Kerala High Court
Raju Shamsudeen vs State Of Kerala on 22 April, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 22ND DAY OF APRIL 2022 / 2ND VAISAKHA, 1944
WP(C) NO. 14338 OF 2022
PETITIONERS:
RAJU SHAMSUDEEN
S/o SHAMSUDEEN, 48 YEARS,
PALAYAMKOT HOUSE, SHAMS COTTAGE,
THRITHALLUR P.O., THRISSUR - 680 619
BY ADV DILIP J. AKKARA
RESPONDENTS:
1 THE STATE OF KERALA
REP.BY SECRETARY TO GOVERNMENT,
DEPARTMENT OF REVENUE, SECRETARIAT
PALAYAM, THIRUVANANTHAPURAM - 695001
2. THE DISTRICT COLLECTOR, THRISSUR,
CIVIL STATION, AYYANTHOLE, THRISSUR - 680003
3. THE ASSISTANT EXECUTIVE ENGINEER,
PWD ROADS SECTION, CHEMBUKAVU, THRISSUR - 680020
4. DISTRICT SURVEY SUPERINTENDENT, THRISSUR,
COLLECTORATE, AYYANTHOLE, THRISSUR - 680003
BY ADV.
GP.SRI RAJEEV JYOTHISH GEORGE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 14338 OF 2022
2
JUDGMENT
The above writ petition is filed challenging Ext.P4 notice and
Ext.P5 survey sketch. Based on Ext.P5 survey sketch the petitioner was
issued with Ext.P4 notice under Rule 13A of the Kerala Land
Conservancy Rule.
2. As per the averment in the writ petition, the petitioner is in
ownership of 2.88 Ares of property in Sy.No.137/2 of Pullazhi Village
and a building bearing Nos.10/160/1, 2, 3, 4, 5, 6 of Thrissur
Corporation. The 3rd respondent issued Ext.P4 eviction notice under the
Land Conservancy Rules alleging that the petitioner has encroached
Government Puramboke land. The petitioner had on receipt Ext.P4
notice made enquiries and it was learnt that the 4 th respondent has
allegedly conducted a survey in Olari-Pullazhi Road and noted certain
encroachments and Ext.P5 is the photocopy of the encroachment sketch
of Olari-Pullazhi Road issued by the 4th respondent. It is the case of the
petitioner that Ext.P5 survey is not properly conducted and the
petitioner and other locals were not notified and they are not aware of
any such survey that has taken place. It is aggrieved by the issuance of
WP(C) NO. 14338 OF 2022
Ext.P4 notice based on Ext.P5 survey sketch that the petitioner has
approached this Court. The learned counsel appearing for the petitioner
submitted that similar cases have been considered by this Court and the
learned counsel handed over to me a copy of the judgment in W.P.(C)
No.1288 of 2022 dated 06.04.2022 and contended that he is also
entitled for a similar relief since in W.P.(C) No.1288 of 2022 also the
issue was with regard to the survey of the very same Olari- Pullazhi
road.
3. I have considered the rival contentions of the parties. As
against Ext.P5 survey sketch prepared pursuant to a survey conducted
by the 4th respondent, the petitioner has an effective alternative remedy
to challenge the same under the Kerala Survey and Boundaries Act and
Rules and that this Court under Article 226 of the Constitution of India
cannot enter into the assessment of the various factual and documentary
materials and inputs as are requested and it is for the petitioner to avail
the statutory remedy to challenge Ext.P5 as per the provisions of the
Kerala Survey and Boundaries Act and Rules. As regard Ext.P4 notice
is concerned which is alleged to be issued invoking Rule 13A of the
WP(C) NO. 14338 OF 2022
Land Conservancy Rules, it is the contention of the petitioner that no
final order under Section 12 of the Land Conservancy Act has been
issued. Even though Rule 13A of the Land Conservancy Rules
authorizes the Revenue Authorities to dispense with the procedure
under Section 12 of the Land Conservancy Act, it is well settled that the
provisions of a statute cannot be overridden by the provisions of the
Rules which is only a Subordinate Legislation and therefore, the
competent authorities are obliged to act as per the provisions of the
Land Conservancy Act. Therefore, I feel that Ext.P4 notice shall be
treated only as a preliminary one and the petitioner should be granted
liberty to file objection to it so that necessary action under Section 12 of
the Land Conservancy Act can be completed in terms of law.
In view of the same, the above writ petition is disposed of with
following directions:
(a) the contest of the petitioner against Ext.P5 survey sketches
and reports are left without being considered on its merits by this Court;
with liberty being reserved to him to approach the competent
Authorities under the Survey and Boundaries Act and Rules. For this
WP(C) NO. 14338 OF 2022
purpose, all his contentions with respect to the said issue are left open
to be impelled and pursued by him as per law.
(b) As far as the impugned notice evidenced by Ext.P4 issued
under Rule 13A of the "LC Rules" is concerned, it will be treated as
show cause notice and the petitioner will be at liberty to file
objections to the same; and if this is done so within a period of
two weeks from the date of receipt of a copy of this judgment,
the competent Authority will hear him and examine his objections thus
leading to appropriate final order under Section 12 of the "LC Act".
(c) I make it clear that any further action with respect to the
eviction of the petitioner from the property in question will be taken
forward only after the exercise already in (b) above is completed and
the resultant orders communicated to him.
Sd/-
VIJU ABRAHAM
JUDGE
SCS
WP(C) NO. 14338 OF 2022
APPENDIX OF WP(C) 14338/2022
PETITIONER EXHIBITS
Exhibit P1 PHOTOCOPY OF TAX RECEIPT NO. H 7214620
DATED 24-09-12 ISSUED BY VILLAGE OFFICER
PULLAZHI:
Exhibit P2 PHOTOCOPY OF POSSESSION CERTIFICATE
NO.4622/13 DATED 31-08-13 ISSUED BY
VILLAGE OFFICER PULLAZHI TO PETITIONER:
Exhibit P3 PHOTOCOPY OF BUILDING TAX RECEIPT
NO.0394969 DATED 31-3-22 ISSUED BY
CORPORATION OF THRISSUR:
Exhibit P4 PHOTOCOPY OF EVICTION NOTICE DATED 4-10-
21 ISSUED BY 3RD RESPONDENT UNDER LAND
CONSERVANCY RULES 13 TO PETITIONER:
Exhibit P5 PHOTOCOPY OF ENCROACHMENT SKETCH
I/III/1/27 OF OLARI-PULLAZHI ROAD IN
ARANATTUKKARA VILLAGE ISSUED BY 4TH
RESPONDENT:
Exhibit P6 PHOTOCOPY OF REPRESENTATION DATED 10-11-
21 ISSUED BY PETITIONER TO 3RD
RESPONDENT:
Exhibit P7 PHOTOCOPY OF MASTER PLAN OF THRISSUR
CITY ISSUED BY THE PRINCIPAL SECRETARY
TO GOVERNMENT:
Exhibit P7A PHOTOCOPY OF ENLARGED PORTION OF EXT.P-8
MASTER PLAN SHOWING OLARI PULLAZHI ROAD
Exhibit P8 PHOTOCOPY OF OFFICIAL SURVEY MAP OF
FIELD NO 300 ARANATTUKARA VILLAGE
(OLARI-PULLAZHI ROAD) DATED 8-3-2022
ISSUED BY THE 3RD RESPONDENT
Exhibit P9 PHOTOCOPY OF REPLY DATED 24-11-2021 TO
RTI QUERY BY 1ST PETITIONER IN WPC
1288/22 FROM PUBLIC INFORMATION OFFICER
AND SUPERINTENDENT TOWN PLANNING
DIVISION THRISSUR CORPORATION
Exhibit P10 COMMUNICATION DATED 19-11-2021 ISSUED BY
3RD RESPONDENT AS TO INTENDED EXTEND OF
OLARI-PULAZHI ROAD DEVELOPMENT
