipal road can be assigned either under the 1995 Rules or under the Assignment Rules.
WP(C).No.21675 OF 2020 6
8. Under Section 3 of the Land Assignment Act, 1960, no Government land assignable for public purpose can be assigned under subsection (1) of Section 3 without consulting the local authority as defined in the Kerala Panchayat Raj Act, 1994 or the Kerala Municipality Act, 1994, as the case may be, and if such local authority requires such land for carrying out any of the functions assigned to it, the Government is to set apart for such land for such purpose. Under Rule 11 of the Kerala Land Assignment Rules, 1964, land on the sides of the road required for widening of the roads cannot be included in the list of assignable lands. If the land is situated within Municipal and Corporation areas, the land can be assigned only by complying with the provisions of the Rules of 1995 which also prohibits assignment of land by the side of roads. Ext.P8 order was passed by the District Collector after hearing the revenue authorities, the local authorities, the Executive Engineer (PWD) and a neighbour of the petitioner who intervened. The Secretary of the local authority had also requested that the encroached portion shall not be assigned as the area encroached upon by the petitioner was required for widening of the road. The District Collector had considered all the relevant aspects and had held that the encroached portion, in respect of which prohibitory assessment is being paid by the petitioner cannot be assigned invoking the Rules of 1995.
9. It is after the filing of Exhibit P9 appeal did the petitioner realise that the encroached property being situated by the side of the road, is not assignable. It is in the afore circumstances that he has preferred Exhibit P11 under the Rule 11 (6) and 16 (1) of the Kerala Land Assignment Rules, 1964. (Rules, 1964' for short)
10. Rule 11 of Rule 1964 deals with the List of Assignable Land to be WP(C).No.21675 OF 2020 7 prepared by the Government. The sub clause (i) to (v) of Rule 11 (2) specifically provides that land required for present or future Government purposes as well as land on the sides of the roads required for widening of roads cannot be included in the list of assignable lands. In that view of the matter, I am satisfied that there is no merit in the contentions raised by the petitioner in this writ petition. The encroached land is required for a bona fide public purpose and hence, no interference is warranted.
This petition is dismissed.
SD/-
RAJA VIJAYARAGHAVAN V JUDGE PS WP(C).No.21675 OF 2020 8 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PROPERTY TAX RECEIPT
DATED 23.9.2019.
EXHIBIT P2 TRUE COPY OF THE RECEIPT OF REMITTANCE OF
D & O LICENCE FEE DATED 13.2.2020
EXHIBIT P3 TRUE COPY OF THE RECEIPT OF PROHIBITORY
TAX DATED 21.3.2009.
EXHIBIT P4 TRUE COPY OF THE ROUGH SKETCH SHOWING THE
ROAD, PETITIONERS PROPERTY AND ADJACENT
PROPERTY.
EXHIBIT P5 TRUE COPY OF THE NOTICE ISSUED BY THE 5TH
RESPONDENT DATED NIL.
EXHIBIT P6 TRUE COPY OF THE ASSIGNMENT APPLICATION
SUBMITTED TO 3RD RESPONDENT DATED
16.7.2020.
EXHIBIT P7 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
COURT IN WPC 12210/2020 DATED 21.07.2020
EXHIBIT P8 TRUE COPY OF THE ORDER OF THE 3RD
RESPONDENT DATED IS 08.10.2020
EXHIBIT P9 TRUE COPY OF THE APPEAL SUBMITTED BY
PETITIONER BEFORE THE 2ND RESPONDENT,
DATED 12.10.2020.
EXHIBIT P10 TRUE COPY OF THE NOTICE ISSUED BY 5TH
RESPONDENT TO THE PETITIONER DATED
12.10.2020.
EXHIBIT P11 TRUE COPY OF THE ASSIGNMENT APPLICATION
SUBMITTED BEFORE THE REVENUE DIVISIONAL
OFFICER, THIRUVALLA DATED 18/06/2020.
EXHIBIT P12 TRUE COPY OF THE ASSIGNMENT APPLICATION
SUBMITTED BEFORE THE TAHSILDAR (LAND
ASSIGNMENT), PATHANAMTHITTA DATED
18/06/2020.
WP(C).No.21675 OF 2020 9
RESPONDENT'S/S EXHIBITS:
ANNEXURE R3(A) A TRUE COPY OF THE DEMARCATION
SKETCH AND POTOGRAPHS.
//TRUE COPY// P.S.TO JUDGE