Kerala High Court

Shyamala vs Annexure-R3(A) The True Copy Of ... on 27 January, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

    WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942

                        WP(C).No.566 OF 2021(U)


PETITIONER/S:

                SHYAMALA
                AGED 60 YEARS
                W/O. LATE CHELLAPPAN, SHEENA BHAVAN, MELOODU P.O,
                PERINGANAD VILLAGE, ADOOR TALUK,
                PATHANAMTHITTA DISTRICT-691 523

                BY ADVS.
                SRI.K.SHAJ
                SRI.RENJIT GEORGE
                SRI.C.IJLAL
                SMT.UMMUL FIDA
                SRI.JOSEPH MARY DAS
                SRI.ARUN CHAND
                SHRI.BHARAT VIJAY P.
                SHRI.MAJID MUHAMMED K.
                SHRI.ANANDU R.
                SHRI.ARUL K.S
                SHRI.SHYJU C.T

RESPONDENTS

      1         STATE OF KERALA
                REPRESENTED BY THE CHIEF SECRETARY,
                GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001

      2         THE DISTRICT COLLECTOR,
                PATHANAMTHITTA DISTRICT-689 645

      3         THE EXECUTIVE ENGINEER
                PUBLIC WORKS DEPARTMENT (ROAD DIVISION),
                PATHANAMTHITTA-689 645

      4         KERALA STATE TRANSPORT PROJECT,
                REPRESENTED BY ITS EXECUTIVE ENGINEER,
                KOTTARAKARA-691 531


                SMT A.C.VIDHYA-GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                  2

WP(C).No.566 OF 2021(U)

                            JUDGMENT

The petitioner, who is stated to be in occupation of 2.51 ares

of land comprised in survey No.270/1/1 (Re-survey No.202/11) of

Peringanad village, which is situated on the southern side of the

Kayamkulam-Pathanapuram State Highway, has filed this writ

petition under Article 226 of the Constitution of India, seeking writ

of certiorari to quash Ext.P5 notice dated 23.11.2020 issued by the

3rd respondent Executive Engineer, Public Works Department,

(Roads Division), Pathanamthitta; a writ of mandamus

commanding the respondents not to deprive the petitioner of the

property occupied by her without taking recourse to the provisions

of the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013; and a writ

of mandamus commanding the 3rd respondent to hear the

petitioner on Exhibit P7 objection before taking any coercive steps

pursuant to Exhibit P5 notice.

2. On 08.01.2021, when this writ petition came up for

admission, the learned Government Pleader was directed to get

instructions. On 13.01.2021, it was submitted by the learned

Government Pleader that the 3rd respondent is yet to receive

WP(C).No.566 OF 2021(U)

Exts.P6 and P7. The learned counsel for the petitioner submitted

that the petitioner shall submit additional copy of Exts.P6 and P7

before the 3rd respondent on that day itself.

3. On 15.01.2021, when this writ petition came up for

consideration, this Court passed the following order;

"The learned Government Pleader would submit that a statement on behalf of the 3rd respondent shall be placed on record by 22.01.2021.

2. Ext.P5 notice, which is under challenge in this writ petition, is not one issued under the provisions of the Kerala Highway Protection Act, 1999 or under the provisions of the Kerala Land Conservancy Act, 1957.

3. The learned Government Pleader would submit that any coercive steps shall be taken only after issuing a notice to the petitioner invoking the provisions under the Kerala Highway Protection Act, 1999"

4. A statement has been filed on behalf of the 3 rd

respondent. Paragraph 3 and 4 of that statement read as follows:

"3.It is submitted that black spot identified through survey by NATPAC in Kayamkulam-Pathanapuram road (K.P.Road).

One of the black spots is at 14 th mile of K.P. Road under the jurisdiction of PWD Roads Division, Pathanamthitta. Based on their report, PWD Roads Division, Pathanamthitta has arranged the work "NATPAC road safety work eradication Black spot in K.P.Road at 14th Mile". The department has given letter to the Tahsildar, Adoor for demarking the road boundary as per letter No.DB/21/PDM/2018 dated,

WP(C).No.566 OF 2021(U)

10.07.2020. Based on the above letter, the Taluk Surveyor in the presence of the officials of the department demarked the road and laid the boundary stone and it is proven that the petitioner's property is within the boundary of the road. So the Assistant Executive Engineer, PWD Road, Sub Division, Adoor has issued a notice on behalf of the Executive Engineer, PWD Roads Division, Pathanamthitta directing the petitioner to remove the encroachment or otherwise proceedings under Highway protection Act 1999 and Land Conservancy Act 1957 (8 of 1958) will be initiated to vacate the premises encroached by the petitioner. The Assistant Executive Engineer again addressed the Tahsildar Adoor on 18/12/2020 in order to make sure whether the land is road 'Purambokku' and submit a sketch of the land as per letter No.A2-1015/2020. The 3rd respondent again send a reminder on 19.1.2021 to the Tahsildar, Adoor to submit the sketch. But the same has not been received from the Tahsildar, Adoor. The true copy of the reminder issued on 19.01.2021 is produced herewith and marked as Annexure-R3(a). The petitioner has submitted Ext.P6 representation dated 30/11/2020 to the Assistant Executive Engineer, PWD Roads Sub Division, Adoor. In this representation it is admitted that the disputed land is 'Purambokku' and the petitioner claims that she and her ancestors have been keeping this land in absolute possession and enjoyment for years. The above petition was received in the office of the Executive Engineer, PWD Roads Division, Pathanamthitta on 13/01/2021 only.

4. It is submitted that all road 'Purambokku' land are

WP(C).No.566 OF 2021(U)

under the custody of the Public Works Department. No officials from the department reached the place on 06/01/2021 and demanded her to remove her belongings in the aforesaid property. The department has no intention to encroach the disputed land before hearing the petitioner. As the petitioner himself as admitted that he is in possession of Puramboke land, he is not entitled to compensation under Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act 30 of 2013). In the above circumstances it is respectfully submitted that this respondent will evict the petitioner in accordance with provisions of Land Conservancy Act, 1957 and Kerala Highway Protection Act, 1999 after hearing the petitioner."

5. Heard the learned counsel for the petitioner and also

the learned Government Pleader for the respondents.

6. The grievance of the petitioner is against Ext.P5 notice

dated 23.11.2020 issued by the 3rd respondent. Admittedly, the

property in question having an extent of 2.51 ares comprised in

survey No.270/1/1 (Re-survey No.202/11) is purmaboke land. By

Ext.P5 notice of the 3rd respondent the petitioner was informed

that, in case he fails to give vacant possession of the property,

appropriate proceedings will be initiated against her, under the

provisions of the Kerala Highway Protection Act, 1999 and the

Kerala land Conservancy Act, 1957.

WP(C).No.566 OF 2021(U)

7. Now, as can be seen from the statement filed by the 3 rd

respondent Executive Engineer, the Taluk Surveyor has

demarcated the boundary of Kayamkulam-Pathanapuram State

Highway, in front of the property in question and laid the boundary

stone, in the presence of the officials of the department, as per

which the petitioner's property is within the boundary of the road.

Therefore, the 3rd respondent has issued Ext.P5 notice to the

petitioner. Thereafter, the Assistant Executive Engineer again

addressed the Tahsildar (LR), Adoor, to submit a sketch of the land

on 18.12.2020 in order to make sure that the land in question is

road puramboke. The 3rd respondent sent Annexure R3(a)

reminder on 19.01.2021.

8. The learned Government Pleader would submit that on

receipt of the sketch of the road puramboke, from the Tahsildar

(LR), Adoor, as sought for in Annexure R3(a) reminder dated

19.1.2021, the 3rd respondent will issue a fresh notice to the

petitioner, invoking the provisions under provisions of the Kerala

Highway Protection Act, 1999 or any other applicable law.

9. The learned counsel for the petitioner would submit that

the survey and further proceedings may be with notice to the

WP(C).No.566 OF 2021(U)

petitioner.

10. Having considered the submissions made by the learned

counsel on both sides, this writ petition is disposed of with the

following directions:

(i) The 3rd respondent Executive Engineer shall

ensure that the sketch of road puramboke, as sought

for in Annexure R3(a) communication dated

19.01.2021, is obtained from the Tahsildar (LR), Adoor,

with notice to the petitioner, within a period of two

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

judgment.

(ii) On receipt of the sketch from the Tahsildar (LR),

the 3rd respondent shall issue a notice under the

provisions of the Kerala Highway Protection Act, 1999 or

under any other applicable law, enclosing therewith a

copy of the sketch, requiring the petitioner to submit his

explanation, if any, within the time limit specified

therein.