Nafeesa Hajjumma vs The State Of Kerala
2021 Latest Caselaw 19649 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
    FRIDAY, THE 17TH DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943
                       WP(C) NO. 19805 OF 2020
PETITIONER:

          NAFEESA HAJJUMMA
          AGED 74 YEARS
          W/O. BEERANKUTTY HAJI, VALIYAPEEDIYAKKAL HOUSE,
          THIROORANGADI AMSOM, ULLANAM DESOM, TIROOR TALUK,
          MALAPPURAM-676303.

          BY ADVS.
          B.KRISHNAN
          SRI.R.PARTHASARATHY
          SMT.SEEMA


RESPONDENTS:

    1     THE STATE OF KERALA,
          REPRESENTED BY SECRETARY, PUBLIC WORKS DEPARTMENT,
          SECRETARIAT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-
          695001.

    2     THE ASSISTANT ENGINEER,
          PUBLIC WORKS DEPARTMENT, PARAPPANANGADI, MALAPPURAM
          DISTRICT-676303.

    3     THE TAHSILDAR,
          THIRURANGADI TALUK, CHEMMAD, THIRURANGADI, MALAPPURAM-
          676306.

    4     THE TALUK SURVEYOR,
          THIRURANGADI TALUK, THIRURANGADI, AHEMMAD, MALAPPURAM-
          676306.

          BY ADV GOVERNMENT PLEADER


          SMT K AMMINIKUTTY,SR GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
17.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 19805 OF 2020
                                    2



                               JUDGMENT

The petitioner has approached this Court impugning

Exts.P9 and P12 proceedings of the Assistant Engineer, Public

Works Department, Parappanangadi, asserting that said officer

obtained no authority in law to have issued the same. The

petitioner points that the allegations in Exts.P9 and P12 are that

she is in unauthorised occupation of "puramboke land", but that

this is wholly incorrect because she is its owner, in uninterrupted

possession, on the strength of Exts.P1 Purchase Certificate and

P4 Partition Deed.

2. The petitioner alleges that Exts.P9 and P12 have been

issued asking her, to evict from the property in question, even

without hearing her and without following the provisions of the

Kerala Land Conservancy Act or any other applicable Statute or

Regulations.

3. The afore submissions of the petitioner made by the

learned counsel - Sri.Parthasarathy, were answered by WP(C) NO. 19805 OF 2020

Smt.K.Amminikkutty - learned Senior Government Pleader,

saying that Exts.P9 and P12 have not been issued under the

provisions of the Kerala Land Conservancy Act, but under the

Highway Protection Act. She, however, conceded, to a pointed

question from this Court, that the Assistant Engineer does not

obtain any Authority under Section 4 of the said Act, but

explained that said notices have not been issued as per Section

15(1) thereof, but were only intended to notify the petitioner that

she is in unauthorised occupation of Government land. She then

added that any further action with respect to the property in

question will be taken forward only by the competent Authority,

namely the Executive Engineer; and that too after following due

procedure. She then submitted that, in fact, the Executive

Engineer has already issued a notice to the petitioner under

Section 15(1) of the Act and prayed that he may be permitted to

continue further proceedings thereon as per law.

4. In reply, Sri.Parthasarathy submitted that his client is

yet to be served with any notice under Section 15(1) of the Act by WP(C) NO. 19805 OF 2020

the Executive Engineer and, therefore, prayed that this Court

direct the said Authority not to take any further action.

5. It becomes indubitable, when I evaluate the afore

submissions, that the Assistant Engineer cannot seek eviction of

the petitioner from the property in question, but any such action

can be initiated only by the Executive Engineer and after

notifying the petitioner under Section 15(1) of the Highway

Protection Act. Even though the learned Government Pleader

says that such a notice has been issued, since the petitioner

asserts otherwise, I am of the view that the Executive Engineer

must issue a fresh notice to her in terms of law, before any further

action is taken.

In the afore circumstances, I allow this writ petition,

recording the submissions of the learned Senior Government

Pleader that Exts.P9 and P12 are only notices to inform the

petitioner that she is in unauthorised occupation and that any

further action will be taken against her only after the competent

Executive Engineer issues a notice under Section 15(1) of the WP(C) NO. 19805 OF 2020

Highway Protection Act and after following due procedure

thereafter.

Sd/-

DEVAN RAMACHANDRAN JUDGE SAS/17/09/2021 WP(C) NO. 19805 OF 2020

APPENDIX OF WP(C) 19805/2020

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS BY TAHSILDAR, TIRUR DATED 15/12/1988.

EXHIBIT P2 TRUE COPY OF RECEIPT FOR PAYMENT DATED 20/01/1990.

EXHIBIT P3 TRUE COPY OF THE FIELD PLAN IDENTIFYING THE LAND ASSIGNED.

EXHIBIT P4 TRUE COPY OF THE PARTITION DEED DATED 19/01/1990.

EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN WPC NO.33161/2004 DATED 27/10/2005.

EXHIBIT P6 TRUE COPY OF THE APPLICATION UNDER RIGHT TO INFORMATION DATED 27/02/2013.

EXHIBIT P7 TRUE COPY OF THE REPLY DATED 08/03/2013.

EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN WPC NO.21714/2019 DATED 27/08/2019.

EXHIBIT P9 TRUE COPY OF THE NOTICE DATED 01/11/2019 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P10 TRUE COPY OF THE LETTER DATED 13/01/2020 BY PETITIONER TO TAHSILDAR, TIRURANGADY.

EXHIBIT P11 TRUE COPY OF THE REPLY DATED 31/01/2020 BY THE TAHSILDAR TO THE PETITIONER.

EXHIBIT P12 TRUE COPY OF THE NOTICE ISSUED BY 2ND RESPONDENT DATED 17/02/2020.