Kerala High Court
Mary Joseph vs District Collector on 5 July, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 5TH DAY OF JULY 2023 / 14TH ASHADHA, 1945
WP(C) NO. 32739 OF 2022
PETITIONER:
RASAK
AGED 57 YEARS, S/O MEERAN,
RESIDING AT CHEENIPARAYIL, ALAKODE RECEIVER KAVALA,
VELLIYAMATTOM- THODUPUZHA PWD ROAD, ALAKODE P. O.,
ALAKODE VILLAGE, THODUPUZHA TALUK, IDUKKI - 685 588.
BY ADV P.J.JOE PAUL
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY, PUBLIC WORKS DEPARTMENT,
PUBLIC OFFICE COMPLEX, MUSEUM P. O.,
THIRUVANANTHAPURAM - 695 033.
2 TAHSILDAR,
TALUK OFFICE, THODUPUZHA, IDUKKI - 685 584.
3 ASSISTANT ENGINEER,
OFFICE OF THE ASSISTANT ENGINEER,
PUBLIC WORKS DEPARTMENT, THODUPUZHA, IDUKKI - 685 584.
4 THE EXECUTIVE ENGINEER,
PUBLIC WORKS DEPARTMENT (ROADS), IDUKKI.
(R4 IS SUO MOTU IMPLEADED AS ADDITIONAL 4 TH RESPONDENT
BY JUDGMENT DATED 05.07.2023)
BY ADVS.
K.V. MANOJ KUMAR (SC)
PREETHA K.K (SR.GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.07.2023, ALONG WITH W.P(C)NO.6130 OF 2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P(C) NOS. 32739/2022 and 6130/2021
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 5TH DAY OF JULY 2023 / 14TH ASHADHA, 1945
WP(C) NO. 6130 OF 2021
PETITIONER:
MARY JOSEPH
AGED 80 YEARS, W/O.JOSEPH,
THARAYAKALATHIL KIZHAKKEKUTTU HOUSE,
ALAKKOD VILLAGE, KALAYANTHANY P.O.,
THODUPUZHA TALUK, IDUKKI DISTRICT, PIN-682 006.
BY ADVS.
C.P.SAJI
P.DEEPA MOHAN
RESPONDENTS:
1 DISTRICT COLLECTOR
CIVIL STATION, KUYILUMALA,
PAINAVU P.O., IDUKKI-685 588.
2 TAHSILDAR, THODUPUZHA TALUK OFFICE,
MINI CIVIL STATION COMPLEX,
THODUPUZHA P.O., IDUKKI-685 584.
3 VILLAGE OFFICER, ALAKKODE VILLAGE,
KALAYANTHANY P.O., THODUPUZHA TALUK,
IDUKKI DISTRICT, PIN-682 006.
4 EXECUTIVE ENGINEER,
OFFICE OF THE EXECUTIVE ENGINEER, PUBLIC WORKS
DEPARTMENT (ROADS), PAINAVU P.O., IDUKKI-685 588.
5 THE SECRETARY, ALAKKODE GRAMA PANCHAYATH,
KALAYANTHANY P.O., THODUPUZHA TALUK, IDUKKI
DISTRICT, PIN-682 006.
W.P(C) NOS. 32739/2022 and 6130/2021
3
6 RAZAQ CHEENIPARAYIL,
RAZAK'S FURNITURE WORK SHOP, ALAKKODE,
KALAYANTHANY P.O., IDUKKI DISTRICT, PIN-682 006.
BY ADVS.
SRI.GEORGEKUTTY MATHEW
SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.P.J.JOE PAUL
SRI.MANU SRINATH
SRI.RAJAN G. GEORGE
SRI. K.V.MANOJ KUMAR (SC)
SMT. PREETHA K.K (SR.GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.07.2023, ALONG WITH W.P(C)NO.32739 OF 2022, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P(C) NOS. 32739/2022 and 6130/2021
4
JUDGMENT
[W.P(C) NOS. 32739/2022 and 6130/2021]
The petitioner in W.P.(C)No.32739/2022 has approached this
Court being aggrieved by Ext.P7 notice issued under the Kerala
Highway Protection Act, 1999 (hereinafter referred to as the Act),
alleging that the petitioner has encroached into the Karrekode -
Velliyamattam Road. The petitioner in W.P.(C)No.6130/2021 has
approached this Court seeking a direction to the official
respondents to take action to evict the encroachment by the
petitioner in W.P.(C)No.32739/2022. The petitioner in
W.P(C)No.32739/2022 is the 6th respondent in
W.P.(C)No.6130 /2021.
2. The learned counsel appearing for the petitioner in
W.P.(C)No.32739/2022 would submit that Ext.P7 notice is not
sustainable in law. It is submitted that there has been no
adjudication of the question as to whether there is any
encroachment by the petitioner with reference to the title
documents of the petitioner and no proceedings have been taken to
identify whether there is any encroachment by the petitioner. He
also submits that the officer, who is issued Ext.P7 notice has no
authority to do so and also that even if there is any encroachment,
W.P(C) NOS. 32739/2022 and 6130/2021
the petitioner is entitled to continue in occupation in terms of
Ext.P2 Government Order.
3. The learned Government Pleader, on instructions, would
submit that Ext.P7 in W.P.(C)No.32739/2022 is only a notice and
any proceedings will be finalized by the competent authority under
the Act. It is submitted that the competent authority under the Act
is the Executive Engineer, Public Works Department (Roads),
Idukki, who is not a party in W.P(C)No.32739/2022. It is submitted
that Ext.P7 can be treated as a show cause notice and on the
petitioner filing objections to Ext.P7, the matter can be adjudicated
by the Executive Engineer, in accordance with the law after
affording an opportunity of hearing to the petitioner in
W.P(C)No.32739/2022.
4. Having heard the learned counsel appearing for the
petitioners in these cases and the learned Government Pleader
appearing for the official respondents, W.P(C)No.32739/2022 will
stand disposed of directing that Ext.P7 shall be treated as a show
cause notice under the provisions of the Act. The petitioner will be
entitled to file objections to Ext.P7 and thereafter the matter shall
be adjudicated by the Executive Engineer, Public Works
Department (Roads), Idukki. Since the Executive Engineer, Public
W.P(C) NOS. 32739/2022 and 6130/2021
Works Department (Roads), Idukki, is not a party in
W.P.(C)No.32739/2022, the said officer is suo motu impleaded as
additional 4th respondent to the writ petition.
(ii) The Executive Engineer, Public Works Department
(Roads), Idukki shall afford an opportunity of hearing to the
petitioner in W.P.(C)No.32739/2022 as also to the petitioner in
W.P.(C)No.6130/2021 before passing final orders in the matter.
(iii) The petitioners in these cases shall mark appearance
before the Executive Engineer, Public Works Department (Roads),
Idukki, at 11.00 A.M. on 21-07-2023.
(iv) The proceedings shall be completed by the Executive
Engineer, Public Works Department (Roads), Idukki, as directed
above within a period of two months from the date of receipt of a
certified copy of this judgment.
(v) If any encroachment is identified, steps shall be taken to
evict such encroachments without further delay.
Writ petitions are disposed of as above.
Sd/-
GOPINATH P.
JUDGE
ats
W.P(C) NOS. 32739/2022 and 6130/2021
APPENDIX OF WP(C) 32739/2022
PETITIONER'S EXHIBITS
Exhibit P1 THE TRUE COPY OF THE RELEVANT PAGES OF THE
RATION CARD OF THE PETITIONER
Exhibit P2 THE TRUE COPY OF G. O. (MS) NO. 511/97/R.D.
THIRUVANANTHAPURAM DATED 07.07.1997
Exhibit P3 THE TRUE COPY OF RECEIPT NO. 25427/10/C3 DATED
02.12.2010 ISSUED BY THE 2ND RESPONDENT
Exhibit P4 THE TRUE COPY OF RECEIPT NO. F2 - 22120/12
DATED 01.08.2012 ISSUED BY THE 2ND RESPONDENT
Exhibit P5 THE TRUE COPY OF COMMUNICATION NO. T1/2022 -
23 DATED 03.06.2022 ISSUED BY THE 3RD
RESPONDENT
Exhibit P6 THE TRUE COPY OF REPRESENTATION DATED
16.06.2022 SUBMITTED BY THE PETITIONER BEFORE
THE 3RD RESPONDENT
Exhibit P7 THE TRUE COPY OF COMMUNICATION NO. T1/2022- 23
DATE29.09.2022 OF THE 3RD RESPONDENT
RESPONDENT EXHIBITS
Exhibit R2(a) A true copy of the report No.G4-7240/20 dated
21.06.2021 submitted by the Taluk Surveyor,
Thodupuzha to the Tahsildar (LR), Thodupuzha.
Exhibit R2(b) A true copy of the sketch prepared by the
dated 21.06.2021.
W.P(C) NOS. 32739/2022 and 6130/2021
APPENDIX OF WP(C) 6130/2021
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.1381/1979
DATED 27.03.1979 OF SRO, KARIKKODE.
EXHIBIT P2 TRUE COPY OF THE PETITION DATED
03.06.2019 OF THE PETITIONER SENT TO THE
1ST RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE POSTAL ACKNOWLEDGMENT
CARD SIGNED FROM THE OFFICE OF THE 1ST
RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE PETITION DATED
03.06.2019 SENT TO THE 2ND RESPONDENT BY
THE PETITIONER.
EXHIBIT P5 TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT
CARD SIGNED BY THE SECOND RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE POSTAL ACKNOWLEDGMENT
CARD SIGNED BY THE 4TH RESPONDENT
ASSISTANT EXECUTIVE ENGINEER,
THODUPUZHA.
EXHIBIT P7 TRUE COPY OF THE POSTAL ACKNOWLEDGMENT
CARD SIGNED BY THE 5TH RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE LETTER DATED 16.08.2019
OF THE 4TH RESPONDENT ADDRESSING THE
PRIVATE SECRETARY TO THE PWD MINISTER.
EXHIBIT P9 TRUE COPY OF THE FILED MAP OF THE FIELD
NO.154 OF ALAKKODE VILLAGE.
EXHIBIT P10 TRUE COPY OF THE SURVEY SKETCH OF THE
PETITIONER'S PROPERTY.
EXHIBIT P11 TRUE COPY OF THE BASIC TAX REGISTER OF
THE PETITIONER'S PROPERTY AND THE PWD
ROAD.
W.P(C) NOS. 32739/2022 and 6130/2021
RESPONDENTS' EXHIBITS
Exhibit R2(a) True copy of the survey report and
sketch
