Kerala High Court
Public Works Department vs K.M. Anil Kumar on 1 July, 2013
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
MONDAY,THE 11TH DAY OF NOVEMBER 2013/20TH KARTHIKA, 1935
OP(C).No. 3918 of 2013 (O)
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(AGAINST THE ORDER IN IA NO. 6780/2013 IN OS 626/2013 OF II ADDL.MUNSIFF
COURT THRISSUR DATED 01-07-2013)
PETITIONER(S):-
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1. PUBLIC WORKS DEPARTMENT,REPRESENTED BY
EXECUTIVE EXGINEER,PUBLIC WORKS DEPARTMENT,
CHEMBUKKAVU, THRISSUR.
2. ASSISTANT EXECUTIVE ENGINEER,
PUBLIC WORKS DEPARTMENT,
ROAD SECTION CHEMBUKKAVU, THRISSUR.
3. KERALA GOVERNMENT REPRESENTED BY,
DISTRICT COLLECTOR, THRISSUR.
BY ADV .SENIOR GOVERNMENT PLEADER SMT. LILLY LESLIE
RESPONDENT:-
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K.M. ANIL KUMAR,S/O KATTEDATHVEETTIL,
MADHAVAN NAIR, MUNDOOR DESOM,
ANJOOR VILLAGE, THRISSUR.
BY ADV. SRI.P.B.KRISHNAN
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11-11-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-
KKS
OPC 3918 OF 2013 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS:-
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EXHIBIT-P1-TRUE COPY OF THE SAID NOTICE DATED 01/02/2013 ISSUED
UNDER RULE 13 AOF THE LAND CONSERVANCY RULE.
EXHIBIT-P2-TRUE COPY OF THE PLAINT IN O.S 626/13.
EXHIBIT-P3-TRUE COPY OF THE I.A 6780/2013.
EXHIBIT-P4-TRUE COPY OF THE COMMON ORDER DATED 01/07/2013
IN I.A 6780/2013.
RESPONDENT(S)' EXHIBITS:- NIL
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//TRUE COPY//
P.S.TO JUDGE
KKS
P.N.RAVINDRAN, J.
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O.P.(C)No.3918 of 2013
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Dated this the 11th day of November, 2013
JUDGMENT
The petitioners are the defendants in O.S.No.626 of 2013 on the file of the Court of the II Additional Munsiff of Thrissur. The sole respondent is the plaintiff therein. The suit instituted by the respondent is for a permanent prohibitory injunction restraining the defendants or their men from trespassing upon the plaint schedule property or from demolishing the structures therein or from cutting and removing trees therefrom or from annexing any part thereof to the public road situate on the western boundary thereof.
2. The plaint schedule property is described as a parcel of land, 10.297 cents in extent of Kaiparambu Grama Panchayat, situate in Anjoor Village, Thrissur Taluk, Thrissur District. The plaintiff has in the plaint, more particularly paragraphs 3 and 6 thereof averred in categorical terms that the plaint schedule property is not Government land or poramboke and that it is his private holding. He has also specifically alleged that the Kerala Land Conservancy Act, 1957 (hereinafter referred to as "the Act" for short) has no application to the said parcel of land. Upon receipt of O.P.(C)No.3918 of 2013 2 summons, the defendants entered appearance and filed I.A.No.6780 of 2013 (Ext.P3) praying that the plaint may be rejected on the ground that the suit is barred under the Act. The trial court considered the said application along with similar applications filed in eight other cases and rejected all the applications by Ext.P4 common order passed on 1.7.2013. It was held that section 20A of the Act does not operate as a bar to the suit and therefore the plaint is not liable to be rejected. The trial court also held that a plaint can be rejected under Order VII rule 11(d) of the Code of Civil Procedure only if from the statements in the plaint, the suit appears to be barred by any law in force and that from the statements in the plaint it cannot be said that the suit is barred under any law in force including the Act. The said order is under challenge in this original petition.
3. I heard Smt.Lilly Leslie, learned Senior Government Pleader appearing for the petitioners and Sri.P.B.Krishnan, learned counsel appearing for the respondent. I have also gone through the pleadings and the materials on record. A reading of Ext.P2 plaint discloses that it was filed in the wake of Ext.P1 notice issued under the Act. The plaintiff had however averred in the plaint that the plaint schedule property in respect of which Ext.P1 notice was O.P.(C)No.3918 of 2013 3 issued is not Government land or poramboke to which the Act has application. The specific case set out in the plaint in O.S.No.626 of 2013, more particularly paragraphs 3 and 6 thereof, is that the plaint schedule property is private land belonging to the plaintiff and not Government land or poramboke belonging to the Government. The plaintiff had also averred that the rights if any of the Government have been lost by adverse possession and limitation.
4. Upon receipt of summons, the defendants entered appearance and filed I.A.No.6780 of 2013 contending that the subject matter of the suit is governed by the Act and under the provisions thereof, a civil suit is barred. They prayed for an order rejecting the plaint on that ground. When the said application came up before the court below, the District Government Pleader appearing for the defendants submitted that the defendants are pressing for a rejection of the plaint Order VII rule 11(d) of the Code of Civil Procedure. The trial court thereupon proceeded to consider the question whether on the averments in the plaint it can be said that the suit is barred under the provisions contained in the Act. After considering the pleadings, the court below held that the instant suit is not barred under the provisions contained in section 20A of the Act. In my opinion, the impugned order does not merit O.P.(C)No.3918 of 2013 4 interference at all.
5. As stated earlier, the plaintiff has in paragraphs 3 and 6 of the plaint in O.S.No.626 of 2013 averred in categorical terms that the plaint schedule property is not Government land or poramboke land but his private land. Whether the case set out by the plaintiff is true or not can be decided only after trial. Section 20 of the Act stipulates that no suit against the Government shall be entertained in any civil court in respect of any order passed under the Act except upon the ground that the land in respect of which such order has been passed is not a land which is the property of the Government whether a poramboke or not. The proviso to section 20 of the Act stipulates that the civil court shall not take cognizance of any such suit unless it is instituted within one year from the date on which the cause of action arose. It is evident from section 20 of the Act that a suit against the Government will certainly lie at the instance of a person who is aggrieved by an order passed under the Act subject to two conditions. The first is that it should be instituted within one year from the date on which the cause of action arose. The second is that the plaintiff in such a suit should have a claim that the land in respect of which the order is issued is not the property of the Government whether poramboke or not. In the O.P.(C)No.3918 of 2013 5 instant case, the plaintiff has averred in categorical terms that the plaint schedule property is his private holding and not Government land or poramboke. In the light of section 20 of the Act, on the averments in the plaint it cannot be said that the instant suit is barred under the Act. The bar under section 20A of the Act applies only to a suit instituted in respect of lands which are admittedly the property of the Government whether poramboke or not or in respect of proceedings for recovery of fine or other sum due under the Act. I am therefore of the considered opinion that the court below was perfectly right in holding that on the averments in the plaint it cannot be said that the suit is barred under the provisions of the Act.
I accordingly hold that there is no merit in the instant original petition. It fails and is dismissed.
P.N.RAVINDRAN JUDGE vpv