Hassan Koya vs The State Of Kerala
2021 Latest Caselaw 20842 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
    WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
                      WP(C) NO. 17436 OF 2021
PETITIONER:
     1     HASSAN KOYA,
           AGED 64 YEARS
           S/O. USMAN, C4, INDIRA NAGAR HOUSING COLONY, MANICHIRA,
           POOMALA POST, SULTHAN BATHERY, WAYANAD, PIN-673 592.

    2      MUHAMMED SULTHAN,
           S/O. HASSAN KOYA, C4, INDIRA NAGAR HOUSING COLONY,
           MANICHIRA, POOMALA POST, SULTHAN BATHERY, WAYANAD, PIN-
           673 592

          BY ADVS.
          P.K.MOHAMED JAMEEL
          RAFFEEKH.K
          SUNIL KUMAR P.M


RESPONDENTS:
     1     THE STATE OF KERALA,
           REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE,
           GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM, PIN-695 001

    2     THE DISTRICT COLLECTOR,
          WAYANAD, KALPETTA NORTH POST, WAYANAD, PIN-673 122

    3     THE DEPUTY COLLECTOR (LR),
          COLLECTORATE, KALPETTA NORTH POST, WAYANAD, PIN 673 122

    4     THE TAHSILDAR,
          TALUK OFFICE, SULTHAN BATHERY, WAYANAD DISTRICT, PIN-
          673 592

    5     THE VILLAGE OFFICER,
          SULTHAN BATHERY VILLAGE OFFICE, WAYANAD DISTRICT, PIN-
          673 592

          SMT. SURYA BINOY- SR. G.P

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 17436 OF 2021               2

                                JUDGMENT

The 2nd petitioner is stated to be the owner of

a property, comprised of 8 cents of land in Resurvey

No.13/2 of Block No.1(Old Survey No.521/1) of

Sulthan Bathery Village and he claims title to it

through Ext.P1. The petitioners say that the first

among was the original owner, while the second among

them purchased it through the afore mentioned title

deed.

2. The petitioners say that they have been in

possession of the property for the last several

decades and therefore, that they have preferred

Ext.P5 application for assignment of the same in

their favour before the 2nd respondent - District

Collector, under the mandate of Ext.P4 Government

Order.

3. The petitioners say that in spite of the fact

that Ext.P5 application is still pending, Ext.P6

order has been issued by the Tahsildar (Land

Records), evicting them from the said property and

holding that they are encroachers of it, but without

following due procedure and without even affording

them necessary opportunity of being heard. The

petitioners, therefore, pray that Ext.P6 be set

aside and the 2nd respondent - District Collector be

directed to take up Ext.P5 application for

assignment and dispose it of in terms of Ext.P4

Government Order.

4. When this matter was called today, the

learned counsel for the petitioners submitted that

the respondents have acted in violation of the

interim order dated 31.08.2021 and that an

application has been filed seeking necessary action

to be taken against them.

5. The learned Senior Government Pleader,

Smt.Surya Binoy, in response, submitted that the

afore allegations of the petitioners, that the

interim order of this Court has been violated, is

without any basis because the Board installed in

their property was done even prior to it having been

issued. On the merits of the matter, Smt.Surya Binoy

submitted that there does not appear to be any legal

impediment in the 2nd respondent considering Ext.P5

application; but prayed that this Court may not pass

any orders in favour of the petitioners in this

judgment and leave it to the said Authority to take

an apposite decision thereon as per law.

6. When I consider the afore submissions, it is

clear that this Court will not be in a position to

consider the disputations of facts, including as to

whether there has been a violation of the interim

order, while acting under Article 226 of the

Constitution of India.

7. I am, however, certain that the status quo

with respect to the property as regard its further

construction or the alteration of its lie or nature,

will have to be maintained so that the 2nd respondent

- District Collector can consider the petitioners'

application for assignment as per law, adverting to

Ext.P4 Government Order.

Resultantly, I allow this writ petition and set

aside Ext.P6; with a consequential direction to the

2nd respondent - District Collector, to take up

Ext.P5 application of the petitioners for assignment

of the land and dispose it of, after affording them

an opportunity of being heard and to produce

necessary documents in their favour and adverting to

Ext.P4 Government Order; thus culminating in an

appropriate order thereon, as expeditiously as is

possible, but not later than three months from the

date of receipt of a copy of this judgment.

Needless to say, until such time as the afore

exercise is completed and the resultant order

communicated to the petitioners, the petitioners

will maintain status quo as on date with respect to

the property in question; however being entitled to

use it, but without changing its lie or nature or

altering its boundaries or committing waste thereon,

in any manner whatsoever

Needless to say, the official respondents will

also maintain status quo as on today, awaiting the

further orders to be issued by the District

Collector in terms of my afore directions.

At this time, the learned Senior Government

Pleader intervened to say that this Court may allow

the 2nd respondent or such other competent authorized

Officer to take a decision on Ext.P5. Of course, if

there is an authorized Officer as per the provisions

of law to decide Ext.P5, the afore directions shall

apply as if they have been made to the said

Authority.

Sd/-

DEVAN RAMACHANDRAN JUDGE MC/6.10

APPENDIX OF WP(C) 17436/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE SALE DEED DATED 03.01.2013.

Exhibit P2 TRUE COPY OF G.O(MS)NO. 322/2010/REV.

DATED 04.08.2010.

Exhibit P3 TRUE COPY OF THE ORDER DATED 24.8.2017 ISSUED BY THE GOVERNMENT REVENUE DEPARTMENT.

Exhibit P4 TRUE COPY OF THE G.O(MS) NO.

86/2019/REVENUE DATED 01.03.2018.

Exhibit P5 TRUE COPY OF THE APPLICATION DATED 11.03.2019 FOR ASSIGNMENT OF LAND ON REGISTRY.

Exhibit P6 TRUE COPY OF THE ORDER DATED 26.08.2021 BY THE 5TH RESPONDENT.

Exhibit P7 TRUE COPY OF THE PHOTOGRAPH OF THE SHED THE PROPERTY

Exhibit P8 TRUE COPY OF THE PHOTOGRAPH OF THE PROPERTY AFTER DESTRUCTION OF THE SHED