Mannuthy Mahallu Juma Masjid vs Assistant Executive Engineer
2021 Latest Caselaw 15219 Ker

WP(C) NO. 14420 OF 2021           1

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
         THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
     TUESDAY, THE 20TH DAY OF JULY 2021 / 29TH ASHADHA, 1943
                      WP(C) NO. 14420 OF 2021
PETITIONER:

             MANNUTHY MAHALLU JUMA MASJID
             WAKF REGISTRATION NO.9260/RA, MARKET ROAD, MANNUTHY
             P.O., THRISSUR - 680 650, REPRESENTED BY SHIHAB
             K.A., SECRETARY OF THE MAHALLU JUM-ATH COMMITTEE.

             BY ADVS.
             P.RAMAKRISHNAN
             PREETHI RAMAKRISHNAN (P-212)
             T.C.KRISHNA
             C.ANIL KUMAR
             ASHA K.SHENOY
             PRATAP ABRAHAM VARGHESE



RESPONDENTS:

     1       ASSISTANT EXECUTIVE ENGINEER
             PUBLIC WORKS DEPARTMENT, ROADS SUB DIVISION,
             CHEMBUKAVU, THRISSUR - 680 020.

     2       M.K.VARGHESE
             S/O.M.V.KOCHAPPU, MENACHERY HOUSE, MANNUTHY,
             THRISSUR - 680 650.



             SMT. A.C. VIDHYA, GOVERNMENT PLEADER




      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   20.07.2021,   THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 14420 OF 2021              2

                                  JUDGMENT

Instant writ petition is filed seeking to quash Ext.P5 order and for a

declaration that the petitioner can be evicted from any encroachment only

after conducting a comprehensive survey and after duly complying with the

provisions of the Land Conservancy Act, 1958 and the Rules framed

thereunder.

2. The petitioner is the Mannuthy Mahallu Juma Masjid, represented

by its Secretary. It is contended that the Juma Masjid owns an item of

property having an extent of 0.0283 Hectares in Sy. No.297/12P of Ollukkara

Village. The said property was acquired on the strength of sale deeds dated

6.12.1977 and 20.08.1991. They contend that they are in absolute title,

possession and enjoyment of the said property. Reliance is placed on Ext.P1

tax receipt to evince the fact that tax was being paid.

3. The petitioner contends that pursuant to orders issued by this

Court in W.P.(C) No.34452/2017 instituted by the 2nd respondent, the

petitioner was served with Ext.P3 notice purportedly issued under Rule 13A of

the Land Conservancy Rules, 1958. It was mentioned in the notice that the

petitioner had trespassed into 55 sq. mts. of puramboke land and had put up

constructions. The said notice was challenged before this Court and by Ext.P4

judgment dated 4.4.2019, this Court proceeded to quash the notice holding

that no reasons had been stated as mandated under the relevant statutory

provisions. However, liberty was granted to the 1st respondent to issue fresh

notice in strict compliance with Rule 13A of the Rules. In purported

compliance, Ext.P5 order has now been issued. The petitioner contends that

on receipt of Ext.P5, a detailed objection was filed as is evident from Ext.P10.

However, the petitioner was neither summoned for a hearing on the issue nor

were they asked to produce records to substantiate their contentions.

Instead, the officers of the 1st respondent has informed the petitioner that

the encroachments would be removed. It is in the above backdrop that the

petitioner is before this Court seeking to quash Ext.P5 and for incidental

reliefs.

4. I have heard Sri. P.Ramakrishnan, the learned counsel appearing

for the petitioner and Smt. K. Amminikutty, the learned senior Government

Pleader. In the nature of the order that I propose to pass, notice to the party

respondent is dispensed with.

5. Under Rule 13A of the Rules, where the Collector is of the opinion

that it is expedient in the public interest to remove an unauthorised

occupation, he may after recording the reasons, therefore, serve or caused to

serve a notice in Form CC appended to the Rules on the person in occupation

directing him to vacate the said land within such period as may be specified

therein, and if the land is not so vacated, any officer authorised by the

Collector may enter upon the land and take possession of the same. A

perusal of Ext.P5 order purportedly issued under Rule 13A of the Rules would

show that the mandatory formalities have not been complied with. The

notice is not one issued under Form CC and no schedule is also attached.

6. The learned Government Pleader has fairly submitted that Ext.P5

order is not one issued in compliance of Rule 13A of the Rules.

In that view of the matter, the petitioner is entitled to succeed. Ext.P5

order will stand quashed and if the circumstances so warrant, the 1st

respondent shall issue fresh notice in strict adherence to the provisions of the

Act and Rules and proceed accordingly. Coercive proceedings, if any, initiated

against the petitioner on the cover of Ext.P5 shall not be pursued until then.

This writ petition is disposed of.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE NS

APPENDIX OF WP(C) 14420/2021

PETITIONER,S EXHIBITS

Exhibit P1 TRUE COPY OF TAX RECEIPT DATED 14/7/2021 ISSUED FROM THE VILLAGE OFFICE, OLLUKARA.

Exhibit P2 TRUE COPY OF JUDGMENT DATED 30/10/2017 IN WP(C) NO.34452/2017.

Exhibit P3 TRUE COPY OF NOTICE DATED 15/3/2019 ISSUED BY THE 1ST RESPONDENT.

Exhibit P4 TRUE COPY OF JUDGMENT DATED 4/4/2019 IN WP(C) NO.9537 OF 2019.

Exhibit P5 TRUE COPY OF ORDER DATED 24/1/2020 ISSUED BY THE 1ST RESPONDENT.

Exhibit P6 TRUE COPY OF SURVEY SKETCH PREPARED IN 2014.

Exhibit P7 TRUE COPY OF SURVEY SKETCH PREPARED IN 2019.

Exhibit P8 TRUE COPY OF QUERY MADE UNDER THE RIGHT TO INFORMATION ACT.

Exhibit P9 TRUE COPY OF REPLY DATED 19/2/2020 RECEIVED FROM THE INFORMATION OFFICER.

Exhibit P10 TRUE COPY OF REPLY DATED 3/2/2020 SUBMITTED BY THE PETITIONER.