Kerala High Court
M.Chandran vs State Of Kerala
Author: Manjula Chellur
Bench: Manjula Chellur, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
TUESDAY, THE 7TH DAY OF AUGUST 2012/16TH SRAVANA 1934
WP(C).No. 31397 of 2011 (S)
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PETITIONER(S):
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M.CHANDRAN, AGED 44 YEARS,
SON OF LATE KELAPPAN, MOOKKOTHU HOUSE
NORTH POYILUR P.O., KANNUR DISTRICT.
BY ADV. SRI.KISHOR B.
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY DISTRICT COLLECTOR, KANNUR.
2. TAHSILDAR,
TALASSERY TALUK, KANNUR DISTRICT.
BY SR. GOVERNMENT PLEADER SRI.P.I.DAVIS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 31397 of 2011
APPENDIX
PETITIONER(S) EXHIBITS
EXT.P1 LETTER OF VILLAGE OFFICER DATED 2/7/09.
EXT.P2 TRANSLATED COPY OF EXT.P1.
EXT.P3 LETTER OF DISTRICT COLLECTOR, KANNUR DATED 1/10/2009.
EXT.P4 TRANSLATED COPY OF SXT.P3.
RESPONDENTS' EXHIBITS : NIL
/TRUE COPY/
PS TO JUDGE
MANJULA CHELLUR, Ag.C.J
&
A.M.SHAFFIQUE, J.
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W.P(C).No. 31397 of 2011
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Dated this the 7th day of August, 2012
JUDGMENT
Manjula Chellur, Ag.C.J. Heard learned counsel for the petitioner as well as learned Government Pleader.
2. The present Writ Petition is filed in the nature of a Public Interest Litigation seeking the following reliefs against respondents 1 and 2, i.e., District Collector, Kannur and Tahsildar, Talassery Taluk:
"A. Issue a writ of mandamus or any other writ, order or directin to the District Collector to constitute a special survey team as requested by the Village Officer, Thrippangottur in Exhibit P1.
B. Direct the District Collector to issue stop memo to the persons named in Exhibit P3 not to cut and remove rubber trees in Sy. 275/1A of Thrippangottur Village until and unless the land is surveyed and encroachment if any is found out. C. Direct the District Collector to speed up the process of distribution of excess land ordered to be taken over several years ago as per the orders of the Thalassery Taluk Land Board in 1206/73 dated 22.1.1987.
WP(C).31397/11 2 D. Grant any other relief that may be prayed for which this Honourable Court deems fit and proper in the facts and circumstances of the case."
3. The grievance of the petitioner is, though 1234.57 acres of excess land was ordered to be taken over by M/s.Pothen Joseph & Sons in resurvey Nos.272, 273, 275/IA & 278 as per orders of the Taluk Land Board, Talassery as early as in 1987, only 117.26 acres of land is recovered by the Government and more than 1000 acres of land remains unattended, which could be distributed to landless poor.
4. The petitioner's specific grievance is against one Abraham.M.A @ Kunjumon Muthalali and his wife Rajamma Abraham along with 20 others had obtained 99.60 acres of land from M/s.Pothen Joseph and it is in their possession with rubber cultivation managed by Abraham.M.A, which is evident from the records as well. He has encroached 30 acres of excess land and on a complaint by the present petitioner, the Village Officer requested for a Survey Team as per Exhibit P1 in the year 2009, but, so far no Survey Team is constituted, in spite of endorsing the same by the District Collector. Therefore, he has approached this Court.
5. The counter affidavit filed on behalf of the Government indicates, according to learned Government Pleader, unless and WP(C).31397/11 3 until the land alleged to be encroached by several persons including the persons referred to in the Writ Petition is surveyed by a Survey Team the Government will not be in a position to know whether the allegations made in the Writ Petition are genuine or not. The petitioner has already brought to the notice of the Chief Minister in a public grievance meeting, i.e., 'Sutharya Keralam' programme and the matter was already forwarded to the District Collector for detailed enquiry and report.
6. Paragraph 2 refers to the details of several petitions filed by the present writ petitioner. Paragraph 4 refers to the lands possessed by M/s.Pothen Joseph & sons. Paragraph 5 refers to total number of persons, i.e., 662 persons, who are in possession of land belonging to the Government. This was prior to 1.1.1977 and i.e., for more than three decades. Paragraph 6 refers to cutting and removal of rubber trees. Paragraph 7 refers to constitution of a Survey Team under the leadership of District Collector concerned and the difficulties faced by the Survey Team on account of obstructions and strong protest including violance at the time of resistance by the occupants of these lands. Paragraph 8 refers to the meeting held in this regard chaired by the Chief Minister of Kerala and the decisions taken in the said meeting. Paragraph 9 refers to the allegations so far as particular WP(C).31397/11 4 individuals referred in the Writ Petition. In order to understand the stand of the Government, it would be just and proper to reproduce the averments contained in the counter affidavit filed by the Superintendent of the office of the District Collector. Paragraphs 2 to 9 of the counter affidavit read as under:
"2. The above Writ Petition is filed in public interest mainly seeking a direction to the State Government to take over the excess land ordered to be taken over from M/s.Pothen Joseph & Sons (P) Ltd. In Re-Survey Nos.272, 273, 275/1A and 278 of Thriprangottur Village as per the orders of the Taluk Land Board, Thalassery in TLB No.1206/73 dated 22.01.1987 and distribute the excess land to the landless poor. It was also inter alia prayed that the District Collector may be directed to constitute a special survey team requested in Exhibit P1 by the Village Officer, Triprangottur and to see that the persons named in Exhibit.P3 shall not be allowed to cut and remove rubber trees in Survey No.275/1A, Triprangottur Village, until and unless the land is surveyed and encroachment if any is found out by the survey team. It is submitted that the above writ petition is not maintainable either in law or on facts of the case.
3. It is true that a petition was filed by the petitioner in the Chief Minister's Public Grievance Redressal cell under the "Sutharya Keralam" Programme and the same was forwarded to the office of the District Collector for detailed enquiry ad report. The main allegation was that one Kunhumon Mothalali is in possession of about 140 Acres of land comprised in R.S.No. 275/1A of Poyiloor WP(C).31397/11 5 desom in Triprangottur amsom and that out of the said 140 acres, 99.6 Acres are in possession of 22 persons and the remaining 40 Acres are included in surplus land to be taken over as per the orders of the Taluk Land Board. It is further alleged that the said 40 Acres have been encroached upon and they are taking steps to cut and remove the trees standing therein. The petition was forwarded to the Village Officer through the Tahsildar, Thalassery for detailed enquiry report. In the meanwhile the petitioner has also submitted another 2 petitions dated 23.11.2009 & 31.10.2010 before the Ist respondent with the same prayer and the same was also forwarded to the Tahsildar for enquiry and report. The Tahsildar, Thalassery had submitted his report on 20.01.2010 and had reported that Kunhumon Mothalali and his sons possessed 99.6 Acres of landed property and the same is being used for rubber plantation. It was also further reported that in order to ascertain whether Kunhumon Mothalali has encroached on any excess land, survey works are to be conducted and the Tahsildar has requested the service of the Surveyors.
4. As per the order dated 22.01.1987 of the Taluk Land Board, Tahalassery, it was ordered that 1234.51 acres of surplusland in Re-Survey Nos.272, 273, 275/1A and 278 of Triprangottur village possessed by M/s.Pothen Joseph & Sons (P) (Vadakkekalam Estate) Limited, are liable to be surrendered. Pursuant to that an extent of 117.26 Acres of surplus land has been taken over and remaining 1117.25 Acres of surplus land still remains to be taken over.
5. It is respectfully submitted that at the time of order of the Taluk Land Board, Thalassery itself, the surplus land was in possession of about 662 persons. Though several WP(C).31397/11 6 steps were initiated to take over the possession of the excess land, by constituting a survey team to survey the land, but due to the mass obstruction from the occupants of the said land, the Surveyors could not even enter the land or conduct any survey enquiry. Among the above said 662 persons, several persons are in possession of the land even before 01.01.1977 and most of the persons are in possession of the land for the last more than three decades.
6. All these matters were reported to the Public Grievance Redressal by letter dated 09.02.2010. As far as the allegation regarding the cutting and removing of trees from the excess land alleged to be encroached by Kunhumon Mothalali, it was reported by the Tahsildar that at present no rubber trees are being cut and removed from 99.6 Acres of land in Resurvey No.27/1A of Triprangottur Village. In order to ascertain whether any excess land has been encroached by Kunhumon Mothalali and his sons, though the survey team was constituted survey works could not be conducted on account of obstructions made by the persons in possession of the land. The above mentioned 99.6 acres of land is cultivated with rubber plantation by the 22 land holders under the supervision of Sri.Kunhumon Mothalali.
7. It is submitted that in order to conduct the survey works and ascertaining whether any encroachment have been made or not, the survey team was constituted by the District Collector consisting of 5 Surveyors under the leadership of additional Tahsildar and Head Surveyor. After constitution of the team, Survey team arrived at the site on 28.01.2011 for conducting survey works, but due to the strong protest and obstructions by more than 100 occupants of the land, the survey team could not WP(C).31397/11 7 enter the plot or conduct any survey work. As far as the ownership of 99.6 acres of rubber plantation, the enquiry conducted by the Village Officer reveals that the said land is a rubber plantation belonging to 22 persons and all these persons are paying land tax for their holdings separately. The plantation is being cultivated the rubber and the same can be considered is legitimate.
8. As per the orders of the Taluk Land Board itself, the land in possession of 221 persons before 01.01.1977 were exempted from the surplus land ordered to be taken over by the Land Board. The dispute regarding the possession of other persons were discussed in a meeting held on 13.10.2011 presided by the Hon'ble Chief Minister and the matter was discussed in detail and it was decided that the remaining 441 persons in possession of the surplus land at the time when the order was passed by the Taluk Land Board, shall be assigned the land in their possession. But the issue regarding how much extent of land shall be retained by the persons in possession was left the decision to be taken finally by the State cabinet. It was also decided that the number of the persons in possession of the surplus land shall not in any way exceed the number of 441 and suitable amendments were also suggested under Section 7E of the Kerala Land Reforms Act. A true copy of the minutes of the meeting held on 13.10.2011 presided by the Hon'ble Chief Minister is produced herewith and marked as Exhibit R1(a). Regarding the extent of land to be given to the persons in possession is yet to be decided by the State Cabinet and till this date, no Government Order has been issued in this regard.
9. The petitioner is mainly concerned about the encroachment stated to be made by Sri.Kunhumon WP(C).31397/11 8 Mothalali and his sons in about 30 Acres of excess land. On enquiry, it was revealed that Sri.Kunhumon Mothalali and others have obtained 99.6 Acres from Sri.Pothen Joseph, which was excluded from the purview of the excess land ordered to be taken over by the Taluk Land Board, this land is cultivated with rubber as per the Government records and the owners paying land tax in respect of the same. But regarding the allegation of encroachment on excess land, a survey team was constituted and survey works though attempted could not be carried out due to the protest and objection made by the occupants of the land every efforts will be taken by the District Collector to conduct further survey work in respect of the alleged encroachment of 30 Acres of land with the assistance of Police and every efforts will be made to see that encroachment, if any made, shall be removed if directed by this Hon'ble Court. But the allegation regarding the cutting and removing or rubber trees from the plantation is incorrect and denied."
7. From the contents of the counter affidavit of the State, we note, it is not with regard to one or two individuals the action is launched, but the whole exercise is to see that encroachers/in possession and enjoyment of the properties for more than three decades to be ascertained and then evicted from unauthorised occupation of the land belonging to the Government in accordance with due process of law.
8. In order to treat the present Writ Petition as a Public Interest Litigation, the petitioner is not seeking any relief with WP(C).31397/11 9 reference to the land encroached by 662 persons or with reference to a particular acreage. His main grievance seems to be against a family i.e., Abraham.M.A @ Kunjumon Muthalali and his wife. If he wants any specific direction against these two persons, he is at liberty to bring to the notice of the authority concerned with reference to the illegalities or unlawful acts committed by these persons.
In the guise of Public Interest Litigation, the petitioner cannot be allowed to settle his scores with the private parties, who are not even made parties to the present Writ Petition. Even otherwise, with regard to the allegation of inaction against the authorities and the unlawful acts of individuals already there seems to be serious action right under the supervision of the Honourable Chief Minister of Kerala.
In that view of the matter, we are of the opinion, nothing else could be done in the present Writ Petition especially when a special Survey Team is already constituted. Accordingly, the Writ Petition is dismissed.
MANJULA CHELLUR, ACTING CHIEF JUSTICE A.M.SHAFFIQUE, JUDGE vgs08.08