Gopalakrishnan P.A vs State Of Kerala
2021 Latest Caselaw 483 Ker

WP(C).464/2021(S)                   -1-



               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

            THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                     &

               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

   THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942

                        WP(C).No.464 OF 2021(S)


PETITIONER/S:

                GOPALAKRISHNAN P.A
                AGED 71 YEARS
                S/O. LATE CHELLAMMA, PADINJAREPANAYIDA HOUSE,
                PUNNACKAL, ELAMAKKARA P.O, ELAMAKKARA, ERNAKULAM
                DISTRICT

                BY ADVS.
                SRI.P.P.BIJU
                SRI.P.S.ANISHAD

RESPONDENT/S:

        1       STATE OF KERALA
                REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT,
                DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM 695 001

        2       THE DISTRICT COLLECTOR,
                COLLECTORATE, KAKKANAD, ERNAKULAM DISTRICT 682 030

        3       THE REVENUE DIVISIONAL OFFICER,
                REVENUE DIVISIONAL OFFICE, FIRST FLOOR, K.B JACOB
                ROAD, FORT KOCHI, ERNAKULAM DISTRICT 682 001

        4       THE TAHSIDLAR,
                KANAYANNUR TALUK OFFICE, AMRINE DRIVE, ERNAKULAM
                682 011

        5       THE VILLAGE OFFICER,
                EDAPPALLI SOUTH VILLAGE, ERNAKULAM 682 028
 WP(C).464/2021(S)                -2-




        6       COCHIN MUNICIPAL CORPORATION,
                REPRESENTED BY SECRETARY, MARINE DRIVE, ERNAKULAM
                682 011

        7       ELAMAKKARA NSS KARAYOGAM NO. 2124,
                ELAMAKKARA P.O, ERNAKULAM DISTRICT, REPRESENTED BY
                ITS PRESIDENT, SRI SRI. T.N BABURAJ, AGED 50
                YEARS, S/O. LATE NARAYANAN NAIR, NARAYANEEYAM
                HOUSE, ELAMAKKARA P.O, PUNNACKAL, ERNAKULAM 682
                026


OTHER PRESENT:

                SRI. ARAVIND KUMAR BABU, SR GP FOR R1 TO R5, SRI.
                S.SUDHEESH KUMAR FOR R6

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 07.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C).464/2021(S)                          -3-




                              JUDGMENT

Dated this the 7th day of January, 2021 S. Manikumar, CJ

Claiming himself to be a law abiding citizen, petitioner has filed the

instant Public Interest Litigation for the following reliefs:-

"i) To issue a writ of mandamus or any other appropriate writ, direction or order of this Court directing the respondents Nos. 1 to 6, to evict the 7th respondent, Elamakkara NSS Karayogam No.2124, Ernakulam, from unauthorised possession of 6.162 cents of poramboku land in Survey No. 194/9 of Edappally South Village, Kanayannur Taluk, Ernakulam District, forthwith.

ii) To issue a writ of mandamus or any other appropriate writ, direction or order of this Court directing the 1 st respondent, State of Kerala, to pass orders on Exhibit-P5 notice dated 21.05.2008 issued by the 1st respondent, as per the direction of this Court expeditiously.

iii) To declare the possession of 6.162 cents of poramboku land in Survey No. 194/9 of Edappally South Village, Kanayannur Taluk, Ernakulam District, by the 7 th respondent, is unauthorised occupation.

iv) To issue a writ of mandamus or any other appropriate writ, direction or order of this Court directing the 6 th respondent -

Cochin Municipal Corporation represented by Secretary, not to WP(C).464/2021(S) -4-

number the building constructed by the 7 th respondent, in 6.162 cents of poramboku land in Survey No. 194/9 of Edappally South Village, Kanayannur Taluk, Ernakulam."

2. Facts leading to the filing of the writ petition are that 7th

respondent, Elamakkara NSS Karayogam No.2124, Ernakulam, is a

registered Society, represented by the President, and that the said Society

is functioning for the welfare and prosperity of Nair Community.

According to the petitioner, 7th respondent is in unauthorised possession of

6.162 cents of Government land in Survey No. 194/9 of Edappally South

Village, for the past so many years; that the 7 th respondent has no authority

to possess the Government land, without any document or patta. On

09.04.1976, the Special Munsiff, Land Tribunal had issued Exhibit-P1

purchase certificate to the 7th respondent Society for 2.5 cents of land.

3. Petitioner has contended that though the Government property

was occupied by the 7th respondent, as per the Kuthakappattom given by

the Paravur Taluk Kacheri on (ME) 17th Edavam 1124, taking advantage

of Exhibit-P1, adjacent to that property, 6.162 cents of poramboku land in

Survey No. 194/9 of Edappally South Village, is illegally possessed by the

7th respondent for the past so many years. Moreover, without renewing the WP(C).464/2021(S) -5-

Kuthakapattom and without obtaining permission from the Government,

7th respondent had constructed a new building having a plinth area of

55.38 m2 and the rooftop having a plinth area of 55 m2 has been used for

marriage functions.

4. Petitioner has further contended that the land was given to the 7 th

respondent for the purpose of conducting a library (Vayana Shala). But,

the 7th respondent had constructed a building having a plinth area of more

than 1000 square feet and let out about 15 shoprooms for business, on

rental basis. Respondent No.6, without conducting a proper enquiry, has

issued a building permit and on the strength of that permit, the 7 th

respondent had constructed the building.

5. Petitioner has also contended that though the construction has

been completed, the Cochin Municipal Corporation, represented by

Secretary, respondent No.6, has not numbered the building so far.

6. Petitioner has submitted that considering the violation and

non-renewal of Kuthakappattom, the 1st respondent has issued Exhibit-P3

order dated 03.10.2007. That apart, as per the direction of this Court, the

1st respondent has issued Exhibit-P5 notice dated 21.05.2008 and heard the WP(C).464/2021(S) -6-

7th respondent, but no order has been passed so far. Hence, the 7 th

respondent has submitted an application to the 1 st respondent for

assignment of the poramboku land and the 1st respondent had issued

Exhibit-P6 notice dated 11.06.2014 to the 7th respondent informing the

fact that the application cannot be considered, since the Land Revenue

Commissioner, Thiruvananthapuram, has not recommended the same.

Challenging the said notice, 7th respondent has filed W.P.(C) No. 26618 of

2014 and this Court has stayed the notice.

7. Petitioner has further submitted that 6 years' period have elapsed,

due to the pendency of the writ petition and respondents 1 to 6 have not

taken any steps to evict the 7th respondent from the unauthorised

possession of 6.162 cents of poramboku land in Survey No. 194/9 of

Edappally South Village, Kanayannur Taluk, Ernakulam District.

Petitioner has also contended that the 7th respondent has no right to

possess Government land and to get assignment of the poramboku land, as

per the provisions of Kerala Land Assignment Act, 1964.

8. Heard Mr. P. P. Biju, learned counsel for the petitioner, and

perused the material on record.

WP(C).464/2021(S) -7-

9. Even going by the averments made by the petitioner, it can be

seen that the 7th respondent, who is said to have constructed a building,

has sought for assignment of land. Exhibit-P6 is the answer to the

requests (applications dated 21.11.2012 and 04.01.2013 of respondent No.

7) and it is reproduced hereunder:

"GOVERNMENT OF KERALA

No. 84031/A3/07/RD Revenue (A) Department Thiruvananthapuram Dated 11.06.2014

From Principal Secretary to Government

To President, NSS Karayogam No. 2124, Kochi - 682 026.

Sir,

Sub: Revenue Department - request to assign the land - Reg. Ref: 1. Your application dated 21/11/12 & 4/01/2013.

2. Lr. No. LRJ7/34355/13 dated 06/12/13 from Land Revenue Commissioner, Thiruvananthapuram.

******* Inviting attention to the reference cited, I am to inform you that your request to assign the land cannot be considered as Land Revenue Commissioner, Thiruvananthapuram has not recommended the same.

                                                             Yours faithfully,
 WP(C).464/2021(S)                     -8-




                                               Stella Little Flower, M.K.
                                                          Under Secretary
                                  for Principal Secretary to Government
           Approved for issue
           Section Officer"

10. Indisputably, even as per the averments made by the petitioner,

Exhibit-P6 notice has been challenged by the 7 th respondent in W.P.(C)

No. 26618 of 2014 and there is an order of stay.

11. On a perusal of Exhibit-P6, it can be prima facie observed that

the request for assignment of land has been turned down for the reason

that it cannot be considered as the Land Revenue Commissioner,

Thiruvananthapuram, has not recommended the same. Contention of

Mr. Biju P. P., learned counsel for the petitioner, that Exhibit-P6 is only an

information to the 7th respondent and not an order, cannot be

countenanced. When W.P.(C) No. 26618 of 2014 has been filed against

Exhibit-P6, and there is an order of stay passed by a learned Single Judge

of this Court, relief sought for in this Public Interest Litigation that

respondents 1 to 6 be directed to evict the 7 th respondent from the

unauthorised possession of 6.162 cents of poramboke land in Survey No.

194/9 of Edappally South Village, cannot be granted.

WP(C).464/2021(S) -9-

12. Material on record discloses that the Government, after

considering the request, have turned down the same, which is the subject

matter of the writ petition. Reliefs sought for in this writ petition cannot

be granted, as they would be curtailing the rights of the 7 th respondent to

seek for assignment and it is always open to the Government to justify

Exhibit- P6 letter dated 11.06.2014.

In the light of the above, we are not inclined to entertain the instant

Public Interest Litigation. Accordingly, this writ petition is dismissed.

Sd/-

S.MANIKUMAR CHIEF JUSTICE

Sd/-

SHAJI P.CHALY JUDGE

Eb

///TRUE COPY///

P. A. TO JUDGE WP(C).464/2021(S) -10-

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PURCHASE CERTIFICATE DATED 09.04.1976 ISSUED BY THE SPECIAL MUNSIFF LAND TRIBUNAL.

EXHIBIT P1(A) TRUE COPY OF ENGLISH TRANSLATION OF EXHIBIT-P1.

EXHIBIT P2 TRUE COPY OF THE KUTHAKAPPATTOM(ME)17TH EDAVAM 1124 ISSUED BY THE PARAVUR TALUK KACHERY WITH TYPED COPY.

EXHIBIT P2(A) TRUE ENGLISH TRANSLATION OF EXHIBIT.P2.

EXHIBIT P3 TRUE COPY OF THE ORDER NO.G.O.

(MS)NO.353/07/REV.THIRUVANANTHAPURAM DATED 03.10.2007 ISSUED BY THE DEPUTY SECRETARY THIRUVANANTHAPURAM.

EXHIBIT P3(A) TRUE ENGLISH TRANSLATION OF EXHIBIT -P3.

EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 05.11.2017 IN WP(C)NO.32720/2007 OF THIS HON'BLE COURT.

EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 21.05.2008 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P5(A) TRUE ENGLISH TRANSLATION OF EXHIBIT-P5.

EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 11.06.2014 ISSUED BY THE 1ST RESPONDENT.