C.Remani vs State Of Kerala
2023 Latest Caselaw 11659 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
        THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
THURSDAY, THE 16TH DAY OF NOVEMBER 2023/25TH KARTHIKA, 1945
                      WP(C) NO.37766 OF 2023
PETITIONER:

            C.REMANI, AGED 62 YEARS
            D/O.LATE GABRIEL M, REMANI VILAS, KUNNATHUKKAL
            POST, THIRUVANANTHAPURAM DISTRICT, PIN - 695504
            BY ADVS.
            AJIT G ANJARLEKAR
            G.P.SHINOD
            GOVIND PADMANAABHAN
            ATUL MATHEWS
            GAYATHRI S.B.


RESPONDENTS:

    1       STATE OF KERALA
            REPRESENTED BY ITS SECRETARY,
            PUBLIC WORKS DEPARTMENT, SECRETARIAT,
            THIRUVANANTHAPURAM DISTRICT, PIN - 695001
    2       PROJECT DIRECTOR, KRFB - PMU, OFFICE OF THE
            PROJECT DIRECTOR,    KRFB -PMU, BSNL OFFICE
            BUILDING, DOORSANCHAR BHAVAN, PMG,
            THIRUVANANTHAPURAM DISTRICT, PIN - 695003
    3       EXECUTIVE ENGINEER
            KRFB-PMU DIVISION, THIRUVANANTHAPURAM,
            OFFICE OF THE EXECUTIVE ENGINEER,
            KRFB-PMU DIVISION, THIRUVANANTHAPURAM DISTRICT,
            PIN - 695003
            BY SRI.BIMAL K.NATH, SR.GOVERNMENT PLEADER
               SRI.MANOJ KUMAR, SC

     THIS     WRIT   PETITION    (CIVIL)     HAVING    COME    UP    FOR
ADMISSION     ON   16.11.2023,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) No.37766 of 2023                  2




                                  JUDGMENT

The petitioner is the owner of the property

referred to in Ext.P1 land tax receipt. The

petitioner has approached this Court aggrieved by

Ext.P9 notice issued by the 3rd respondent under

Section 15 of the Kerala Highway Protection Act,

1999 [for brevity, 'the Act'] whereby the

petitioner has been asked to demolish the building

constructed encroaching upon Amaravila-Karakonam

road. The petitioner submits that she has not

encroached upon any portion of the said road and

she has produced Ext.P8 survey sketch in support

of her contentions. The petitioner states that

Ext.P9 has been issued in total disregard to the

principles of natural justice. The petitioner has

also a contention that Amaravila-Karakonam road

has not been declared as Highway in terms of the

NH Act.

2. Heard the learned counsel for the

petitioner, the learned Senior Government Pleader

appearing for the 1st respondent and the learned

Standing Counsel appearing for respondents 2 & 3.

3. On going through Ext.P9, it is seen that

the same has been issued in a printed format,

which shows non-application of mind by the

authority who issued the same. This Court has

already deprecated the practice of issuing notice

under Section 15 of the Act in printed format and

taking steps thereunder without hearing the

parties. This Court, in A.M.Sainudheen v. District

Collector [2020 KHC 2534] has observed as follows:

"The Chief Secretary and the Principal Secretary of the Public Works Department will immediately ensure that necessary guidelines and norms are given to the Engineers of the PWD to strictly observe

the above said minimum modicum of procedural fairness, before they could finalize action in the matter of eviction for removal of the alleged encroachment. Such circular/guideline should be issued by the Government in the Public Works Department without any delay, and if necessary after getting advise with the learned Advocate General and the circular should be issued within 3 months from the date of production of a certified copy of this judgment. It may turn out that many a case, if the above said procedure is duly finalized will disclose that there are encroachments, and then the same could be removed without any legal obstacles and without wasting unnecessary time and resources for conducting repeated survey and measurements and also to avoid unnecessary litigations which are being mounted up before this Court. So also if it is found that the apprehension of the respondent Authority regarding the alleged encroachment is unfounded, in as much as such affected parties are only in

possession of lands which are in their lawful title and possession, then such citizens may not be compelled to undergo the trauma of these eviction proceedings repeatedly and constraining them to approach various legal forum. If citizens who have not encroached into the Government property are unnecessarily made to face the above said trauma and in flagrant violation of norms of fairness, then it would amount to a situation whereby such citizenry may loose faith in the very system of rule of law and such action of the respondent authorities would amount to undermining the foundation of rule of law and the Constitution based Governance mechanism. Accordingly it is ordered that the Chief Secretary or the Principal Secretary to Government of Kerala in the PWD shall personally file a report before this Court and produce a copy of the aforesaid circular immediately after the expiry of the said time limit. The said report shall be filed by the Governmental Authority concerned on or before 10/06/2019. Registry

will then list the said report for consideration of this Court on 11/06/2019. The Registry will forward certified copies of this judgment to the Chief Secretary to the Government of Kerala, as well as the Principal Secretary to the Government of Kerala, in the Public Works Department for necessary information and immediate compliance of the directions given herein above.

With these observations and directions, this writ petition shall stand disposed of."

4. Since Ext.P9 does not reflect satisfaction

of the authority who issued the impugned notice

under Section 15 of the Act and the same has been

issued in violation of the principles of natural

justice, there will be a direction to the parties

to treat Ext.P9 as a show-cause notice. The

petitioner shall submit a reply to Ext.P9 within a

period of one week from the date of receipt of a

certified copy of this judgment. On receiving the

reply, the 3rd respondent shall hear the petitioner

and pass appropriate orders in accordance with

law, as expeditiously as possible, at any rate,

within a period of two weeks thereafter. Till

orders are passed as above and communicated to the

petitioner, there shall not be any coercive steps

as against the petitioner.

The writ petition is disposed of.

Sd/-

MURALI PURUSHOTHAMAN

JUDGE

sp/16/11/2023

APPENDIX

PETITIONER'S EXHIBITS:-

EXHIBIT P1 COPY OF THE TAX RECEIPT NO.KL01041400174/ 2023 DATED 06/01/2023 ISSUED BY KUNNATHUKAL VILLAGE OFFICE TO THE PETITIONER EXHIBIT P2 COPY OF THE RECEIPT NO.57844 DATED 28/09/2015 ISSUED BY THE KUNNATHUKAL VILLAGE OFFICE TO THE PETITIONER EXHIBIT P3 COPY OF THE RECEIPT NO.1220103632/G010906 DATED 06/01/2023 ISSUED BY THE KUNNATHUKAL GRAMA PANCHAYAT EXHIBIT P4 COPY OF THE RECEIPT NO. 1220103633/ G010906 DATED 06/01/2023 ISSUED BY THE KUNNATHUKAL GRAMA PANCHAYAT EXHIBIT P5 COPY OF THE RECEIPT NO. 1220103634/ G010906 DATED 06/01/2023 ISSUED BY THE KUNNATHUKAL GRAMA PANCHAYAT EXHIBIT P6 COPY OF THE RECEIPT NO.1220103635/G010906 DATED 06/01/2023 ISSUED BY THE KUNNATHUKAL GRAMA PANCHAYAT EXHIBIT P7 COPY OF THE RECEIPT NO.1220103638/G010906 DATED 06/01/2023 ISSUED BY THE KUNNATHUKAL GRAMA PANCHAYAT EXHIBIT P8 COPY OF THE SURVEY SKETCH PERTAINING TO THE PROPERTY OF THE PETITIONER EXHIBIT P9 COPY OF THE NOTICE DATED 31/10/2023 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER EXHIBIT P10 COPY OF THE INTERIM ORDER DATED 16/10/2023 IN WPC NO:33974 OF 2023 ISSUED BY THIS HONOURABLE COURT