Kerala High Court
Augustine Kurian vs State Of Kerala on 30 January, 1970
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 15TH DAY OF NOVEMBER 2016/24TH KARTHIKA, 1938
WP(C).No. 5775 of 2010 (V)
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PETITIONER(S):
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1. AUGUSTINE KURIAN
CHAKKALACKAL HOUSE, THOOTHIYOOR,, CSEZ P.O., KAKKANAD,
KOCHI-37.
2. PETER KURIAN, S/O.C.M.KURIAN,
CHAKALACKAL HOUSE, THOOTHIYOOR,, CSEZ P.O., KAKKANAD,
KOCHI-37.
3. SHYJU JOSEPH, S/O.C.K.JOSEPH,
CHAKKALACKAL HOUSE, THOOTHIYOOR,, CSEZ P.O., KAKKANAD,
KOCHI-37.
4. M.P.SEBASTIAN, S/O.M.O.PAILY
MANPURAYKKAL HOUSE, THOOOTHIYOOR, CSEZ P.O., KAKKANAD,
KOCHI-37.
5. K.K.THANKA, W/O.V.K.PURUSHAN,
VETTUVELIL HOUSE, THOOTHIYOOR, CSEZ P.O., KAKKANAD,
KOCHI-37.
BY ADV. SRI.KALEESWARAM RAJ
RESPONDENT(S):
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1. STATE OF KERALA, REPRESENTED BY
SECRETARY TO GOVERNMENT,, DEPARTMENT OF REVENUE,
SECRETARIAT,, THIRUVANANTHAPURAM.
2. THE LAND REVENUE COMMISSIONER
THIRUVANANTHAPURAM.
3. THE DISTRICT COLLECTOR, ERNAKULAM.
4. THE TAHSILDAR, TALUK OFFICE,
KANAYANNUR TALUK, ERNAKULAM.
5. THE VILLAGE OFFICER,
VAZHAKKALA,
ERNAKULAM DIST.
BY GOVERNMENT PLEADER SRI.SANTHOSH PETER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
15-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).NO.5775 OF 2010
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1 : TRUE COPY OF THE NOTICE DATED 30.1.1970
EXT.P2 : TRUE COPY OF THE RECEIPT DATED 21.2.1962
EXT.P3(a) : TRUE COPY OF THE NOTICE DATED 30.12.1968
EXT.P3(b): TRUE COPY OF THE NOTICE DATED 6.1.1977
EXT.P4 : TRUE COPY OF THE LAND TAX RECEIPT DT.6.1.1966
EXT.P5 : TRUE COPY OF THE LEASE RECEIPTS
EXT.P6 : TRUE COPY OF THE PARTITION DEED DT.27.08.1982
EXT.P7 : TRUE COPY OF THE CERTIFICATE DATED 19.5.1994
EXT.P8 : TRUE COPY OF THE NOTICE DATED 16.7.1994
EXT.P9 : TRUE COPY OF THE RELEVANT PAGES OF THE RATION CARD
BELONGING TO THE 5TH PETITIONER'S FAMILY
EXT.P10 : TRUE COPY OF THE REPORT BEARING NO.102/97 DATED 30.07.1997
EXT.P11 : TRUE COPY OF THE ORDER DATED 23.8.1996
EXT.P12 : TRUE COPY OF THE JUDGMENT DATED 12.8.2004 IN
O.P.NO.4235/1996
EXT.P13 : TRUE COPY OF THE NOTICE DATED 12.10.2004 ISSUED BY THE 4TH
RESPONDENT TO THE 2ND PETITIONER.
EXT.P14 : TRUE COPY OF THE NOTICE DATED 12.10.2004 ISSUED TO THE 4TH
PETITIONER
EXT.P15 : TRUE COPY OF THE NOTICE DATED 12.10.2004 ISSUED TO THE 5TH
PETITIONER.
EXT.P16 : TRUE COPY OF THE APPLICATION DATED 6.12.2004
EXT.P17 : TRUE COPY OF THE ORDER DATED 21.2.2005
EXT.P18 : TRUE COPY OF THE JUDGMENT DATED 17.3.2008 IN WP(C)
NO.8908/2008
EXT.P19 : TRUE COPY OF THE INTERIM ORDER DATED 8.4.2009 IN
W.A.NO.773/2009
EXT.P20 : TRUE COPY OF THE JUDGMENT DATAD 15.2.2010 IN W.A.NO.773/2009
EXT.P21 : TRUE COPY OF THE NOTICE DATED 31.7.2009
EXT.P22 : TRUE COPY OF THE NOTICE DATED 29.5.2009
EXT.P23 : TRUE COPY OF THE NOTICE DATED 29.10.2009
RESPONDENT'(S) EXHIBITS: NIL
// TRUE COPY//
P A TO JUDGE
sm/
P.V.ASHA J.
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W.P.(C) No.5775 of 2010
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Dated this the 15th day of November, 2016
J U D G M E N T
The petitioners claim that they/their predecessors in interest, have been in possession and enjoyment of 13 acres of land in R.Sy.No.218/1 in Vazhakkala Village for a long time and they are seeking a declaration that they cannot be dispossessed from the said land.
2. Petitioners had earlier approached this Court in O.P.No.4235/96, when this Court by Ext.P12 judgment directed consideration of their applications for assignment of the disputed property. When those applications were rejected as per Ext.P17 order dated 21.02.2005 and when steps were initiated for utilising the said land for rehabilitation purposes, they filed W.P.(C) 8908/2008, which was dismissed by Ext.P18 judgment dated 17.3.2008, which was affirmed in Ext.P20 judgment dated 15.2.2010 in W.A. No.773/2009. This writ petition is filed thereafter.
3. From Ext.P17 it is seen that on the basis of the direction contained in Ext.P12 judgment in O.P.No.4235/96 to the Tahsildar to consider the application for assignment submitted by petitioners, the Tahsildar called for a report from W.P.(C) No.5775 of 2010 2 the Village Officer. The Village Officer, conducted a site inspection and found that the property for which the petitioners applied for assignment, was Poramboke land; it is a waterlogged area which was not in possession of petitioners as claimed and there were no improvements in it. It was further found that the petitioners were having other landed properties and therefore the land could be utilised for public purposes. The Tahsildar thereupon considered the applications and rejected the same as per Ext P17, saying that the assignment of the said land to petitioners would be against the interest of Govt. and would be contrary to the future development programmes of Government. Ext.P17 order passed on 21.02.2005 was challenged by filing W.P.(C).No.8908 of 2008 and this Court by Ext.P18 judgment dated 17.03.2008, dismissed the writ petition, seeing the delay in challenging the order passed on 21.02.2005. Petitioners' claim relating to possession of the land was also repelled observing that the same was belied by the contents of the documents produced by them in the writ petition. Petitioners filed W.A.No.773 of 2009 in which the judgment of the learned Single Judge was confirmed. However, paragraph 3 of Ext.P18 judgment containing the observation relating to possession was vacated. The petitioners had sought for a direction in the writ appeal W.P.(C) No.5775 of 2010 3 that they cannot be evicted forcefully, However, this Court did not go into those aspects, since the writ petition was filed as against the rejection of the application for assignment. That judgment was rendered on 15.02.2010
4. It is thereafter that petitioners have approached this Court, seeking a declaration that they cannot be evicted forcefully from the properties in Sy.No.218/1 R.S.No.178 of Vazhakkala Village and for a direction to the respondents to refrain from evicting the petitioners from the land possessed by them.
5. Respondents have filed a counter affidavit. Paragraph 6 of the counter affidavit reads as follows:
It is submitted that the land shown in Sy.No.218 (Re.Sy.No.178) of Vazhakkala Village is in the absolute and uninterrupted possession and enjoyment of the Government. Government has already reclaimed substantial portion of the said land for the rehabilitation of the evictees of Vallarpadam Container Terminal project and issued pattayam to them. This land has been included in the land bank maintained in the Land Revenue Commissioner, Thiruvananthapuram. At present none of the petitioners in the above writ petition are possessing any Government land in Re.Sy.No.178 (Old Sy.No.218) in Block 9 of Vazhakkala. The entire land in the said Sy.No. is Government land and under the uninterrupted and perpetual possession of Government.
6. Thus it is clear that the petitioners are claiming W.P.(C) No.5775 of 2010 4 possession of the land, over which Govt. asserts actual possession and even utilization of the same for rehabilitation of evictee of Vallarpadam; hence Govt. finds that the question of eviction does not arise in such a case. According to Govt., the land in question is not in the possession or occupancy of the petitioners and no eviction is necessary and no eviction is possible of those who are not in actual possession. In these circumstances, this Court cannot be called upon to issue any futile writ directing the respondents not to evict the petitioners forcefully.
7. At any rate, it is admitted that petitioners' claim is over Government land. In the light of the uncontraverted averments contained in the counter affidavit, I do not find any merit in the writ petition. It is made clear that this judgment will not stand in the way of petitioners in resorting to any other proceedings, if available in accordance with law, from any appropriate forum.
With the above observations, this writ petition is dismissed.
Sd/-
P.V.ASHA, JUDGE.
AS