Kerala High Court
P.M.Jalaja vs The District Collector Ernakulam on 21 May, 1999
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
FRIDAY, THE 22ND DAY OF JUNE 2012/1ST ASHADHA 1934
WP(C).No. 28142 of 2010 (P)
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PETITIONER:
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P.M.JALAJA,AGED 38 YEARS,
W/O.LATE BALAKRISHNAN,
CHANIYAMURI HOUSE,SUDHARMA ROAD
THEVARA, KOCHI.
BY ADVS.SRI.A.X.VARGHESE
SRI.A.V.JOJO
RESPONDENT(S):
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1. THE DISTRICT COLLECTOR ERNAKULAM
2. THE REVENUE DIVISIONAL OFFICER,
FORT KOCHI.
3. THE TAHSILDAR, KANAYANNUR TALUK,
KOCHI.
4. THE VILLAGE OFFICER, ELAMKULAM VILLAGE
OFFICE, ERNAKULAM.
5. THE SECRETARY, CORPORATION OF KOCHI-682 011.
6. C.G.OOMMEN, S/O.GEORGE,
CHAVANANICKAMANNIL HOUSE,PERUMANOOR PO, KOCHI-15.
R1 TO R4 BY GOVERNMENT PLEADER SRI.M.A.ABDUL SHUKOOR
R5 BY ADV. SRI.C.M.SURESH BABU,SC,COCHIN CORPORATION
SRI.S.RAMESH BABU, SC.COCHIN CORPORATION.
R6 BY ADVS.SRI.V.M.KURIAN
SRI.K.T.THOMAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 22-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
VK
WP(C).No. 28142 of 2010 (P)
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APPENDIX
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PETITIONER'S EXHIBITS
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EXT.P1. COPY OF THE STATEMENT DATED 21.5.1999
EXT.P2 COPY OF THE BUILDING PERMIT DATED 19.6.1999
EXT.P3. COPY OF THE PROPERTY TAX RECEIPT DATED 25.9.1998
EXT.P4. COPY OF THE RELEVANT PAGE OF THE RATION CARD.
EXT.P5. COPY OF THE ELECTRICITY BILL.
EXT.P6. COPY OF THE JUDGMENT DATED 4.7.2008 IN WPC NO.11990/06 OF THE
HON'BLE HIGH COURT.
EXT.P7. COPY OF THE IMPUGNED LETTER DATED 3.11.2008.
EXT.P8. COPY OF HE NOTICE DATED 6.1.2009.
EXT.9. COPY OF THE NOTICE DATED 7.2.2009 ISSUED BY THE 4TH RESPONDENT.
EXT.P10. COPY OF THE JUDDGMENT DATED 12.2.09 IN WPC 4586/09 OF THE
HON'BLE HIGH COURT.
EXT.P11. COPY OF THE OBJECTION DATED 26.2.2009.
EXT.P12. COPY OF THE JUDGMENT IN R.P. 453/09 DATED 13.8.09 OF THE
HON'BLE HIGH COURT.
EXT.P13. COPY OF THE JUDGMENT 15.9.2009 IN W.A. NO.2025/2009 OF THE
HON'BLE HIGH COURT OF KERALA.
EXT.P14. COPY OF THE APPEAL DATED 16.9.2009.
EXT.P15. COPY OF THE ORDER F-5426/2009 DATED 17.9.2009.
EXT.P16. COPY OF THE STATEMENT FILED BY THE ADDL. TAHSILDAR DATED
15.2.2010.
ET.P17. COPY OF THE STATEMENT FILED BY THE KOCHI CORPORATION DATED
15.2.2010.
EXT.P18 COPY OF THE PROCEEDINGS DATED 2.7.10 OF THE 2ND RESPONDENT.
EXT.P19. COPY OF THE NOTICE DATED 4.8.2010.
VK
WP(C).No. 28142 of 2010 (P)
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RESPONDENT'S EXHBITS :
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EXT.R6(A). COPY OF THE ORDER DATED 12.12.2006 PASSED BY THE 1ST
RESPONDENT.
EXT.R6(B) COPY OF JUDGMENT DATED 10.12.2009 IN WPC NO.28708/2009.
/ TRUE COPY /
P.A. TO JUDGE
VK
ANTONY DOMINIC,J
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W.P.(C)No.28142 of 2010
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Dated this the 22nd day of June, 2012
JUDGMENT
Petitioner challenges Exts.P18 and P19. Ext.P18 is an order passed by the Revenue Divisional Officer on Ext.P14 appeal filed by the petitioner in a proceedings under the Kerala Land Conservancy Act. Ext.P19 is a consequential order issued by the Secretary of the Corporation, calling upon the petitioner to vacate from the Puramboku land in her occupation.
2. This litigation has a long history. Petitioner's husband, late Sri.C.N.Balakrishnan, made an application for a building permit to the 5th respondent for constructing a residential house in the property in Survey No.980 of Division No.26 of Elamkulam Village. On that application, Ext.P2 building permit was granted on 19.06.1999. Accordingly, a building was constructed. Exts.P3, P4 and P5 are the receipts for payment of property tax, ration card, and electricity bill, all in respect of the aforesaid building.
W.P.(C).No.28142/2010 : 2 :
3. The building constructed is situated close to the house of the 6th respondent. He made complaints alleging that the building was constructed encroaching into Kayal Puramboku. Thereafter, he along with another person approached this Court by filing W.P.(c) No.11990/2006 seeking implementation of the orders that were issued and to evict the petitioner from the property. During the pendency of the writ petition, the District Collector issued Ext.R6(a) order, requiring the Tahsildar to take action for evicting the unauthorized occupation of the petitioner from the Kayal Puramboku comprised in Survey No.1018. Subsequently, when the writ petition came up for hearing, this Court rendered Ext.P6 judgment, leaving it open to the petitioners therein to approach the District Collector and the District Collector was to take action on that basis.
4. In pursuance to the judgment aforesaid, the Additional Tahsildar issued Ext.P7 notice to the petitioner, calling upon her to vacate from the unauthorizedly occupied Puramboku land and informing her that in the event of her failure to do so, W.P.(C).No.28142/2010 : 3 : proceedings would be initiated under the Kerala Land Conservancy Act. This was followed by Ext.P8 notice informing the petitioner that she should appear before the Additional Tahsildar for hearing on 06.01.2009. On 07.02.2009, the Village Officer, Eramkulam issued Ext.P9 notice, once again informing the petitioner that she should vacate the premises within 15 days or else she will be evicted in accordance with law.
5. At that stage, petitioner filed writ petition No.4586/2009 challenging Exts.P7 and P9. That writ petition was disposed of by Ext.P10 judgment directing that Exts.P7 and P9 will be treated as notices, that it will be open to the petitioner to file her replies to the notices and that once replies are so filed, she will be heard and orders will be passed. It was also directed that until a decision is taken as above, she shall not be evicted from the property in question. Accordingly, the petitioner filed Ext.P11 objections. While the Tahsildar was thus seized of the issue, the 6th respondent herein filed R.P.No.453/2009 seeking review of Ext.P10 W.P.(C).No.28142/2010 : 4 : judgment on the ground that in pursuance to Ext.P8 notice, the petitioner appeared for hearing on 12.01.2009 and that she had not disclosed the said fact in the writ petition. Accepting the said contention, the review petition was allowed by Ext.P12 order and the writ petition was dismissed with costs of Rs. 2500/- and leaving it open to the petitioner to pursue the statutory remedies available to her. Though, Writ Appeal No.2025/2009 was filed by the petitioner against Ext.P12 order, that was dismissed by Ext.P13 judgment.
6. In such circumstances, petitioner filed Ext.P14 appeal against the proceedings initiated against her, invoking the appellate remedy under Section 16(b) of the Kerala Land Conservancy Act. In the appeal, the second respondent passed Ext.P15 order, staying further proceedings in the matter. Finally, the appeal was disposed of by Ext.P18 order. In that order, it was found that the building permit obtained was in respect of property in Survey No.980, whereas on the strength of the said building permit, petitioner encroached into Kayal Puramboku situated in Survey No.1018 and W.P.(C).No.28142/2010 : 5 : constructed the building. It was also stated that in view of this, completion certificate has not been issued by the Corporation so far. However, finding that the Kayal Puramboku in question is vested in the Corporation by virtue of Section 208(A) of the Kerala Municipalities Act, the second respondent directed the Corporation to take appropriate action in terms of Sections 367, 372 and 376 of the Act.
7. Relevant portion of Ext.P18 order reads thus:
"So$Ur4 r]SUL!YOW% v]whoLp] kq]SwLi] \f]R#pOU CT KLl}y]$ v\V ja>]p v] \LqeWtORapOU, mzOoLjRUY SWqt RRzS(Laf] pORa v]i]pORapOU Aa]rLj>]$ h}of]. ^s^L mLsWQxVe" WLp$ kOrSRL(V rsU RRWSar]p] YOgfLRePV WR:>]p]q](OPO. Af]jL$ CT KLl} y]$ j]POU 17/09/09&$ yP\j 11 NkWLqU AjOvh]\ Sp KL!c! Cf]jL$ k]"vs]\V D>qvLp]q](OPO. 1994&Rs SWqt oOj]y]ULs]c] j]poU 208 (I) vWOUV NkWLqU WLp$ kOrSRL(V fSGw y~pUnqe rLkj>] $ j]]kVfoLeV. NkyVfOf j]po>]Rs 367, 372, 376 IP} vWOUOW% NkWLqU jYqynpV(V RRWSacRoLu]U] (OvL" Ai]WLqoOgfOoLeV. CT yLz\q|>]$ CT SWy]$ RRWSacRoLu]U](OPf]jOg Ai]WLqU RWL\] jYqynpV(LeV. SWqt oOj]y]ULs]c] j]poNkWLqU RWL\] jYqynpV(V RRWSacRoLu]U](LvOPfLeV. AU}$ So$ NkWLqU f}!UL(] D>qvLWOPO." W.P.(C).No.28142/2010 : 6 :
8. Accordingly, the Secretary of the Corporation issued Ext.P19, calling upon the petitioner to vacate from the property in survey No.1018 within 15 days and informing that in the event of her failure, the Corporation will take action for getting her forcibly evicted. The relevant portion of Ext.P19 reads thus:
"WepPP! fLsP(V ItUWOtU v]Ssf^V Sfvq Shw>V h}of]. ^s^ mLsWQxVe", \Le]pLoOr], yOi!ZL SrLcV IP fLK% y!Rv 1018&$ RUY WLp$ kOrSRL(V RRWSar] fLKtORa n!>LvLp h}. y].I".
mLsWQxVeR# Skq]$ 280 yVW~p! o}c! v]yVf}!9oOg RWY]aU j]!Z](OPf]jLp] ASk yo!U](OWpOU Bpf]$ y!Rv jR! RfcLp] SqXRUaO>] jYqynRp Rfc]Hq]U]\V 18.6.99&$ IU.K.k]. 2&99/99&LU jRrLp] RWY]a j]!ZLeLjOof] vL0]p]qOPfOU, a]. Rk!Z]c]jVV v]qOHoLp] RWY]a j]!ZLeU ja>]p]YOgfOoLeV. fLK% WLp$ kOrSRL(V RRWSar]pfV yUmjVi]\V So$yP\j (1) (2) NkWLqoOg D>qvOWtORa Aa] rLj>]$ a]. WLp$ kOrSRL(V Ku]U](OPf]jV yP\j (3). (5) NkWLqoOg WepPP! fLsP(V KLl} yrORapOU ItUWOtU v]Ssf^V KLl}yrOSapOU W.P.(C).No.28142/2010 : 7 : D>qvOW%R(f]Rq yP\j (10) NkWLqU fLK% 16.9.09&$ SlLYORWL\] rvj|P c]v]xe$ KLl}y! oORLRW lp$ R\pVf yVSc Rkc}xR# Aa]rLj>]$ yP\j (11) NkWLqU 17.9.09&$ fLK%(V yVSc sn|oLp] qOPfLeV.
a]. v]xp>]$ f}!UOWsVU](OPf]jLp] So$yP\j (14) (15) NkWLqU WepPP! fzy] $hLqOSapOU, RWL\] jYqyn RyNWYr]pOSapOU r] SUL!YV sn|oL(] kq]SwLi]\f]S#pOU, a]. KLl}y]$ v\V ja>]p v]\LqeWtOSapOU Aa]rLj>]$ h} of]. ^s^ mLsWQxVe" IP fLK% WLp$ kOrSRL(V RRWSar] RWY]aU Rv\]YOgfLp] WR:>] pf]R# Aa]rLj>]$ So$yP\j 11 NkWLqU AjOvh]\ yVSc KL!c! k]"vs]\ORWL:V yP\j (16) NkWLqU D>qvLp]YOgfLeV. 1994&Rs SWqt oOj] y]ULs]c}yV BWVaV RyWVx" 208(I) vWOUONkWLqU WLp$ kOrSRL(V fSGwy~pUnqe rLkj>]$ j] ]kVfoLeV. CT yLzq|>]$ RRWSacU Ku]U](OPf] jOg Ai]WLqU jYqyn`V jsVW]RWL:V D>qvLp] YOgfLeV. SWqt oOj]y]ULs]c}yV BWVaV RyWVx" 376 NkWLqoOg CT SjLY}yV RRWUc] 15 h]vy>]jWU fLK% a]. rsU Ku]4OfSq:fOU, a]. SjLY]yV W.P.(C).No.28142/2010 : 8 : AjOyq]\V Nkv!>](L>kU Cj] Kqr]p]UO WPaLRf jYqyn Sjq]YV fLKRt a]. rs>Oj]POU Ku] U](OPfLeV. BpfONkWLqU D:LWOP yWsWxVajxVa0%(OU fLK% oLNfU D>qvLh] Bp] q](OPfOoLeV.
It is in these circumstances, the writ petition has been filed.
9. I heard the counsel for the petitioner, the Government Pleader appearing for respondents 1 to 4 and the counsel appearing for the 6th respondent. Respondents are contending that this is a case of encroachment into Kayal Puramboku and therefore, the impugned proceedings do not call for any interference.
10. The fact that the permit in question was issued in respect of property in Survey No.980 of Elamkulam Village is obvious from Ext.P2 building permit itself. Petitioner does not have a case that the building constructed is in survey No.980 or that the finding of the District Collector, Tahsildar, Revenue Divisional Officer or the Secretary of the Corporation that the construction is in Survey No.1018 is erroneous. The fact that the property in Survey No. 1018 is a Kayal Puramboku, which W.P.(C).No.28142/2010 : 9 : is vested in the Corporation by virtue of Section 208 of the Kerala Municipalities Act is also undisputed.
11. However, counsel for the petitioner contended that when application for building permit was made, the site was inspected in terms of Rule 7 of Kerala Municipality Building Rules and it was thereafter that the permit was issued. Therefore, according to him, authorities are estopped from contending that the building constructed by her is in Kayal Puramboku warranting eviction. I am unable to agree with the counsel. A plea of estoppal can be urged only if the petitioner can establish that in the application for building permit survey number of the property shown was 1018 and that the Corporation has wrongly mentioned 980 in Ext.P2, building permit. Petitioner does not have such a case and therefore, plea of estoppal does not have any force.
12. As already seen the permit granted is in respect of property in Survey No.980. Admittedly, the building constructed is in Survey No.1018. The properties comprised in these two survey numbers are situated at different places. W.P.(C).No.28142/2010 : 10 : Further, the specific finding in Ext.P19 order is that in the application for building permit survey number was wrongly mentioned and that the permit was obtained misleading the officials of the Corporation. The finding that the permit happened to be issued on misrepresentation of facts, itself renders the building permit granted liable to be revoked, under Rule 16 of the Kerala Municipality Building Rules, 1999.
13. Even apart from all these, admittedly, construction has been made in a Puramboku land. Assuming that in collusion with the officers of the Corporation, even if a building permit in respect of Puramboku land was obtained, the building permit itself is illegal and will not bind the Corporation. Such an illegality, cannot be legitimized by taking refuge under the principles of estoppal, which itself is a principle of equity. Further, this is not a case where a completion certificate has been issued by the Corporation. Only if an application for completion certificate is made will the Officials of the Corporation get an opportunity to inspect the property to find out whether the building in question has been W.P.(C).No.28142/2010 : 11 : constructed in the property in respect of which, the building permit was granted. Therefore, petitioner cannot find fault with the officials of the Corporation and seek to legitimize the illegality committed.
14. Relying on Ext.P16 report of the Tahsildar, counsel for the petitioner then contended that petitioner is a person having no other place to live and for that reason indulgence should be shown to her. In this context, I must make reference to the following averments in Paragraph 12 of the counter affidavit filed by the 6th respondent:
"The property in Sy.No.980 is lying away from the property where the petitioner has constructed the house. The building is constructed in the reclaimed kayal puramboke in Sy.No.1018 of Elamkulam Village and not in Sy.No.980 in Elamkulam Village. The permit itself was obtained fraudulently and in connivance with the Corporation officials. The petitioner owns another house hardly 200 metres away from the encroached land. Petitioner cannot be allowed to enjoy the fruits of ill-gotten benefits."
(emphasis supplied) W.P.(C).No.28142/2010 : 12 : There is no affidavit in reply filed by the petitioner. Therefore, the claim of the petitioner that she has no other property, also cannot be accepted.
15. Relying on Ext.P16 report submitted by the Tahsildar to the Revenue Divisional Officer, petitioner contended that there are several such occupants and that all those occupants are remaining in their respective plots undisturbed. Therefore, according to the petitioner, there is no reason why she alone should be singled out and proceeded against. First of all, Article 14 of the Constitution of India cannot be made use of for the purpose of perpetuating an illegality. Therefore, the fact that an illegal occupant is remaining in another plot of land or building, is no reason to legitimize the illegality of other encroachers. That apart, in Ext.P16 itself it is stated that to some of the other occupants, documents evidencing their possession has been issued, unlike in the case of the petitioner. Even otherwise, so long as action taken against the petitioner is legal, such an action cannot be characterized illegal on the ground that steps have not been taken against W.P.(C).No.28142/2010 : 13 : certain other illegal occupants.
16. In such circumstances, having regard to the admitted factual position that after obtaining a building permit in respect of property in survey No.980, petitioner encroached into the Kayal Puramboku comprised in survey No.1018 and constructed a building, the proceedings initiated against the petitioner are perfectly legal and I see absolutely no merit or substance in any one of the contentions raised.
17. Learned counsel for the petitioner relied on the judgment of this Court in W.P.(c) No.15120/2006 and contended that in a similar case, the writ petition seeking eviction of an illegal occupant was rejected by this Court. However, that judgment shows that taking note of the circumstances of the case and on sympathetic considerations, in that case, the Government had ordered that the person concerned need not be evicted. It was that order, which was challenged before this Court. Taking note of the circumstances highlighted in the Government order, this Court dismissed the writ petition. In this case, there is no order favourable to the W.P.(C).No.28142/2010 : 14 : petitioner, and therefore, on facts, this case is totally incomparable and the judgment relied on cannot be of any assistance to the petitioner.
Writ petition is dismissed.
ANTONY DOMINIC, JUDGE ln