IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29866 of 2008(E)
1. C.I. MARTIN, S/O. ISSAC,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. DISTRICT COLLECTOR, KOLLAM.
3. TAHSILDAR, KOLLAM.
4. VILLAGE OFFICER, PERINADU, KOLLAM.
For Petitioner :SRI.T.KRISHNAN UNNI (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :08/02/2011
O R D E R
S. SIRI JAGAN, J.
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W.P.(C)No. 29866 of 2008
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Dated this the 8th day of February, 2011
J U D G M E N T
The petitioner in this writ petition is the owner of a
Tourist Resort and Cottage at Perinadu in Kollam District.
According to the petitioner, that Tourist Resort comprised
of properties belonging to him as well as some Government
land. He submitted application for assignment of the
Government land under the Land Assignment Act which was
dismissed by the Government which according to the
petitioner was without affording an opportunity of being
heard to the petitioner insofar as after adjourning the case
for hearing, fresh date of hearing was not notified to the
petitioner. Challenging that order, the petitioner filed W.P.
(C) No.5632/2008 which is pending before this court. In
that writ petition, originally there was an order of stay of
dispossession of the petitioner from the land. On
28.08.2008 this court vacated the interim order in view of
the averments in the counter affidavit filed by the Tahsildar,
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Kollam. According to the petitioner, on a wrong premise
that by vacating that interim order this court directed the
Government to take possession of the Government land, on
29.08.2008, the respondents took forcible possession of the
property. The petitioner is aggrieved by the same.
According to the petitioner, this is a highhanded action
insofar as this court had not directed to take possession of
the property and the petitioner was not given a reasonable
opportunity in the matter. The petitioner further contends
that as is evidenced by Ext.P10 notice issued to the
petitioner under the Kerala Land Conservancy Act, the
respondents had initiated proceedings under the Land
Conservancy Act only in respect of 28.58 ares and actually
by Ext.P14 mahazar prepared for taking possession of the
land, 45.68 ares of land has been taken possession of. It is
under the above circumstances the petitioner has filed this
writ petition seeking the following reliefs:
“a) issue a writ of mandamus or any other appropriate writ,
order or direction directing the respondents to restore
possession of the land taken from the petitioner as per
Ext.P14 Mahzar to the petitioner immediately.”
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2. A counter affidavit has been filed by the
3rd respondent wherein the contention taken is that the
entire 45.68 ares of land is Government land and the
petitioner had encroached into the same.
3. I have considered the rival contentions in detail.
4. This court passed the following interim order in
I.A. No.13895/2008 on 12.11.2008 which is self explanatory:
“I heard Sri. T. Krishnanunni, learned Senior Counsel for the
petitioner and the learned Government Pleader for the
respondents.
2. Learned counsel for the petitioner refers to
Ext.P14 mahazar which shows that an extent of 45.68 Ares of
land has been taken possession of from the petitioner. Mr.
Krishnanunni refers to Ext.P10 notice issued under the Land
Conservancy Act which schedules only an extent of 28.5 Ares of
land. Learned Government Pleader affirms that the entire
portion as mentioned under Ext.P14 has been taken possession
of by the Government from the petitioner. There are several
buildings/cottages in the property, it is submitted.
3. In the facts and circumstances of the case , I am of
the view that no further action should be taken against the
buildings situated in the property acquired by the respondents.
Status quo shall be maintained as regards the property taken
over by the Government as per Ext.P14, until further orders.
Additional counter affidavit within three weeks. Post for
hearing immediately thereafter.”
5. As is clear from Ext.P10 notice under the Kerala
Land Conservancy Act and Rules, the petitioner was put on
notice for resumption of only 28.58 ares of land. Even if the
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respondents has a case that the entire 45.68 ares of land is
Government land, the respondents could not have resumed
the entire land without putting the petitioner on notice in
respect of the balance land as well. Of course, I note the
contention of the petitioner that the allegation that the
petitioner has encroached into other Government land also
is incorrect. I am not expected to go into the correctness of
the rival contentions in that regard, since that is not a
subject matter of this writ petition for the present. When
proceedings have been initiated under the Land
Conservancy Act against the petitioner only in respect of
28.58 ares of land in possession of the petitioner, I do not
think that without first initiating proceedings in respect of
the balance properties also by putting the petitioner on
notice with opportunity to file objections and an opportunity
for a hearing the respondents could have proceeded against
the entire 45.68 ares of land and resumed the entire land.
Therefore the respondents are liable to be directed to
restore to the petitioner possession of the land not covered
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by Ext.P10 notice. Accordingly the respondents are
directed to restore possession of 17.10 ares of land not
covered by Ext.P10 to the petitioner within one month from
the date of receipt of a certified copy of this judgment. The
respondents shall cause measurement of the entire land
after giving prior notice to him regarding the date and time
of measurement and demarcate the 28.58 ares of land
covered by Ext.P10 and restore possession of the balance
17.10 ares out of 45.68 ares to the petitioner. However this
would be without prejudice to the right of the respondents
to take action against the balance 17.10 ares of land also if
they have a case that, that property is also Government land
but only after complying with the procedure prescribed
under the Kerala Land conservancy Act and Rules.
This writ petition is disposed of as above.
Sd/-
S. SIRI JAGAN
JUDGE
//True copy//
P.A. TO JUDGE
shg/