Kerala High Court
Mohanan R vs Tahsildar on 20 June, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
WP(C) NO. 31376 OF 2018
PETITIONER:
MOHANAN R
AGED 51 YEARS
ARYA MANDIR ARYANKAVU KOLLAM-691304
BY ADV P.RAHUL
RESPONDENTS:
1 TAHSILDAR
OFFICE OF THE TAHSILDAR, PUNALUR KOLLAM-691305
2 ASSISTANT EXECUTIVE ENGINEER
NH SUB DIVISION, PUBLIC WORKS DEPARTMENT, PUNALUR,
KOLLAM 691 305.
3 EXECUTIVE ENGINEER
NH DIVISION, PUBLIC WORKS DEPARTMENT, KOLLAM 691 001.
4 VILLAGE OFFICER
ARYANKAVU VILLAGE, KOLLAM 691 309.
5 ARYANKAVU GRAMA PANCHAYATH,
ARYANKAVU, KOLLAM 691 309. REPRESENTED BY ITS
SECRETARY.
BY ADV GOVERNMENT PLEADER
OTHER PRESENT:
SRI.B.S.SYAMANTAK, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) 31376/2018
2
P.V.KUNHIKRISHNAN,J.
---------------------
W.P (C) No.31376 of 2018
---------------------------
Dated this the 20th day of June, 2024
JUDGMENT
This writ petition is filed with the following prayers:-
"i) Call for the records of the case leading to
Ext.P7 notice and quash the same by the
issuance of writ of certiorari or any other
appropriate writ or order.
ii) Issue a writ of mandamus or other
appropriate writ or order directing the 2nd
respondent to forbear from pursuing any
coercive steps to evict the petitioner or to
remove the improvements from his property
having an extent of 1.05 Ares comprised in Sy.
No.323/3 of Aryankavu Village, Kollam until
the directions of this Hon'ble Court in Ext P5
judgment is complied with.
iii) Issue a writ of mandamus or other
appropriate writ or order directing the 1 st
respondent to grant cost of improvements
effected by the petitioner in his property
comprised in Sy.No.323/3 of Aryankavu
Village, Kollam.
iv) Grant such other reliefs that this Hon'ble
Court deem fit to grant under the facts and
circumstances of the case." (SIC)
2. The petitioner is challenging the cancellation of
the Kuthakapattom granted to him for the property
comprised in Survey No.323/3 of Aryankavu Village by the
WP(C) 31376/2018
1st respondent. It is submitted that the petitioner
is in possession and enjoyment of a property having an
extent of 1.05 Ares comprised in Survey No.323/3 of
Aryankavu Village, Kollam. The petitioner is in enjoyment of
the said property on the strength of the Kuthakapattom
granted to him by the Government is the submission. The
petitioner in the said property has constructed a building
and the rooms were numbered by the 4th respondent and it
is abutting the National Highway is the further submission.
The 1st respondent issued an order stating that the
Kuthakapattom in favour of the petitioner has been
cancelled by an order dated 14.08.2014 is the submission.
The 2nd respondent issued a notice under Section 15(2) of
the Kerala Highway Protection Act treating the occupancy of
the petitioner in the subject property as encroachment and
directing the petitioner to remove the structures/
improvements within 7 days from the date of receipt of the
notice issued to him. The petitioner received that notice on
04.04.2018. In the above circumstances, the petitioner
approached this Court by filing W.P.(C) No.12683/2018. This
Court by its judgment dated 10.04.2018 disposed the said
WP(C) 31376/2018
writ petition with certain directions. Based on the directions,
petitioner filed his objection. Thereafter, a hearing was
conducted by the 2nd respondent. Meanwhile, the time limit
fixed by this Court was expired and no final orders are
communicated to the petitioner in the objection filed by the
petitioner is the submission. Thereafter, on 01.09.2018, the
2nd respondent issue a letter directing the petitioner to
handover vacant possession of the subject property to the
National Highway Division of Public Works Department. The
petitioner by a letter dated 17.09.2018 requested the 2 nd
respondent to pass final orders in the objection filed by him.
It is submitted that without considering the same and
without considering the directions issued by this Court on
22.09.2018, there was an attempt to demolish the
residence and shop rooms without any notice. It is also
submitted that the 2nd respondent temporarily backed out
from the demolition activities after forcefully obtaining a
consent letter from the petitioner on 22.09.2018 is the
further submission. The grievance of the petitioner is that
the respondent ought to have passed final order based on
the objections raised by the petitioner and inaction on the
WP(C) 31376/2018
part of the 2nd respondent to pass final orders and proceed
with the coercive recovery steps during the subsistence of
valid order of stay passed by this Court is illegal. Hence,
this writ petition.
3. Heard the learned counsel for the petitioner and
the learned Government Pleader.
4. When this writ petition came up for consideration,
the learned Government Pleader takes me through
Ext.R2(c) which is an order passed by the authority
concerned. Exts.P7 and R2(c) are the impugned orders in
this writ petition. A perusal of these orders would not show
that these orders are passed after giving an opportunity of
hearing to the petitioner. It is submitted that an opportunity
of hearing is given to the petitioner. But, this writ petition is
pending before this Court from 2018 onwards. The main
grievance raised by the petitioner is that sufficient
opportunity is not given. I think, in the facts and
circumstances of the case, without going to the merit of the
case, these orders can be set aside directing the authority
concerned to reconsider the matter, after giving an
opportunity of hearing to the petitioner. I make it clear that
WP(C) 31376/2018
I have not considered the matter on merit and the authority
concerned is free to pass appropriate orders, in accordance
with law, after giving an opportunity of hearing to the
petitioner.
5. Considering the facts and circumstances of the
case, I think Exts.P7 and R2(c) can be set aside. Once
again, I make it clear that I am setting aside Exts.P7 and
R2(c) only to facilitate the 2 nd respondent to pass fresh
orders.
Therefore, this writ petition is disposed of with the
following directions:-
1) Exts.P7 and R2(c) are set aside.
2) The 2nd respondent is directed to
reconsider the matter, after giving an
opportunity of hearing to the the petitioner, as
expeditiously as possible, at any rate, within
three months from the date of receipt of a
certified copy of this judgment.
3) The petitioner will produce a certified copy
of this judgment along with a copy of the writ
petition with exhibits before the 2nd respondent
for compliance.
WP(C) 31376/2018
4) I make it clear that I have not considered
the matter on merit and the 2nd respondent is
free to pass appropriate orders in accordance
with law.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
bng
WP(C) 31376/2018
APPENDIX OF WP(C) 31376/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PROPERTY TAX RECIEPT
WITH REGARD TO THE PETITIONER'S
PROPERTY.
EXHIBIT P1 TRUE COPY OF THE PROPERTY TAX RECEIPT
WITH REGARD TO THE PETITIONERS'S
PROPERTY.
EXHIBIT P1 TRUE COPY OF THE PROPERTY TAX RECEIPT
WITH REGARD TO THE PETITIONER'S
PROPERTY.
EXHIBIT P2 TRUE COPY OF THE RECEIPT EVIDENCING THE
PAYMENT OF LEASE.
EXHIBIT P2 TRUE COPY OF THE RECEIPT EVIDENCING THE
PAYMENT OF LEASE.
EXHIBIT P3 TRUE COPY OF THE ORDER OF THE IST
RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE NOTICE ISSUED BY THE
2ND RESPONDENT TO THE PETITIONER
EXHIBIT P5 TRUE COPY OF THE JUDGMENT OF THIS
HON'BLE COURT IN WP(C) 12683/2018.
EXHIBIT P6 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE LETTER ISSUED BY THE
SECOND RESPONDENT TO THE PETITIONER.
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION GIVEN
BY THE PETITIONER TO THE 2ND
RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE CONSENT LETTER ISSUED
BY THE PETITIONER TO EXECUTIVE
ENGINEER, NH DIVISION, KOLLAM.
WP(C) 31376/2018
EXHIBIT P10 TRUE COPY OF THE CERTIFICATE ISSUED BY
THE GENERAL HOSPITAL,
THIRUVANANTHAPURAM.
RESPONDENTS EXHIBITS
EXHIBIT R2(A) TRUE COPY OF THE G.O.NO. 174/2011 DATED
2.5.2011
EXHIBIT R2(B) RUE COPY OF THE LETTER NO. AB2-31/2018,
DATED 20.06.2018
EXHIBIT R2(C) TRUE COPY OF THE ORDER DATED 24.09.2018
EXHIBIT R2(D) TRUE COPY OF THE SURVEY REPORT
EXHIBIT R2(E) TRUE COPY OF THE ORDER OF THE DISTRICT
COLLECTOR NO. L6.36209/17
EXHIBIT R1(A) TRUE COPY OF THE LETTER NO.A5-4465/93
DATED 25.06.2014
EXHIBIT R1(B) TRUE COPY OF COMMUNICATION NO.A5-
4465/93 DATED 15.07.14
EXHIBIT R1(C) TRUE COPY OF PROCEEDINGS NO.A4-4465/95
DATED 31.03.2017.
EXHIBIT R1(D) TRUE COPY OF LETTER NO.A5-4465/95 DATED
28.05.2018
