Sumathi Haridas vs The State Of Kerala
2021 Latest Caselaw 13193 Ker

WP(C) NO. 8745 OF 2021         1

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
    THURSDAY, THE 24TH DAY OF JUNE 2021 / 3RD ASHADHA, 1943
                      WP(C) NO. 8745 OF 2021
PETITIONER :

          SUMATHI HARIDAS
          AGED 65 YEARS
          W/O LATE M.K.HARIDAS,
          'MUNDACKAL HOUSE',
          AIMCOMPU,KADANAD P.O,
          VELLILAPPALLY VILLAGE,
          MEENACHIL TALUK,
          KOTTAYAM DISTRICT-686653.

          BY ADVS.
                     SRI.S.SHANAVAS KHAN
                     SMT.S.INDU



RESPONDENTS :

    1     THE STATE OF KERALA
          REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT,
          DEPARTMENT OF REVENUE,GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM-695001.

    2     THE DISTRICT COLLECTOR,
          COLLECTORATE,KOTTAYAM-KUMILY ROAD,
          KOTTAYAM-686002.

    3     THE REVENUE DIVISIONAL OFFICER,
          REVENUE DIVISIONAL OFFICE,
          PALA-BYPASS ROAD,MEENACHIL,
          PALA,KOTTAYAM-686575.

    4     THE TAHASILDAR(LR),
          MINI CIVIL STATION,GROUND FLOOR,
          123,PALA-RAMAPURAM ROAD,
          PALA,KOTTAYAM-686576.

    5     THE VILLAGE OFFICER,
          VELLILAPPILLY VILLAGE,PALA-RAMAPURAM ROAD,
          EZHACHERRY,
          VELLILAPPILLY, MEENACHIL TALUK,
 WP(C) NO. 8745 OF 2021       2

          KOTTAYAM DISTRICT-686576.

    6     ADDL.R6.
          PARUKUTTIAMMA.P.R,
          AGED 72 YEARS, CHAVARANAL HOUSE, AIMCOMPU,
          KADANAD P.O, VELILAPPALLY VILLAGE, MEENACHIL TALUK,
          KOTTAYAM DISTRICT - 686 653
    7     ADDL.R7.
          RAVINDRANATHAN.C.K,
          AGED 73 YEARS, CHAVARAKKAL HOUSE, AIMCOMPU,
          KADANAD P.O, VELLILAPPALLY VILLAGE, MEENACHIL TALUK,
          KOTTAYAM DISTRICT - 686 653
    8     ADDL.R8.
          MATHEW ABRAHAM, AGED 75 YEARS, MODUR HOUSE,
          AIMCOMPU,
          KADANAD P.O, VELLILAPPALLY VILLAGE, MEENACHIL TALUK,
          KOTTAYAM DISTRICT - 686 653

    9     ADDL.R9.PHILIP MATHEW
          AGED 60 YEARS, MODUR HOUSE,
          AIMCOMPU,
          KADANAD P.O, VELLILAPPALLY VILLAGE, MEENACHIL TALUK,
          KOTTAYAM DISTRICT - 686 653
   10     ADDL.R10.
          SOSAMMA JOSEPH
          AGED 60 YEARS, MODUR HOUSE, AIMCOMPU,
          KADANAD P.O, VELLILAPPALLY VILLAGE, MEENACHIL TALUK,
          KOTTAYAM DISTRICT - 686 653
   11     ADDL.R11.
          JOSE P.T
          AGED 60 YEARS, PUTHAKUZHIYIL HOUSE, AIMCOMPU,
          KADANAD P.O, VELLILAPPALLY VILLAGE, MEENACHIL TALUK,
          KOTTAYAM DISTRICT - 686 653
          ADDL   R6  TO   R11  IMPLEADED   AS  PER   ORDER  IN
          I.A.No.2/2021 DATED 24.06.2021.
          SMT AMMINIKUTTY K, GOVERNMENT PLEADER



THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 8745 OF 2021              3

                                 JUDGMENT

This writ petition is filed being aggrieved by the steps taken by the

respondents 4 and 5 in proceeding with eviction proceedings on the strength

of Exts.P3 and P4 orders while Ext.P5 appeal challenging the aforesaid orders

are pending before the 3rd respondent.

2. According to the petitioner, based on complaints that about 5.66

Ares of property comprised in Sy. No. 118/2 was encroached by several

persons, proceedings under the Land Conservancy Act, 1957 was initiated.

The petitioner was also categorised as an encroacher and the proceeding

against her was numbered as L.C.No.7 of 2019. She contends that the survey

was conducted without noticing her and finally Ext.P3 order dated 8.3.2021

was issued by the 4th respondent. Ext.P4 is the notice in Form No. C. Ext.P3

and P4 would reveal that the 4th respondent has concluded that she has

constructed a house by encroaching upon 0.00.92 Ha. of land. Being

aggrieved by the aforesaid orders, the petitioner preferred Ext.P5 appeal

invoking section 16 of the Land Conservancy Act, 1957, that too within the

statutory period. Her grievance is that though a stay was prayed for, due to

the restrictions imposed due to the pandemic, the appeal was not taken up

for hearing. She contends that respondents 4 and 5 are now initiating

expeditious steps to evict the petitioner and her family members. It is in the

afore circumstances that the petitioner is before this Court seeking a direction

to the 3rd respondent to consider Exhibit-P5 Appeal including the prayer for

stay and for a further direction to direct the respondent Nos.4 and 5 to refrain

from proceeding further on the strength of Exhibits-P3 and P4 until Exhibit-P5

is disposed of.

3. The learned Government Pleader, on instructions, submitted that

it was pursuant to orders issued by this Court in W.P.(C) No.791 of 2020, that

the proceedings under the Land Conservancy Act were initiated against the

petitioner. It is contended that there is specific direction by this Court to

conclude the proceedings within a time frame. Reference is also made to the

notice produced by the petitioner to contend that the provisions of the

Conservancy Rules have been strictly complied with and it was after serving

notice to the encroachers that the proceedings were finalized. Finally, it is

submitted that immediately after passing of Exhibits-P3 and P4 orders,

symbolic possession has been taken over by the 4th respondent. However, it

is fairly submitted that the appeal is pending before the 3rd respondent.

4. I have considered the submissions advanced. I find that the

petitioner has approached the appellate forum challenging the legality and

sustainability of Ext.P3 and P4 orders. The appeal was filed within the

statutory period. Though the petitioner had sought for stay of proceedings, as

the petitioner was not granted an opportunity for advancing her contentions,

she was not able to obtain an order of stay. I am of the considered opinion

that until the appeal is disposed of in accordance with law, the respondent

will not be justified in evicting the petitioner from her homestead. Necessary

directions be issued to the 3rd respondent to expedite the hearing of the

appeal, so that the issues can be brought to the finality without further delay.

Resultantly, there will be a direction to the 3rd respondent to take up

Ext.P5 appeal and take a decision expeditiously, at any rate, within a period

of three months from the date of receipt of a copy of this judgment. Until the

appeal is finally disposed of as directed above, the status quo as on date shall

be maintained.

This writ petition is disposed of. No costs.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE sru

APPENDIX OF WP(C) 8745/2021

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 14/07/2020 IN W.P.(C)NO.791/2020 OF THIS HON'BLE COURT.

EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 06/01/2021 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE ORDER DATED 08/03/2021 OF THE 4TH RESPONDENT.

EXHIBIT P4 TRUE COPY OF FORM C RULE II NOTICE DATED 08/03/2021 INDICATING THE EXTENT OF ENCROACHMENT.

EXHIBIT P5 TRUE COPY OF THE APPEAL WITH PRAYER FOR STAY DATED 26/03/2021,PREFERRED BEFORE THE 3RD RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE RECEIPT EVIDENCING THE ACCEPTANCE OF EXT.P5.

RESPONDENTS' EXHIBITS:

NIL