Kerala High Court
Mini vs Assistant Executive Engineer Pwd ... on 23 February, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 23RD DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943
OP(C) NO. 277 OF 2022
AGAINST THE JUDGMENT DATED 22.01.2022 IN CMA 61/2021 OF
ADDITIONAL DISTRICT COURT, IRINJALAKUDA ON APPEAL AGAINST THE
ORDER DATED 11.10.2021 IN IA 3/2021 IN OS 144/2021 OF
ADDITIONAL SUB COURT, IRINJALAKUDA
PETITIONERS/APPELLANTS/PLAINTIFFS:
1 MINI
AGED 47 YEARS,
W/O.PUNNELIPARAMBIL SHIBU, CHALAKUDY TALUK,
PERAMBRA VILLAGE AND DESOM, TRISSUR DISTRICT.
2 TONY
AGED 52 YEARS
S/O.PUDUSSERY KATTALAN ITTYERA, POTTA VILLAGE AND
DESOM, CHALAKUDY TALUK, TRISSUR DISTRICT.
3 SHAJU
AGED 51 YEARS
S/O.CHANKAN JOSE, POTTA VILLAGE AND DESOM,
CHALAKUDY TALUK, TRISSUR DISTRICT.
4 TOLSTOY
AGED 43 YEARS
S/O.PYANADATH LONA, POTTA VILLAGE AND DESOM,
CHALAKUDY TALUK, THRISSUR DISTRICT.
5 INDU
AGED 37 YEARS
W/O.CHAMAVALAPPIL SEBASTIAN, PERAMBRA DESOM AND
VILLAGE, CHALAKUDY TALUK, TRISSUR DISTRICT.
6 BHASI
AGED 61 YEARS
S/O.OLLUKKARAN EKKORUKUTTY, POTTA DESOM AND
VILLAGE, CHALAKUDY TALUK, TRISSUR DISTRICT.
7 POULOSE
AGED 56 YEARS
S/O.NEDUMPARAMBIL ETTECHAN, PERAMBRA VILLAGE AND
DESOM, CHALAKUDY TALUK, TRISSUR DISTRICT.
8 SHAJU
AGED 41 YEARS
S/O.CHAMAVALAPPIL ETTECHAN, PERAMBRA DESOM,
CHALAKUDY TALUK, TRISSUR DISTRICT.
O.P(C).No.277/2022 2
9 RAJIN
AGED 47 YEARS
S/O.KOKKADAN JOSE, POTTA DESOM AND VILLAGE,
CHALAKUDY TALUK, TRISSUR DISTRICT.
10 SEENA
AGED 34 YEARS
W/O.CHANKAN SHAJU, POTTA DESOM AND VILLAGE,
CHALAKUDY TALUK, TRISSUR DISTRICT.
11 JOY
AGED 50 YEARS
S/O.CHAMAVALAPPIL CHUMMAR, POTTA DESOM AND
VILLAGE, CHALAKUDY TALUK.
12 JOICY
AGED 57 YEARS
S/O.MENACHERY JOSHY, PERAMBRA VILLAGE, CHALAKUDY
TALUK, TRISSUR DISTRICT.
13 RANI
AGED 51 YEARS
W/O.POOTHEKKADAN PAILY, POTTA DESOM, PERAMBRA
VILLAGE, CHALAKUDY TALUK.
BY ADV T.N.MANOJ
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 ASSISTANT EXECUTIVE ENGINEER PWD ROADS
IRINJALAKUDA DESOM AND VILLAGE, NEAR KOODAL
MANIKYA TEMPLE, IRINJALAKUDA POST - 680 121,
TRISSUR DISTRICT.
2 THE DISTRICT COLLECTOR
AYYANTHOLE, TRISSUR DISTRICT, TRISSUR POST - 680
003.
3 KERALA STATE REPRESENTED BY THE DISTRICT COLLECTOR
TRISSUR, TRISSUR POST - 680 003.
FOR R1 - R3 SENIOR GOVERNMENT PLEADER SRI DENNY
DEVASSY
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
16.02.2022, THE COURT ON 23.02.2022 DELIVERED THE FOLLOWING:
O.P(C).No.277/2022 3
"C.R"
A. BADHARUDEEN, J.
================================
O.P(C). No.277 of 2022
================================
Dated this the 23rd day of February, 2022
JUDGMENT
Plaintiffs in O.S.No.144 of 2021 on the file of Additional Sub
Court, Irinjalakuda, are the petitioners herein and they impugn
order in C.M.A.No.61/2021 on the file of the Additional District
Judge, Irinjalakuda, under Article 227 of the Constitution of India.
Respondents herein are the defendants in the above Suit.
2. Heard Advocate T.N.Manoj, the learned counsel
appearing for the petitioners and Sri Denny Devassy, the learned
Government Pleader appearing for the respondents.
3. Short facts: The plaintiffs herein filed the Original Suit
O.S.No.144/2021 and sought for the relief of declaring their title
over plaint `B' item properties 1 to 13, formerly part of old National
Highway, by adverse possession and limitation. Further there is
prayer in the Suit to separate the boundary between the plaint items
`A' to `B' properties with `C' schedule property.
4. The respondents herein are Government and its officials,
who are defendants in the Suit.
5. Along with the Suit, the plaintiffs filed I.A.No.3/2021
seeking interim injunction restraining the respondents - the District
Collector and State of Kerala, from forcefully evicting the plaintiffs
from plaint `B' schedule items till the disposal of the Suit.
6. The Government filed objection and resisted the interim
injunction application. Thereafter, as per order dated 11.10.2021,
the learned Sub Judge dismissed the application. The plaintiffs
filed CMA.61/2021 before the District Court, Thrissur and later
made over to Additional District Court, Irinjalakuda. The learned
Additional District Judge, after having re-appraised the evidence,
also confirmed the order of the learned Munsiff. Thus the
concurrent findings entered into by the trial court as well as the
appellate court are under challenge in this Original Petition filed
under Article 227 of the Constitution of India. The learned counsel
for the petitioners argued that the plaintiffs assert right of adverse
possession over the plaint `B' schedule items and it was contended
before the trial court specifically that the plaintiffs are in possession
and enjoyment of the plaint `B' schedule item for the last 40 years
in continuation of their predecessors. Further, it is argued by the
learned counsel for the petitioners that when notice was issued
under Section 12 of the Kerala Land Conservancy Act, 1957, to
evict the petitioners, they have filed an appeal and revision before
the Superintendent, Survey and Land Records and the said appeal
and revision are pending. The learned counsel urged that when the
right of adverse possession is claimed, such a Suit is not barred
even under Section 20 of the Land Conservancy Act and in support
of this contention, the learned counsel heavily relied on a decision
reported in [2018 (2) KLT 369], Harrisons Malayalam Ltd. & anr.
v. State of Kerala & Ors., rendered by a Division Bench of this
Court. According to the learned counsel for the petitioners, the
petitioners made out a prima facie case with elements of irreparable
injury and thus balance of convenience in this matter is also in
favour of the petitioners. Therefore, the courts below miserably
failed to address the grievance of the petitioners and in such
contingency this Court may address their grievance.
7. Per contra, the learned Government Pleader submitted
that the defendants initiated proceedings to evict the petitioners,
who unauthorisedly occupied portion of the old National Highway
road passing through Chalakkudy in obedience to a judgment
passed by this Court in W.P(C).No.29070/2019-G dated 09.12.2019
filed by one Babu Joseph Puthenangadi. In the said decision, this
Court directed the respondents to continue the survey work in the
area within the time stated in the statement and thereafter remove
the encroachments, if any, found pursuant to the survey. He also
argued that the new National Highway through Chalakkudi came
into existence only before 10 years and till then the old National
Highway was used. When the new road was formed, the
petitioners herein encroached upon the old Highway and extended
their business to the encroached portions of the old Highway.
Therefore, they could not claim right of adverse possession based
on their possession for the last 10 years. Therefore, the contention
as such shall not sustain prima facie. Further, the part of the
Highway road being encroached and annexed as part of their shop
room and the Government has the right or privilege to use the said
part of the Highway for widening the road or for other purposes, if
it is not necessary to maintain the said portion as part of the
National Highway. Thus no prima facie case made out by the
petitioners with elements of irreparable injury. To the contrary,
irreparable injury would be caused to the Government, in turn to
the general public, if public way is allowed to be retained by the
petitioners, and there is no scope for any irreparable injury to the
petitioners in a case where already they are in occupation of their
shop buildings and the removal of encroachments will no way
affect their business otherwise. Thus the balance of convenience is
also in favour of the respondents. Therefore, the trial court as well
as the appellate court concurrently found that the interim injunction
sought for cannot be allowed. He submitted further that this Court
cannot revisit or re-appreciate the evidence to have a contra finding
by exercising the limited power of superintendence under Article
227 of the Constitution of India. As such, this petition deserves
dismissal with cost of the defendants.
8. In response to the arguments advanced by both sides, I
have referred Section 12 of the Land Conservancy Act, 1957.
Section 12 reads as follows:
12. Prior notice to occupant etc.:-- The Collector shall, before
passing an order under this Act, give notice to the occupant or other
person likely to be affected by the order, and record any statement which
such occupant or person may make and any evidence which he may
adduce within a reasonable time, and all orders passed by the Collector
under this Act shall be in writing and under his hand:
[Provided that no such notice shall be necessary--
(I) When the Collector takes action under sub-section (3) of Section
11; or
(ii) in the case of any person unauthorisedly occupying any land
which is the property of Government, if, within a period of two years prior
to the date of such occupation, he had been evicted from such land under
Section 11 or had vacated such land voluntarily after the receipt of a notice
under this section or Section 11].
[The Collector may require any subordinate officer not below the
rank of Deputy Tahsildar or any other officer authorised by the
Government in this behalf to hold the enquiry as prescribed in the
preceding paragraph and submit the record to him; and on such record the
Collector may pass orders].
For the purpose of Section 199 of the Indian Penal Code the
proceedings taken by the Collector under this section shall be deemed to
be judicial proceedings."
As per Section 20, no Suit against the Government shall be
entertained in any civil court in respect of any order passed under
the Land Conservancy Act except upon the ground that the land in
respect of which such order has been passed is not a land which is
the property of the Government whether a poramboke or not.
Further Section 20A also provides as under:
"20A: Bar of jurisdiction of Civil Courts:-- [(1) No Civil Court
shall have jurisdiction to entertain any suit or other legal proceedings
against the Government in respect of any action taken by it for the
eviction of any person, who is in unauthorised occupation of any land
which is the property of Government, whether poramboke or not, or for
the recovery of any fine or any other sum due to the Government under
this Act.]
9. It is true that in the decision highlighted by the learned
counsel for the petitioners it was held that provisions in the Act
permits an occupant of land to file a suit for declaration of title, but
bars one against proceeding for eviction under the Act. In the
decision reported in [2001 KHC 93], Shamsudeen v. Travancore
Devaswom Board also, this Court held the same view. Therefore,
the question to be decided herein is whether the concurrent findings
entered into by the trial court as well as the appellate court required
to be unsettled by exercising the limited power of superintendence
provided under Article 227 of the Constitution. It is the settled law
that a court exercising power under Article 227 of the Constitution
of India cannot re-appreciate the evidence and undo every
illegalities and only the illegalities which make the order perverse
or arbitrary can be interfered. That apart, in the decision reported
in [2010 (2) SCC 461], Mandal Revenue Officer v. Goundla
Venkaiah & anr. when the Apex Court dealt with public property,
highlighted the duty of courts in such cases. The Apex Court held
that the court is duty bound to act with greater seriousness, care and
circumspection where the encroacher has perfected title by adverse
possession. The relevant paragraph (paragraph 47) of the judgment
is extracted hereunder:
"47. In this context, it is necessary to remember that it is well
neigh impossible for the State and its instrumentalities including the local
authorities to keep every day vigilance/watch over vast tracts of open land
owned by them or of which they are the public trustees. No amount of vigil
can stop encroachments and unauthorised occupation of public land by
unscrupulous elements, who act like vultures to grab such land, raise illegal
constructions and, at times, suceeded in manipulating the State apparatus
for getting their occupation/possession and construction regularized. It is
our considered view that where an encroacher, illegal occupant or land
grabber of public property raises a plea that he has perfected title by
adverse possession, the Court is duty bound to act with greater seriousness,
care and circumspection. Any laxity in this regard may result in destruction
of right/title of the State to immovable property and give upper hand to the
encroachers, unauthorised occupants or land grabbers."
In another decision reported in [2000 (5) SCC 652], State of
Rajasthan v. Harphool Singh, the Honourable Supreme Court
observed as under:
"12. So far as the question of perfection of title by adverse
possession and that too in respect of public property is concerned, the
question requires to be considered more seriously and effectively for the
reason that it ultimately involves destruction of right/title of the State to
immovable property and conferring upon a third-party encroacher title
where he had none. The decision in P.Lakshmi Reddy v. L.Lakshmi Reddy
(AIR 1957 SC 314) adverted to the ordinary classical requirement - that it
should be nec vi, nec clam, nec precario - that is the possession required
must be adequate in continuity, in publicity and in extent to show that it is
possession adverse to the competitor. It was also observed therein that
whatever may be the animus or intention of a person wanting to acquire
title by adverse possession, his adverse possession cannot commence until
he obtains actual possession with the required animus."
In another decision reported in [2007 (7) SCC 482],
A.A.Gopalakrishnan v. Cochin Devaswom Board, in para.10 the
Supreme Court expressed as under:
"10. The properties of deities, temples and Devaswom
Boards, require to be protected and safeguarded by their
trustees/archakas/shebaits/employees. Instances are many where
persons entrusted with the duty of managing and safeguarding the
properties of temples, deities and Devaswom Boards have usurped and
misappropriated such properties by setting up false claims of
ownership or tenancy, or adverse possession. This is possible only
with the passive or active collusion of the authorities concerned. Such
acts of "fences eating the crops" should be dealt with sternly. The
Government, members or trustees of boards/trusts, and devotees
should be vigilant to prevent any such usurpation or encroachment. It
is also the duty of courts to protect and safeguard the properties of
religious and charitable institutions from wrongful claims or
misappropriation."
10. In [2000 (5) SCC 652], State of Rajasthan v. Harphool
Singh(dead) through his LRs, the Apex Court dealt with a case
some what similar to this case. That is to say, the suit property
therein was a plot of land measuring north-south 6 feet and east-
west 40 feet situated on Noha-Badra road at Noha. In the said case,
the plaintiff asserted right of adverse possession. Though the trial
court as well as the appellate court found adverse possession in
favour of the plaintiff, the Apex Court in an appeal filed by the
Rajasthan Government set aside the said finding and in the said
case the requirements to perfect adverse possession, viz. nec vi,
nec clam, nec precario ["without force, without secrecy, without
permission" or "peaceful, open, continuous] have been explained
and thereafter it was found that the possession of the plaintiff
therein could not be held as one with a hostile animus.
11. Coming to the facts of this case, portion of National
Highway was now encroached by the petitioners taking advantage
of the construction of a new road by acquiring properties adjacent
to the said road. A vital point to be noted herein is that the
encroached area is nothing but part of earlier existed National
Highway, which was constructed by the Government after
acquiring property by paying adequate consideration for the use of
public in general. Thereafter, the road was widened and thereby
the earlier road existed abutting the same. Later the same was
encroached upon by the petitioners herein. Such encroachments
should be viewed seriously and this Court is duty bound to address
the issue with extreme care and caution as observed by the Apex
Court in Mandal Revenue Officer v. Goundla Venkaiah & anr.'s
case (supra).
12. The learned Government Pleader submitted that the new
National Highway road came into existence just before 10 years
and therefore, the plaintiffs cannot assert use of the same for a
period of 45 years since the same was used as the National
Highway prior to construction of the new road abutting the same. It
is relevant to note that the petitioners have no documents prima
facie to substantiate their possession for a period of 45 years. The
available materials would go to show that by exploiting the
inaction of the Government officials (as usual) in resisting
encroachment in a time bound manner, the petitioners herein
encroached the public road and made the same as part of their shop
rooms. Encroachment into public road and thereafter claiming right
of adverse possession cannot be equated at par with the plea of
adverse possession in other circumstances. Therefore, I am of the
view that the plaintiffs miserably failed to prove a prima facie case
to substantiate the contention regarding right of adverse possession
claimed by them. Further the petitioners are carrying out business
excluding the encroached area in their shop rooms and, therefore, if
at all the encroachment is removed, there is no likelihood of any
irreparable injury to the petitioners and the irreparable injury would
be to the Government and the public in general, since public
property to be maintained for the use of general public at the
whims and fancy of the Government and in such properties nobody
could be allowed to retain possession. Thus the balance of
convenience is also in favour of the Government. In fact, the trial
court as well as the appellate court rightly found the said aspects
and dismissed the application.
13. The circumstances and in which matters, this Court can
interfere by its supervisory powers under Article 227 of the
constitution of India are dealt with in various decisions of the Apex
Court.
14. In [(2010) 8 SCC 329], Shalini Shyam Shetty v.
Rajendra Shankar Patil the Apex Court, while analysing the
scope and ambit of the power of superintendence under Article 227
of the Constitution, held that the object of superintendence, both
administrative and judicial, is to maintain efficiency, smooth and
orderly functioning of the entire machinery of justice in such a way
as it does not bring it into any disrepute. The power of interference
under Article 227 is to be kept to the minimum to ensure that the
wheel of justice does not come to a halt and the fountain of justice
remains pure and unpolluted in order to maintain public confidence
in the functioning of the tribunals and courts subordinate to the
High Court.
15. In [(2010) 9 SCC 385], Jai Singh v. Municipal
Corporation of Delhi, while considering the nature and scope of
the powers under Article 227 of the Constitution of India, the Apex
Court held that, undoubtedly the High Court, under Article 227 of
the Constitution, has the jurisdiction to ensure that all subordinate
courts, as well as statutory or quasi-judicial tribunals exercise the
powers vested in them, within the bounds of their authority. The
High Court has the power and the jurisdiction to ensure that they
act in accordance with the well established principles of law. The
High Court is vested with the powers of superintendence and/or
judicial revision, even in matters where no revision or appeal lies to
the High Court. The jurisdiction under this Article is, in some ways,
wider than the power and jurisdiction under Article 226 of the
Constitution of India. It is, however, well to remember the well
known adage that greater the power, greater the care and caution in
exercise thereof. The High Court is, therefore, expected to exercise
such wide powers with great care, caution and circumspection. The
exercise of jurisdiction must be within the well recognised
constraints. It cannot be exercised like a 'bull in a china shop', to
correct all errors of the judgment of a court or tribunal, acting
within the limits of its jurisdiction. This correctional jurisdiction
can be exercised in cases where orders have been passed in grave
dereliction of duty or in flagrant abuse of fundamental principles of
law or justice.
16. In [(2015) 12 SCC 39], K.V.S. Ram v. Bangalore
Metropolitan Transport Corporation, the Apex Court held that, in
exercise of the power of superintendence under Article 227 of the
Constitution of India, the High Court can interfere with the order of
the court or tribunal only when there has been a patent perversity in
the orders of the tribunal and courts subordinate to it or where there
has been gross and manifest failure of justice or the basic principles
of natural justice have been flouted. On the facts of the said case,
the Apex Court held that, when the Labour Court has exercised its
discretion keeping in view the facts of the case and the cases of
similarly situated workmen, the High Court ought not to have
interfered with the exercise of discretion by the Labour Court.
17. In [2016 (1) KHC1], Sobhana Nair K.N. v. Shaji S.G.
Nair, a Division Bench of this Court held that, the law is well
settled by a catena of decisions of the Apex Court that in
proceedings under Article 227 of the Constitution of India, this
Court cannot sit in appeal over the findings recorded by the lower
court or tribunal and the jurisdiction of this Court is only
supervisory in nature and not that of an appellate court. Therefore,
no interference under Article 227 of the Constitution is called for,
unless this Court finds that the lower court or tribunal has
committed manifest error, or the reasoning is palpably perverse or
patently unreasonable, or the decision of the lower court or tribunal
is in direct conflict with settled principles of law.
18. Thus, it is a settled law that this Court cannot sit in appeal
over the findings recorded by the trial court as well as the first
appellate court and the supervisory jurisdiction cannot be exercised
to correct errors of the order or judgment of the lower courts or
tribunals and the said exercise shall be to find out grave dereliction
of duty or flagrant abuse of fundamental principles of law or justice
or to meet an absolute illegality. Therefore, I am of the view that
no interference is called for in the orders impugned and
consequently the same are confirmed.
In the above circumstances, the Original Petition is devoid of
any merits and is accordingly dismissed.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
APPENDIX OF OP(C) 277/2022
PETITIONERS' EXHIBITS
Exhibit P1 TRUE COPY OF THE SKETCH OBTAINED FROM
THE OFFICE OF THE 1ST RESPONDENT.
Exhibit P2 TRUE COPY OF THE LAWYER NOTICE DATED
16/7/2021 ISSUED ON BEHALF OF THE
PETITIONERS.
Exhibit P3 TRUE COPY OF THE PLAINT DATED 14/9/2021
IN OS NUMBER 144 OF 2021 FILED BEFORE
THE COURT OF THE ADDITIONAL SUB COURT AT
IRINJALAKUDA.
Exhibit P4 TRUE COPY OF THE PETITION IA 3/2021
FILED IN THE SUIT OS.144 OF 2021 BEFORE
THE COURT OF THE ADDITIONAL SUB JUDGE AT
IRINJALAKUDA.
Exhibit P5 TRUE COPY OF THE COMMISSION REPORT DATED
24/9/2021 IN OS 144/2021 BEFORE THE
COURT OF THE ADDITIONAL SUB JUDGE AT
IRINJALAKUDA.
Exhibit P6 TRUE COPY OF THE OBJECTION DATED
4/10/2021 FILED ON BEHALF OF RESPONDENTS
1 TO 3, TO THE PETITION FOR INJUNCTION.
Exhibit P7 TRUE COPY OF THE ORDER DATED 11/10/2021
IN IA 3/2021 IN OS 144 OF 2021 BY THE
COURT OF THE ADDITIONAL SUB JUDGE AT
IRINJALAKUDA.
Exhibit P8 TRUE COPY OF THE MEMORANDUM OF APPEAL
CMA 61 OF 2021, FILED BEFORE THE COURT
OF THE DISTRICT JUDGE AT TRISSUR.
Exhibit P9 CERTIFIED COPY OF THE JUDGMENT DATED
22/1/2022 IN CMA 61/2021 OF THE
ADDITIONAL DISTRICT COURT AT
IRINJALAKUDA.
Exhibit P10 TRUE COPY OF THE JUDGMENT DATED
9.12.2019 IN WP(C).NO.29070/2019 OF THIS
COURT.
