IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1494 of 2010()
1. CHITHUMMA KUNJUMUHAMMED, AGED 55,
... Petitioner
Vs
1. THE DISTRICT COLLECTOR,
... Respondent
2. THE ASSISTANT EXECUTIVE ENGINEER,
3. THE VILLAGE OFFICER,
4. THE TAHSILDAR,
5. STATE OF KERALA, REP. BY
6. KODUMKALLI, AGED 50,
For Petitioner :SRI.K.R.VINOD
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :04/10/2010
O R D E R
J.Chelameswar, C.J. & P.R.Ramachandra Menon, J.
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W.A. No. 1494 of 2010
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Dated this the 4th day of October, 2010
JUDGMENT
J.Chelameswar, C.J.
Aggrieved by judgment dated 10th August, 2010 in W.P.
(C) No.24844 of 2010, the unsuccessful petitioner therein preferred
the instant writ appeal.
2. The appellant herein filed the abovementioned writ
petition praying in substance that the 6th respondent in the writ
petition be evicted from a particular piece of land which according
to the appellant is a government puramboke land.
3. The case of the appellant is that the property in dispute
came to be occupied by the 6th respondent and the 6th respondent is
making some construction in the said property which if
accomplished would adversely affect the appearance of the
appellant’s property.
4. By the judgment under appeal, a learned Judge of this
W.A.No.1494 of 2010
– 2 –
Court held that the grievance such as the one made by the appellant
is a grievance in the nature of espousing public interest and
therefore dismissed the writ petition without prejudice to the right of
the appellant to file a public interest litigation. Hence the present
appeal.
5. We, while agreeing with the conclusion reached by
the learned Judge that the writ petition is liable to be dismissed, do
not agree with the reason given by the learned Judge that the
grievance is in the nature of a public interest. The grievance of the
writ petitioner is purely private without any enforceable legal right.
The fact that the construction of the 6th respondent is likely to affect
the building of the appellant in our opinion does not entitle the
appellant for any remedy known to private law, at any rate nothing
is brought to our notice. That being the state of affairs, the appellant
seeks to project her private grievance by purporting to espouse a
public interest on the ground that under Section 5 of the Kerala
Land Conservancy Act, 1957 encroachment of government property
is not permissible and therefore the official respondents are under an
obligation to evict the 6th respondent.
W.A.No.1494 of 2010
– 3 –
6. Section 5of the Kerala Land Conservancy Act does
not create an absolute embargo on the occupation of government
land. It only declares that occupation without prior approval of the
Government is not permissible. In other words, the occupation per
se is not prohibited. In the circumstances, whether to evict an
encroacher from a government land or not is a matter to be decided
by the Government depending upon the nature of the circumstances.
7. This Court in exercise of the jurisdiction under Article
226 of the Constitution of India cannot compel the State to evict an
encroacher at the instance of a person whose fancied private rights
are affected.
We see no merit in the appeal. The writ appeal is
dismissed at the admission stage.
J.Chelameswar,
Chief Justice
P.R.Ramachandra Menon,
Judge
vns