Kerala High Court
The President vs The Tahsildar (Lr) on 19 February, 2019
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940
WP(C).No.29384 of 2017
PETITIONER/S:
1 THE PRESIDENT, PANDARAPARAMBIL DHARMADHAIVA TRUST,
POONJIKKARA, MULAVUKKAD P.O.-682 504, THROUGH ITS
PRESIDENT P.B.KAILASAN, S/O. BHAHULAYAN, AGED 60
YEARS, RESIDING AT PALLATHUPARAMBIL POONJIKKARA,
MULAVUKKAD P.O., ERNAKULAM DIST.- 682 504.
2 THE SECRETARY, PANDARAPARAMBIL DHARMADHAIVA TRUST,
POONJIKKARA, MULAVUKKAD P.O.-682 504 THROUGH ITS
SECRETARY P.B. RACHANAN, S/O. BHAHULEYAN, AGED 48
YEARS, RESIDING AT PALLATHUPARAMBIL POONJIKKARA DESOM,
MULAVUKKAD VILLAGE, KANAYANNOOR TALUK, MULAVUKAD P.O.
ERNAKULAM DIST- 682 504.
BY ADVS.
SRI.K.M.FIROZ
SMT.M.SHAJNA
SMT.UMMUL FIDA
SRI.E.C.AHAMED FAZIL
RESPONDENT/S:
1 THE TAHSILDAR (LR), TALUK OFFICE, KANAYANNOOR, NEAR
SIVA TEMPLE, ERNAKULAM- 682 011.
2 THE VILLAGE OFFICER, MULAVUKADU, MULAVUKADU P.O.,
ERNAKULAM DIST.- 682 504.
3 THE REVENUE DIVISIONAL OFFICER, OFFICE OF THE REVENUE
DIVISIONAL OFFICER, ERNAKULAM, FIRST FLOOR, KB JACOB
ROAD, FORT KOCHI, KERALA- 682 001.
4 THE DISTRICT COLLECTOR, CIVIL STATION, ERNAKULAM,
KAKKANAD-682 030.
5 THE STATE OF KERALA, REP. BY ITS SECRETARY, REVENUE
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695 036.
WP(C).Nos.29384/2017 & 13419/2018 2
6 GOSHREE ISLANDS DEVELOPMENT AUTHORITY (GIDA),
CHATHIYATH ROAD, ERNAKULAM, REP. BY ITS SECRETARY-
682 031.
7 COCHIN PORT TRUST, WILLINGTON ISLAND, ERNAKULAM,
REP. BY ITS CHAIRMAN- 682 003.
ADDL.R8 SUKUMAR K. PANICKER, A 101-102, SYMPHONY CHS LTD.,
CHANDIVALI FARM ROAD, CHANDIVALI, ANDHERI EAST,
MUMBAI- 400 072, MAHARASHTRA STATE(IS IMPLEADED AS
THE ADDL.R8 AS PER ORDER DATED 11.01.2018 IN
I.A.NO.20738/2017 IN W.P.(C) NO.29384/2017).
BY ADVS.
SRI.V.ABRAHAM MARKOS
SRI.VARGHESE K.PAUL, SC, GOSHREE ISLANDS DEVP.
AUTHORITY
SRI.C.P.PRADEEP KUMAR, GOVERNMENT PLEADER
SMT.T.B.MINI
SRI.ABRAHAM JOSEPH MARKOS
SRI.HARAN THOMAS GEORGE
SRI.ISAAC THOMAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
19.02.2019, ALONG WITH WP(C).13419/2018, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C).Nos.29384/2017 & 13419/2018 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940
WP(C).No.13419 of 2018
PETITIONER/S:
SUKUMAR K. PANICKER, AGED 55 YEARS,
A 101-102, SYMPHONY CHS LTD.CHANDIVALI FARM ROAD,
CHANDIVALI, ANDHERI EAST, MUMBAI- 400 072,
MAHARASHTRA STATE.
BY ADV. SMT.T.B.MINI
RESPONDENT/S:
1 DISTRICT COLLECTOR, CIVIL STATION, ERNAKULAM,
KAKKANAD- 682 030.
2 GOSHREE ISLANDS DEVELOPMENT AUTHORITY (GIDA)
CHATHIYATH ROAD, ERNAKULAM, REPRESENTED BY ITS
SECRETARY- 682 031.
3 COCHIN PORT TRUST, WILLINGTON ISLAND, ERNAKULAM,
REPRESENTED BY ITS CHAIRMAN-682 003.
4 THE PRESIDENT, PANDARAPARAMBIL DHARMADHAIVA TRUST,
POONJIKKARA, MULAVUKAD P.O. 682 504, THROUGH ITS
PRESIDENT PB KAILSASAN, S/O BAHULEYAN, AGED 60
YEARS, RESIDING AT PALLATHUPARAMBIL, POONJIKKARA,
MULAVUKAD P.O., ERNAKULAM DISTRICT- 682 504.
5 THE SECRETARY, PANDARAPARAMBIL DHARMADHAIVA TRUST,
POONJIKKARA, MULAVUKAD P.O. 682 504, THROUGH ITS
SECRETARY PB RACHANAN, S/O BAHULEYAN, AGED 48
YEARS, RESIDING AT PALLATHUPARAMBIL, POONJIKKARA
DESOM, MULAVUKAD P.O. ERNAKULAM DISTRICT- 682 504.
WP(C).Nos.29384/2017 & 13419/2018 4
6 THE TAHSILDAR (LR), TALUK OFFICE, KANAYANNOOR, NEAR
SIVA TEMPLE, ERNAKULAM- 682 011
7 THE VILLAGE OFFICER, MULAVUKADU, MULAVUKADU, P.O.,
ERNAKULAM DISTRICT-682 504.
8 THE REVENUE DIVISIONAL OFFICER, OFFICE OF THE
REVENUE DIVISIONAL OFFICER, ERNAKULAM, FIRST FLOOR,
KB JACOB ROAD, FORT KOCHI, KOCHI, KERALA - 682 001.
BY ADVS.
SRI.C.P.PRADEEP KUMAR, GOVERNMENT PLEADER
SRI.VARGHESE K.PAUL
SRI.ABRAHAM JOSEPH MARKOS SC COCHIN PORT TRUST
SRI.ISAAC THOMAS SC COCHIN PORT TRUST
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
19.02.2019, ALONG WITH WP(C).29384/2017, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C).Nos.29384/2017 & 13419/2018 5
JUDGMENT
[ WP(C).29384/2017, WP(C).13419/2018 ] The issue in these writ petitions is in regard to the alleged encroachment by Pandaraparambil Dharmadhaiva Trust. The said Trust approached this Court in W.P.(C) No.29384/2017 challenging a notice issued under the Kerala Land Conservancy Act, 1957. There is a stay against eviction. W.P.(C) No.13419/2018 is filed by Sri.Sukumar K.Panicker alleging that the Trust is constructing illegal structure for temple.
2. In these matters, Goshree Islands Development Authority (GIDA) and Cochin Port Trust are parties. They have filed statements. In the statement filed by GIDA in W.P.(C) No.13419/2018 in paragraphs 5 and 13, it is stated as follows:
"5. It is submitted that, an extent of 4.50 Ares of property in Re.Sy.No.284/12 of Mulavukadu Village was owned by Smt.Bhanumathi Sivaraman and out of which, an extent of 4.41 Ares was acquired and the same was subdivided as Re.Sy.No.284/15, and handed over to GIDA. GIDA further handed over the property to Cochin Port Trust, who is the third respondent herein, for constructing bridges and approaches and subsequently upon constructing the bridges the same was opened for traffic in 2005. After acquisition, the WP(C).Nos.29384/2017 & 13419/2018 6 acquired property becomes 'puramboke land' and ownership of all 'puramboke lands' are vested with the Government. The 6th respondent Tahsildar is competent to evict the unauthorised occupation of Government land.
13. Again vide notice dated 11.08.2017, the Tahsildar (LR) informed the petitioner Trust and GIDA, that enquiry in this matter will be held on 16.08.2017. Pursuant to that, hearing was held in which, GIDA stated that there is encroachment over GIDA land and requested to take steps to remove the same. Subsequently, 6th respondent issued Ext.P12 notice to the 4th respondent to remove the encroachment on or before 07.09.2017 at 5 pm."
3. In the counter affidavit filed by the Port Trust in W.P.(C) No.13419/2018 in paragraph- 6 it is stated as follows:
The averments in paragraph 9 that the petitioner had applied to this Respondent to get information regarding the ownership of the property where the illegal construction has been made, is correct. The Chairman of this Respondent had given Exhibit P11 reply stating that the area had been inspected and that the area under encroachment is not Port's land. It was further informed that since no Port land was encroached upon the 3rd respondent could not intervene in the matter.
4. In the counter affidavit filed by the Tahsildar, Kanayannoor Taluk in W.P.(C) No.29384/2017 in paragraph-11 it is stated as WP(C).Nos.29384/2017 & 13419/2018 7 follows:
"The properties in Survey No.284/12, 13, 14, 15 were measured by the Taluk Surveyor and it is found that the petitioner is occupying 0.49 Ares of land comprised in Survey 284/12, 13, 15 out which they have document right over 0.09 Ares comprised in Survey 284/12. The petitioner have encroached 0.35 Ares in Resurvey 284/15 and 0.05 Ares in Resurvey 284/13. A true copy of the Survey Sketch is produced herewith and marked as Exhibit R1(b). The decision taken on the hearing dated 16.08.2017 was based on the Suomotu willingness expressed by the second petitioner and the notice was issued in good faith to protect the interest of the Government and public. Personal hearing was given to the second petitioner but he never raised any objection and was aware of the mistake made by him. The Taluk Surveyor surveyed the land and prepared a sketch, demarcating the extent of encroachment, which was known to the second petitioner and he never made any objection during the hearing held on 16.08.2017."
5. There are two issues in this matter. The first issue is alleged encroachment. The learned counsel for the Trust would submit that the land belonged to them. The other issue is construction of a temple. No place of worship can be constructed without obtaining permission from the District Collector.
6. Having considered the statements of official respondents as above, I am of the view WP(C).Nos.29384/2017 & 13419/2018 8 that the District Collector shall address this issue. The District Collector shall pass appropriate orders after hearing the parties and determining the land. If it is found that the Trust has encroached upon the property and constructed a temple, he shall also ensure that such encroachments are removed. Till a decision is taken by the District Collector, no construction shall be undertaken by the Trust. The District Collector can also rely upon the sketch already drawn by the Tahsildar. The parties are also free to raise their objections in regard to sketch prepared. Appropriate decision shall be taken within a period of three months. It is made clear that if the Trust is found engaged in any construction in the meanwhile, the official respondents shall ensure that such activities are stopped immediately.
These writ petitions are disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE JUDGE WP(C).Nos.29384/2017 & 13419/2018 9 APPENDIX OF WP(C) NO.29384/2017 PETITIONER'S/S EXHIBITS:
EXHIBITP1 A TRUE COPY OF THE NOTICE DATED 29-08-2017 BEARING NO.H4/4393/2016 ISSUED BY THE 1ST RESPONDENT TAHSILDAR.
EXHIBIT P2 A TRUE COPY OF THE MAHAZA PREPARED BY THE VILLAGE ASSISTANT IN THE PRESENCE OF WITNESSES DATED 3-9-2001.
EXHIBIT P2(A) A TRUE COPY OF THE PROCEEDINGS OF THE SPECIAL TAHSILDAR (LA) GCDA, ERNAKULAM DATED 19-04-2004.
EXHIBITP3 A TRUE COPY OF THE TRUST DEED DATED 11-09-2015 BEARING TRUST DEED NO.480 OF 2015 DATED 11-09- 2015 OF SUB REGISTRAR OFFICE, ERNAKULAM.
EXHIBITP4 A TRUE COPY OF THE GIFT DEED DATED 11-3-2016 BEARING GIFT DEED NO.1095 OF 2016.
EXHIBITP5 ATRUE COPY OF HE ENCUMBRANCE CERTIFICATE DATED 6-5-2016 IN RESPECT OF RE-SURVEY NO.284/12 OF MULAVUKAD VILLAGE.
EXHIBITP6 A TRUE COPY OF THE OBJECTION DATED 20-06-2015 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 1ST PETITIONER.
EXHIBIT P7 A TRUE COPY OF THE NOTICE DATED 11-08-2017 ISSUED BY THE 1ST RESPONDENT TAHSILDAR FOR HEARING ON 16-08-2017.
EXHIBIT P8 A TRUE PHOTOGRAPH OF THE PROPERTY OF THE PETITIONER.
EXHIBIT P9 A TRUE COPY OF THE APPLICATION DATED 2-9-2017 FOR COPY OF ORDER/DECISION DATED 16-08-2017 SUBMITTED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT.
EXHIBIT P9(A) A TRUE COPY OF THE POSTAL RECEIPT EVIDENCING DISPATCHING OF COPY APPLICATION RESPONDENT'S/S EXHIBITS:
EXHIBIT-R8(a) GOOGLE MAP OF THE PROPERTY AT THE TIME WHEN THE PETITIONER PURCHASING THE PROPERTY.WP(C).Nos.29384/2017 & 13419/2018 10
EXHIBIT-R8(b) TRUE COPY OF THE PHOTOGRAPH OF THE PROPERTY ON DEMOLISHING THE EASTERN COMPOUND WALL.
EXHIBIT-R8(c) THE PHOTOGRAPHS SHOWING THE 2ND PETITIONER DEMOLISHING THE ENCROACHMENT.
EXHIBIT-R8(d) THE PHOTOGRAPHS SHOWING THE 2ND PETITIONER DEMOLISHING THE ENCROACHMENT.
EXHIBIT-R8(e) THE PHOTOGRAPH SHOWING THE RECONSTRUCTION MADE BY THE 2ND PETITIONER.
EXHIBIT-R8(f) TRUE COPY OF THE SALE DEED PURCHASING THE PROPERTY FROM VANASPATHY NO. 5545/11 OF SRO ERNAKULAM.
EXHIBIT-R8(g) TRUE COPY OF THE SALE DEED PURCHASING THE PROPERTY FROM PRABHAVATHY NO. 1774/12 OF SRO ERNAKULAM.
EXHIBIT-R8(h) TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE DISTRICT COLLECTOR, ERNAKULAM 1/12/2014.
EXHIBIT-R8(i) TRUE COPY OF THE PETITION DATED 22/2/2016 FILED BEFORE THE GIDA CHAIRMAN, THE DISTRICT COLLECTOR, ERNAKULAM.
EXHIBIT-R8(j) TRUE COPY OF THE COMPLAINT FILED BY THE 8TH RESPONDENT TO THE GIDA ON 25/4/2017 EXHIBIT-R8(k) PHOTOGRAPHS OF ILLEGAL ENCROACHMENT OF THE PETITIONERS BLOCKING THE ENTRANCE OF THE 8TH RESPONDENT.
EXHIBIT-R8(l) TRUE COPY OF THE LETTER ISSUED BY KOCHI PORT TRUST DATED 14/11/2014.
EXHIBIT-R8(m) TRUE COPY OF THE LETTER DATED 11/12/2017 SUBMITTED BEFORE THE THAHASILDAR, KANAYANNUR THALUK AND FORWARDED TO VILLAGE OFFICER, MULAVUKADU.
EXHIBIT-R1(a) TRUE PHOTOGRAPHS OF UNAUTHORIZED ENCROACHMENT AND CONSTRUCTION.
EXHIBIT-R1(b) A TRUE COPY OF THE SURVEY SKETCH.
EXHIBIT-R6(a) A TRUE COPY OF THE LETTER ISSUED BY COCHIN PORT TRUST DATED 29/4/2010 EXHIBIT-R6(b) A TRUE COPY OF THE REPORT OF VILLAGE OFFICER DATED 12/10/2010 EXHIBIT-R6(c) THE TRUE COPY OF THE LETTER ISSUED BY GIDA TO TAHSILDAR, KANAYANNOOR.WP(C).Nos.29384/2017 & 13419/2018 11
EXHIBIT-R6(d) A TRUE COPY OF THE LETTER ISSUED BY GIDA DATED 15/6/2015 TO THE CI OF POLICE, CENTRAL POLICE STATION, ERNAKULAM.
EXHIBIT-R6(e) THE TRUE COPY OF THE NOTICE ISSUED BY TAHSILDAR.
EXHIBIT-R6(f) THE TRUE COPY OF THE LETTER ISSUED BY COCHIN PORT TRUST DATED 20/7/2015.
//TRUE COPY// P.A.TO JUDGE WP(C).Nos.29384/2017 & 13419/2018 12 APPENDIX OF WP(C) NO.13419/2018 PETITIONER'S/S EXHIBITS:
EXHIBITP1 TRUE COPY OF THE SALE DEED PURCHASING THE PROPERTY FROM VANASPATHY NO. 5545/11 OF SRO ERNAKULAM.
EXHIBIT P2 TRUE COPY OF THE SALE DEED PURCHASING THE PROPERTY FROM PRABHAVATHY NO.1774/12 OF SRO ERNAKULAM.
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE DISTRICT COLLECTOR, ERNAKULAM 1-12-2014.
EXHIBIT P4 TRUE COPY OF THE PETITION DATED 22-2-2016 FILED BEFORE THE GIDA CHAIRMAN, THE DISTRICT COLLECTOR, ERNAKULAM.
EXHIBIT P5 THE PHOTOGRAPHS SHOWING THE 4TH RESPONDENT DEMOLISHING THE ENCROACHMENT EXHIBIT P6 THE PHOTOGRAPHS SHOWING THE 4TH RESPONDENT DEMOLISHING THE ENCROACHMENT.
EXHIBIT P7 TRUE COPY OF THE TRUST DEED DATED 11-9- 2015 OF SRO ERNAKULAM.
EXHIBIT P8 TRUE COPY OF THE GIFT DEED DATED 11-9-2015 OF SRO ERNAKULAM EXHIBIT P9 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER TO THE GIDA ON 25-4-2017.
EXHIBIT P10 THE PHOTOGRAPHS SHOWING THE 4TH RESPONDENT SHOWING THE ENCROACHMENT OF THE RESPONDENTS 4 AND 5.
EXHIBIT P11 TRUE COPY OF THE LETTER ISSUED BY KOCHI PORT TRUST DATED 14-11-2014.
EXHIBIT P12 TRUE COPY OF THE NOTICE DATED 29-8-2017 ISSUED TO THE 4TH RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN SPECIAL LEAVE TO APPEAL (C) NO.8519/2006 DATED 31-1-2018.WP(C).Nos.29384/2017 & 13419/2018 13
EXHIBIT P14 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR DATED 19-2-2018.
RESPONDENTS EXHIBITS EXHIBIT R2(A) A TRUE COPY OF THE LETTER ISSUED BY COCHIN PORT TRUST DATED 29.04.2010.
EXHIBIT R2(B) A TRUE COPY OF THE REPORT OF VILLAGE OFFICER DATED 12.10.2010.
EXHIBIT R2(C) THE TRUE COPY OF THE LETTER ISSUED BY GIDA TO TAHSILDAR, KANAYANNOOR.
EXHIBIT R2(D) A TRUE COPY OF THE LETER ISSUED BY GIDA DATED 15.06.2015 TO THE CI OF POLICE, CENTRAL POLICE STATION, ERNAKULAM. EXHIBIT R2(E) THE TRUE COPY OF THE NOTICE ISSUED BY TAHSILDAR.
EXHIBIT R2(F) THE TRUE COPY OF THE LETTER ISSUED BY COCHIN PORT TRUST DATED 20.07.2015.
//TRUE COPY// P.A.TO JUDGE