Kerala High Court
Issac Kurian @ Shaji vs State Of Kerala on 18 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 18TH DAY OF MARCH 2022 / 27TH PHALGUNA, 1943
WP(C) NO. 3573 OF 2022
PETITIONER:
ISSAC KURIAN @ SHAJI,
AGED 63 YEARS
S/O.LATE DR.K.I.KURIAKOSE,
RESIDING AT KALAREEKKAL HOUSE, OONJAPPARA,
KEERAMPARA P.O.,
KOTHAMANGALAM, - 686691.
BY ADV MARY BENJEMIN
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
PUBLIC WORKS DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695001.
2 THE DISTRICT COLLECTOR,
OFFICE OF THE DISTRICT COLLECTOR,
ERNAKULAM- 682 030.
3 EXECUTIVE ENGINEER,
OFFICE OF THE EXECUTIVE ENGINEER,
ROADS DIVISION, PUBLIC WORKS DEPARTMENT,
MUVATTUPUZHA - 686668.
SRI.APPU P S, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 18.03.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.3573/2022
:2:
N. NAGARESH, J.
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W.P.(C) No.3573 of 2022
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Dated this the 18th day of March, 2022
JUDGMENT
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The petitioner, who is a retired Lecturer in Mar
Athanasius College, Kothamangalam, is before this Court
seeking to quash Ext.P4 and to declare that the respondents
have no right to order demolition of the shop room of the
petitioner.
2. The petitioner states that his father
Dr. K.I. Kuriakose executed Ext.P1 registered Will on
26.03.2008 consequent to which 1½ Cents of land in Survey
No.611/1A/132/45/209 of Keerampara Village devolved on
the petitioner. There is a shop room in the property, which
stands at Punnekkad Junction. One K.P. Varkey filed a writ
petition alleging that there are encroachments on the road.
W.P.(C) No.3573/2022
This Court, as per Ext.P3 judgment, directed the 2 nd
respondent-District Collector to oversee the process of
removal of encroachments and to fix boundaries of the road
after identifying the same.
3. Now, the petitioner has been issued with Ext.P4
notice directing the petitioner to demolish the encroachment.
The learned counsel for the petitioner urged that there may
be encroachments but the petitioner's shop room is not
encroaching any PWD Road. The petitioner is in possession
of the property on the strength of a valid Title Deed. The
boundaries of the road have not been fixed as directed by
this Court, with notice to the petitioner. Ext.P4 does not
indicate even the Survey number where the petitioner has
made encroachment. The Surveyor has not measured the
petitioner's property.
4. The 3rd respondent filed a Statement controverting
the arguments of the petitioner. The 3rd respondent stated
that the petitioner was fully aware of all these process of
surveying, demarcating and fixing of boundaries of road,
W.P.(C) No.3573/2022
which were jointly done by survey team and PWD officials,
under the supervision of District Collector and Executive
Engineer. Even after repeated request from the part of
PWD, the petitioner was not ready to remove the
encroachment and hence Ext.P4 notice was issued under
Section 15(1) and 15(2) of the Kerala Land Conservancy Act
and the Highway Protection Act.
5. The road boundaries have been demarcated by
Taluk Surveyor as per the Revenue records. The petitioner's
encroachment into the road puramboke is identified in the
sketch and boundary stones were laid by PWD in the
presence of the petitioner and Taluk Surveyors. Sufficient
time had been given to the petitioner to produce approved
document to prove his claim over the road puramboke. The
petitioner did not produce any such document.
6. The 3rd respondent has not made any claim over
the scheduled property of the petitioner. The 3 rd respondent
only demarcated the road puramboke in Survey
No.611/1A/284/131 of Keerampara Village. This Court in
W.P.(C) No.3573/2022
Ext.P3 judgment has directed to fix the boundaries of the
road and to remove the encroachment within a period of
three months from the date of judgment. The 3 rd respondent
has taken all steps to demarcate the boundary with the help
of the Revenue Department before eviction proceedings
initiated.
7. Heard the learned counsel for the petitioner and
the learned Government Pleader representing the
respondents.
8. In Ext.P3 judgment in W.P.(C) No.1575/2020, this
Court found that there are serious issues relating to the
encroachment of the public road. Necessary action was
directed to be taken by the District Collector to constitute a
team to remove the encroachment. The District Collector,
Ernakulam was directed to oversee the entire process
related to removal of the encroachment with the assistance
of the Executive Engineer and other officials. The District
Collector was directed to fix boundaries of the road after
identifying the same, with the help of the Executive Engineer
W.P.(C) No.3573/2022
of the PWD. The entire process for identification of
encroachers and removal had to be completed within a
period of three months.
9. The action of the respondents was in pursuance of
Ext.P3 judgment of this Court. The specific case of the
petitioner is that neither the 2 nd respondent nor anyone under
him has surveyed the road in front of the petitioner's shop
room. However, the stand of the 3rd respondent is that
notices of survey were issued to all concerned including the
petitioner.
10. As directed by this Court, the learned Government
Pleader made available the files relating to the steps taken
by the respondents pursuant to Ext.P3 judgment. Though
the files contained notice and acknowledgment receipts in
respect of many landowners in the area, it does not contain
any acknowledgment of notice by the petitioner. Therefore,
the contention of the petitioner in this regard appears to be
correct.
W.P.(C) No.3573/2022
11. The petitioner and his predecessors were in
possession of the 1½ Cents of land for a considerably long
period. According to the petitioner, his shop is not at all
encroaches the PWD road. If there is an inch of
encroachment, the petitioner is ready to remove the same,
the petitioner being a law abiding citizen. But, the petitioner
cannot be directed to demolish the building without
conducting a Survey of the road or of his property with notice
to him.
12. The right to property is a valuable constitutional
right. It is true that this Court in Ext.P3 judgment has directed
the 2nd respondent to take steps to remove the
encroachments. The petitioner's contention is that no survey
was conducted in front of his shop room and no notice was
served on him in respect of any such survey. The files
produced before this Court would show that while notices
were issued to others in the nearby areas which were
acknowledged, no such notice was served on the petitioner.
In the circumstances, Ext.P4 cannot stand the scrutiny of
W.P.(C) No.3573/2022
law.
Ext.P4 is therefore set aside. The respondents are
directed to conduct survey and demarcate the boundaries of
the road in front of the petitioner's shop room with notice to
the petitioner. This shall be done within a period of two
months. The respondents will be at liberty to proceed
thereafter, on the basis of such demarcation and in
accordance with law.
Sd/-
N. NAGARESH, JUDGE
aks/17.03.2022
W.P.(C) No.3573/2022
APPENDIX OF WP(C) 3573/2022
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE WILL NO.84/2008 DATED
26.03.2008 REGISTERED AT KOTHAMANGALAM
SUB REGISTRAR'S OFFICE
P2 COPY OF PARTITION DEED DT 5.2.2010.
Exhibit P4 TRUE COPY OF THE NOTICE DATED
31.01.2022 OF THE 3RD RESPONDENT.
Exhibit P3 TRUE COPY OF THE JUDGMENT DATED
07.02.2020 IN W.P.(C) NO. 28748 OF
RESPONDENT'S EXTS
R3(a) COPY OF ENLARGED SKETCH PREPARED BY TALUK SURVEYOR.
R3(b) COPY OF PHOTOGRAPH OF THE PETITIONER'S PROPERTY.
