High Court Kerala High Court

Chithumma Kunjumuhammed vs The District Collector on 4 October, 2010

Kerala High Court
Chithumma Kunjumuhammed vs The District Collector on 4 October, 2010
       

  

  

 
 
  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.
                   ------------------------------------------
                       W.A. No. 1494 of 2010
                   ------------------------------------------
                 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