Anil V. A vs The Tahsildar (Lr)
2021 Latest Caselaw 2185 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

         THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

 WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA,
                          1942

                  WP(C).No.27603 OF 2020(A)


PETITIONER:

              ANIL V. A.
              AGED 65 YEARS
              S/O. KUNHU VAIDHYAR, PERUMBODATH PARAMBIL,
              S.R.M. ROAD, ERNAKULAM DISTRICT.

              BY ADV. SRI.C.M.MOHAMMED IQUABAL

RESPONDENTS:

     1        THE TAHSILDAR (LR)
              KANAYANNUR TALUK OFFICE, ERNAKULAM DISTRICT,
              PIN - 682 011.

     2        THE VILLAGE OFFICER
              ERNAKULAM VILLAGE, ERNAKULAM DISTRICT,
              PIN - 682 018.

     3        THE DISTRICT SURVEYOR, ERNAKULAM
              DEPARTMENT OF SURVEY AND BOUNDARIES,
              COLLECTORATE P. O., KAKKANAD, ERNAKULAM
              DISTRICT, PIN - 682 030.

     4        THE TALUK SURVEYOR
              KANAYANNUR TALUK OFFICE, ERNAKULAM DISTRICT,
              PIN - 682 011.

     5        KOCHI MUNICIPAL CORPORATION
              CORPORATION OFFICE, PARK AVENUE, ERNAKULAM
              DISTRICT, PIN - 682 011, REPRESENTED BY ITS
              SECRETARY.
                                     -2-
WP(C).No.27603 OF 2020(A)

       6      JOSY
              S/O. THOMAS, VALIYAPARAMBIL, TAGORE LANE,
              S.R.M. ROAD, ERNAKULAM DISTRICT, PIN - 682
              018.

       7      SHEELA MADHU
              W/O. MADHU, 'BHARATHAM' TAGORE LANE, S.R.M.
              ROAD, ERNAKULAM DISTRICT, PIN - 682 018.

              R1   TO   4 BY   SR.GOVT.PLEADER SMT.K.AMMINIKUTTY
              R5   BY   ADV.   SMT.P.SAREENA GEORGE
              R6   BY   ADV.   SRI.ANIL S.RAJ
              R6   BY   ADV.   SMT.K.N.RAJANI
              R6   BY   ADV.   SRI.K.P.SHIBU
              R6   BY   ADV.   SMT.P.A.SULEKHA
              R6   BY   ADV.   SRI.RADHIKA RAJASEKHARAN P.
              R6   BY   ADV.   SMT.ANILA PETER
              R6   BY   ADV.   SRI.SAJEN THAMPAN


     THIS WRIT PETITION (CIVIL) HAVING COME UP                FOR
ADMISSION ON 20.01.2021, THE COURT ON THE SAME                DAY
DELIVERED THE FOLLOWING:
                                        -3-
WP(C).No.27603 OF 2020(A)


                               JUDGMENT

The petitioner, who is residing near to Tagore Lane

situated in S.R.M.Road, has filed this writ petition under

Article 226 of the Constitution of India, seeking a writ of

certiorari to quash Ext.P9 order dated 13.11.2020 issued by

the 1st respondent Tahsildar (LR). The petitioner has also

sought for a writ of mandamus commanding respondents 1 to

5 to take steps to remove the encroachment in the

Government purmaboke situated in R.S.No.37/10 of

Ernakulam Village, for the purpose of restoring the way

leading to the residences of the petitioner and others.

2. The petitioner had earlier approached this Court in

W.P.(C)No.17651 of 2019 challenging the order dated

10.06.2019 of the Revenue Divisional Officer, Fort Kochi. That

writ petition was disposed of by Ext.P6 judgment dated

18.09.2019. Paragraph 2 and operative portion of the said

judgment read thus;

"2. Apart from the challenge made as above, the petitioner has a case that puramboke land has been encroached by the party respondents and therefore,

WP(C).No.27603 OF 2020(A)

the land conservancy proceedings should be initiated. Taking note of the contention, this Court called for a report from the Village Officer. The Village Officer filed a report stating that there is no puramboke land as claimed by the petitioner between the petitioner's property and the seventh respondent's property.

If there is any encroachment, the petitioner is free to take up the matter before the Tahsildar. If the petitioner makes any representation before the Tahsildar, the Tahsildar shall take up the representation to its logical conclusion. If necessary the assistance of the Taluk Surveyor shall be obtained. Needful shall be done on such representation after hearing the petitioner and the party respondents within a period of four months from the date of receipt of the representation."

3. Pursuant to the direction contained in Ext.P6

jdugment, the petitioner submitted Ext.P7 representation

dated 30.09.2019 before the 1st respondent Tahsildar (LR). On

receipt of the said representation, the 1 st respondent issued

Ext.P8 notice dated 16.11.2020 requiring the petitioner and

others to appear for a personal hearing scheduled on

23.11.2020. Even before the issuance of Ext.P8 notice, the 1 st

WP(C).No.27603 OF 2020(A)

respondent, by Ext.P9 order dated 13.11.2020 rejected Ext.P7

representation made by the petitioner. The grievance of the

petitioner is that Ext.P9 order is one issued in violation of the

direction contained in Ext.P6 judgment and also in violation of

the principles of natural justice.

4. On 14.12.2020, when this writ petition came up for

admission, this Court issued notice before admission to the

respondents. The learned Government Pleader took notice for

respondents 1 to 4 and the learned Standing Counsel took

notice for the 5th respondent. Urgent notice by speed post was

ordered to respondents 6 and 7.

5. Heard the learned counsel for the petitioner, the

learned Senior Government Pleader appearing for respondents

1 to 4 and also the learned Standing Counsel for the 5 th

respondent Corporation. Despite service of notice, none

appears for respondents 6 and 7.

6. The issue that arises for consideration in this writ

petition is as to whether Ext.P9 order dated 13.11.2020 of the

1st respondent can be sustained in law.

WP(C).No.27603 OF 2020(A)

7. The learned counsel for the petitioner would submit

that Ext.P9 order is one issued without conducting a personal

hearing, contrary to the direction contained in Ext.P6

judgment.

8. The learned Senior Government Pleader would

submit that the 1st respondent issued Ext.P9 order in view of

the contempt proceedings initiated by the petitioner.

9. Having considered the submissions made by the

learned counsel on both sides, this Court finds that Ext.P9

order issued by the 1st respondent is one issued in violation of

the principles of natural justice, inasmuch as, the petitioner

and other affected persons were not afforded with an

opportunity of being heard. On that sole ground, Ext.P9 order

cannot be sustained.

In such circumstances, this writ petition is disposed of by

setting aside Ext.P9 order dated 13.11.2020 of the 1 st

respondent and by directing the said respondent to reconsider

the matter and take an appropriate decision, with notice to

the petitioner and respondents 6 and 7, strictly in compliance

WP(C).No.27603 OF 2020(A)

with the direction contained in Ext.P6 judgment, as

expeditiously as possible, at any rate, within a period of six

weeks from the date of receipt of a certified copy of this

judgment.

Sd/-

ANIL K.NARENDRAN, JUDGE

AV/21/1

WP(C).No.27603 OF 2020(A)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER AND OTHERS BEFORE THE RDO FORT KOCHI DATED 14.06.2016.

EXHIBIT P2 THE TRUE COPY OF THE COMMUNICATION ISSUED BY THE RDO FORT KOCHI DATED 27.08.2016.

EXHIBIT P3 THE TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 20.06.2017.

EXHIBIT P4 THE TRUE COPY OF THE JUDGMENT IN W.P.

(C) NO.24113/2017 OF THIS HON'BLE COURT DATED 7.6.2018

EXHIBIT P5 THE TRUE COPY OF THE ORDER OF THE REVENUE DIVISIONAL OFFICER, FORT KOCHI DATED 10.06.2019.

EXHIBIT P6 THE TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.17651/2019 DATED 18.09.2019.

EXHIBIT P7 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONE R BEFORE THE 1ST RESPONDENT DATED 30.09.2019.

EXHIBIT P8 THE TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 16.11.2020.

EXHIBIT P9 THE TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 13.11.2020.