IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16692 of 2010(J)
1. CHANDRAN, PUNTHALAKIZHAKKATHIL,
... Petitioner
Vs
1. THE TAHSILDAR, KARUNAGAPPALLY,
... Respondent
2. THE CIRCLE INSPECTOR OF POLICE,
3. INDIRAMMA, PRANAVAM, ELASSERIL,
For Petitioner :SRI.B.S.SWATHY KUMAR
For Respondent :SRI.P.B.SURESH KUMAR
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :14/12/2010
O R D E R
ANTONY DOMINIC, J.
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W.P.(C).Nos.32119/09 & 16692/10
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Dated this the 14thday of December, 2010.
C O M M O N J U D G M E N T
W.P.(C).No.32119/09
Issues raised in these writ petitions are connected and
therefore, these cases were heard together and are disposed of
by this common judgment.
2. I shall first deal with W.P.(C)No.32119/09. Prayer sought
in this writ petition is to quash Exts.P4, P5 and P7 orders, passed
by the respondents 5, 4 and 3 respectively. The petitioner claims
that she and her ancestors were in possession of 45 cents of land
in old Survey Nos.13709/A/1-3 and 13709/A/1-1 of
Karunagappally Village. In 1994, Ext.P1 order was passed by the
5th respondent, exercising his powers under the Kerala Land
Conservancy Act, 1957, finding that the petitioner’s husband had
unauthorisedly encroached into 3.08 cents of land. On that basis,
prohibitory assessment was ordered and a fine of ` 250/- was
imposed. Based on Ext.P1, Ext.P2 ‘form C notice’ was issued
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W.P.(C).Nos.32119/09 & 16692/10
and the petitioner’s husband was called upon to remit arrears of
tax for 40 years. He was also ordered to vacate from the land.
3. Against these proceedings, the petitioner’s husband
filed an appeal before the Revenue Divisional Authority. In the
meantime, the petitioner’s husband was expired and the
petitioner joined as a party to the appeal and prosecuted the
appeal, which was finally disposed of by Ext.P3 order. A reading
of this order would show that, it was the contention of the
petitioner that, she and her ancestors were in possession of the
property since 110 years and that property was not a path way,
as claimed by the rival claimants. Taking note of these
contentions, RDO found that the notice issued by the Tahsildar
shows the time of encroachment and that, S.5 of the KLC Act
could not be evoked in the case. Proceeding further, on the
ground that, the Lower Authority had not verified the points that
the petitioner raised before the R.D.O., the order passed by the
Tahsildar was set aside and a fresh disposal was ordered.
4. On remand, the Tahsildar reconsidered the matter and
passed Ext.P4 order. This order shows that, during the course of
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W.P.(C).Nos.32119/09 & 16692/10
the hearing, the 12th respondent was also heard and that he
claimed that, the land in question is a path way. The Tahsildar
inspected the land and found that the land is recorded in the
revenue records as ‘zirkar vazhi’ and that the petitioner’s
husband had encroached upon the poramboke land about 60
years back. Thereafter, the Tahsildar passed the following
orders:-
” The above poramboke land comprised in Block No.10,
R.S.No.330/5 of Karunagappally Village having an extent
of 2.30 Ares is a zirkar “vazhi poramboke”. As per the
existing orders “vazhi-poramboke” is not assignable.
Hence the encroachment is objectionable. In the
circumstances the defendant is fined Rs.200/- (Rs.two
hundred only). She is also levied prohibitory
assessment at the rate of basic tax w.e.f. the year of
K.L.C.Act 1957 come into force. The defendant will
vacate the encroachment within 7 days on the receipt
of this order. The defendant has liberty to submit
application for lease on he yielding trees standing in the
land.”
5. Against this order, the petitioner filed appeal before the
R.D.O., which was dismissed by Ext.P5 order. Revision filed
before the Collector was also dismissed by Ext.P7 order. A
further revision was also filed before the Land Revenue
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W.P.(C).Nos.32119/09 & 16692/10
Commissioner, which was also rejected by Ext.P9 order, on the
ground that, ‘the Commissioner of Land Revenue has no
powers for second revision as per the KLC Act, 1957, where the
District Collector is the revisional authority”. It is in these
circumstances this writ petition is filed.
6. Contention raised on behalf of the petitioner is that,
R.D.O. himself has found that the encroachment is 60 years
prior to Ext.P4 order and hence S.5 of the Act could not be
invoked and that, if that be so, proceedings under the KLC Act
could not have been initiated against the petitioner or her
husband. Learned counsel further contented that, though this
issue was specifically ordered to be considered by the Tahsildar,
while considering the matter afresh, the Tahsildar did not advert
to this contention.
7. On behalf of the party respondents, the contention
raised is that the land in question is the only path way they have.
It is stated that the petitioner had already approached the Civil
Court and the Civil Court has dismissed the suit by R7 judgment.
It is argued that, it was taking note of the public interest involved
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W.P.(C).Nos.32119/09 & 16692/10
in the matter, that the Tahsildar, R.D.O. and the District Collector
have ordered the eviction of the petitioner from the poramboke,
which is a ‘zirkaar vazhi’ as per the revenue records. Raising
these contentions, the counsel for the party respondents wanted
this court to sustain the impugned order.
8. I have considered the submissions made.
9. As already seen, it was the specific case of the
petitioner that, she and her ancestors were in possession of the
property for more than 100 years. On this basis, the argument
set up was that the proceedings under the KLC Act, which came
into force only in 1958, could not be initiated in respect of
encroachments prior to the Act. It is taking note of this
contention that in Ext.P3 order, the R.D.O. passed the following
orders :-
” On perusal of the file submitted by the Lower
Authority and through the arguments made by the counsel
for the appellant on personal hearing, I come to the
conclusion that the pleas of the appellant deserve
consideration. The Notice issued by the Tahsildar shows
the time of encroachment and hence the Section 5 of
K.L.C. Act could not be evoked in this case. The Lower
Authority has not verified the points that the appellant
raised before this court. In the circumstances, the6
W.P.(C).Nos.32119/09 & 16692/10following order is passed.
O R D E R
The order passed by the Tahsildar read as
2nd above is set aside and remanded for fresh disposal
after hearing the appellant as per the provision of KLC
Act.”
10. Therefore, on remand, when the matter was
reconsidered, the Tahsildar ought to have borne in mind the
finding of the appellate authority, as contained in Ext.P3 order
and examined the issue in the light of such finding. A reading of
Ext.P4 order, passed by the Tahsildar, shows that this issue was
not even adverted to, despite the finding that, the petitioner’s
husband had encroached into the property about 60 years back.
This contention of the petitioner was again reiterated in her
pleadings in the appeal filed before the R.D.O. and in the
revision filed before the District Collector. However, either of
these authorities also, have not considered the aforesaid
findings of the R.D.O., which has become final. Therefore, I am
inclined to think that the impugned orders are liable to be
interfered and the matter requires a fresh consideration. In that
view of the matter, I am inclined to set aside Exts.P5 and P7
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W.P.(C).Nos.32119/09 & 16692/10
orders passed by the Tahsildar, R.D.O. and the District Collector
and direct that the 5th respondent will reconsider the matter duly
taking only into account the findings in Ext.P3 order passed by
the R.D.O.
11. As far as the suits filed by the petitioner resulting in
Ext.P7 judgment is concerned, first of all, Government or its
officials were not parties and accordingly, that was only an
injunction suit. Therefore, that judgment cannot operate against
the petitioner and this case cannot be rejected for that reason.
12. It is directed that, while the matter is reconsidered, the
petitioner and the party respondents will also be issued notice
and they will also be heard.
Orders shall be passed, as expeditiously as possible at any
rate within 8 weeks from the date of production of a copy of this
judgment along with copy of writ petition.
W.P.(C)No.32119/09 will stand disposed of as above.
W.P.(C).No.16692/10
In W.P.(C)No.16692/10, the prayer sought is
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W.P.(C).Nos.32119/09 & 16692/10
essentially for the implementation of the orders passed by the
Tahsildar, which was confirmed by the R.D.O. and the District
Collector. In the light of my conclusions in W.P.(C)No.32119/09,
setting aside the aforesaid orders, the prayer sought in the writ
petition cannot be allowed.
Therefore, this writ petition fails and is dismissed.
ANTONY DOMINIC,
Judge.
ami/