Vijyakumari vs State Of Kerala
2022 Latest Caselaw 145 Ker

                      IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

                   THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

              TUESDAY, THE 11TH DAY OF JANUARY 2022 / 21ST POUSHA, 1943

                              WP(C) NO. 27875 OF 2021

PETITIONER:

               VIJYAKUMARI,
               AGED 64 YEARS
               W/O. N.P. BALAKRISHNAN, DARSANA, PARUKANDY HOUSE, GVS ROAD, WEST
               HILL (POST), EDAKKAD DESOM, PUTHIYANGADI VILLAGE, KOZHIKODE
               TALUK, KOZHIKODE DISTRICT-673005.

               BY ADV JESWIN P.VARGHESE



RESPONDENTS:

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

     2         THE DISTRICT COLLECTOR,
               CIVIL STATION P.O., KOZHIKODE-670020.

     3         THE TAHSILDAR (LAND REFORMS),
               CIVIL STATION P.O., KOZHIKODE-670020.

     4         KOZHIKODE MUNICIPAL CORPORATION,
               MAIN OFFICE, BEACH P.O., KOZHIKODE-673032, REPRESENTED BY ITS
               SECRETARY.

     5         P. HARIDASAN,
               RESIDING AT SREELAYAM, WEST HILL (POST),
               KOZHIKODE DISTRICT-673005.

               BY ADV RENI JAMES


OTHER PRESENT:

               SMT.K.AMMINIKUTTY - SR.G.P.
               SMT. BINDUMOL JOSEPH - S.C.


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2022,

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 27875 OF 2021

                                        2




                                JUDGMENT

The petitioner alleges that even though she is in occupation of

the property involved in this case, on which she has constructed a

residential house on the strength of the valid permit issued by the 4 th

respondent - Corporation, she has now been issued with Ext.P6

notice under Rule 11 of the Kerala Land Conservancy Rules

(hereinafter referred to as 'the Rules' for short), alleging that she is in

unauthorized occupation of 1.21 cents of 'Puramboke Land'.

2. The petitioner says that the findings in Ext.P6 are

egregiously improper and that she has, therefore, preferred Ext.P7

objections against it before the Tahsildar. She thus, prays that either

the Tahsildar be directed to take up Ext.P7 and dispose of the same

as per law, or that Ext.P6 be quashed because the complaints from

which, it has emanated, namely Exts.P3 and P4, have been preferred

by the 5th respondent solely on account of his enmity to her and not

because there is any actual trespass or encroachment.

3. Smt.Reethu Jacob - learned counsel appearing for the

petitioner, argued that Ext.P6 could not have been issued by the

Tahsildar since, under Rule 4 of the Rules, a notice in Form-A thereof,

ought to have been first issued, after conducting a proper enquiry, WP(C) NO. 27875 OF 2021

which is a mandatory requirement. She contended that, therefore,

issuance of Ext.P6 notice in Form C, without issuing to her client

notices in Forms A and B is illegal; and therefore, reiteratingly,

prayed that this writ petition be allowed.

4. The afore submissions were, however, controverted by

Smt.K.Amminikutty, learned Senior Government Pleader, saying that

petitioner has been issued notices in Forms A and B of the Rules, as

early as on 24.07.2017 and 16.03.2018 respectively; but that since

she did not respond to them, the Tahsildar had no other option to

issue Ext.P6 notice on 08.11.2021. She submitted that, therefore, the

only prayer that can be now granted by this Court is that the

Tahsildar be permitted to take up Ext.P7 objections and dispose it of.

5. In reply, Smt.Reethu Jacob, learned counsel for the

petitioner reiteratingly submitted that her client has never received

any notice prior to Ext.P6 and that the afore submissions of the

learned Senior Government Pleader, does not appear to be true. She

prayed that, therefore, if this Court is inclined to direct the Tahsildar

to take up Ext.P7 objections and dispose it of, then her client may

also be allowed to impel the contention that she had not received

notices under Forms A or B and to consequently, assail Ext.P6 on

that ground.

WP(C) NO. 27875 OF 2021

6. Smt.Bindhumol Joseph, learned Standing Counsel for the

4th respondent - Corporation, submitted that her client has no role to

play at this stage, because it is for the Tahsildar to take an apposite

decision on the petitioner's objections, namely Ext.P7.

7. Smt.Reni James, learned counsel appearing for respondent

No.5, submitted that her client had preferred Exts.P3 and P4

complaints before the District Collector, which has led to the present

proceedings. She argued that the contention of the petitioner, that

she had not received any notices prior to Ext.P6, is factually incorrect

since, as is evident from Rule 11 of the Rules, Ext.P6 in Form C could

have been issued only after Forms A and B notices had been made to

the petitioner.

8. When I evaluate the afore submissions, as rightly stated by

the learned Senior Government Pleader, the petitioner has already

approached the Tahsildar by preferring Ext.P7 objections against

Ext.P6 notice.

9. Obviously, therefore, it is upto the said Authority to

consider the same, including as to the question whether prior notices

under Forms A and B of the Rules, had been issued to her.

Resultantly, I order this writ petition, leaving liberty to the

petitioner to make an additional plea before the 3 rd respondent - WP(C) NO. 27875 OF 2021

Tahsildar, if she is so desirous, impelling her contention that she was

not issued with any notice prior to Ext.P6, within a period of two

weeks from the date of receipt of a copy of this judgment; in which

event, said Authority will consider the same, along with Ext.P7 and

dispose it of, after affording her and the 5th respondent necessary

opportunity of being heard; 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 parties, all

further action for dispossession of the petitioner from the property in

question shall stand deferred and will be taken forward only as per

the decision to be taken by the Tahsildar.

It goes without saying that this Court has not entered into the

merits of any of the contentions of the rival parties and that all of

them are left open to be pursued by them before the 3 rd respondent -

Tahsildar, when the afore exercise is completed.

SD/-

DEVAN RAMACHANDRAN JUDGE rp WP(C) NO. 27875 OF 2021

APPENDIX OF WP(C) 27875/2021

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF PURCHASE CERTIFICATE ISSUED BY LAND TRIBUNAL, VATAKARA DATED 21/10/1976.

Exhibit P2 A TRUE COPY OF GIFT DEED REGISTERED AS DOC NO.

1139/1983 OF SRO, VATAKARA DATED 04/05/1983.

Exhibit P3 A TRUE COPY OF REPRESENTATION SUBMITTED BEFORE 2ND RESPONDENT DATED 19/04/2016.

Exhibit P4 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY 5TH RESPONDENT DATED 21/10/2017.

Exhibit P5 A TRUE COPY OF THE COUNTER STATEMENT SUBMITTED BY THE WRIT PETITIONER BEFORE THE 3RD RESPONDENT DATED 30/04/2018.

Exhibit P6 A TRUE COPY OF THE NOTICE UNDER FORM C ISSUED BY THE 3RD RESPONDENT DATED 08/11/2021.

Exhibit P7 A TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 3RD RESPONDENT DATED 23/11/2021.

Exhibit P8 A TRUE COPY OF APPLICATION SUBMITTED BEFORE THE 3RD RESPONDENT DATED 24/11/2021.