IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20618 of 2007(S)
1. MANKUZHY NAGAR RESIDENT'S ASSOCIATION
... Petitioner
Vs
1. DISTRICT COLLECTOR,
... Respondent
2. TAHSILDAR,
3. SECRETARY,
For Petitioner :SRI.ANTONY M. AMBAT
For Respondent :SRI.M.K.ABOOBACKER
The Hon'ble the Acting Chief Justice MR.P.R.RAMAN
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :11/02/2010
O R D E R
P.R.Raman, Ag. C.J. &
Thottathil B.Radhakrishnan, J.
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W.P.(C) No.20618 of 2007 &
I.A.No.13930 of 2007
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Dated this the 11th day of February, 2010
JUDGMENT
Thottathil B.Radhakrishnan, J.
This writ petition is filed by Mankuzhy Nagar
Residents’ Association essentially complaining that there is large
scale encroachment of revenue land by different occupants of patta
lands or even without any occupation of patta lands. The survey
documents issued in relation to the area is sought to be redone.
2. With this public interest litigation in hand, this Court
issued an order requiring publication of notice of this writ petition
in a newspaper. That was promptly done. Thereafter, following
different directions, the Tahsildar, Kanayannur had placed a report
and certain exhibits. Thereafter an application for enlargement of
W.P.(C) No.20618 of 2007 2
time was also filed to carry out the directions issued by this Court.
Ultimately, the first respondent District Collector has filed an
affidavit dated 3.11.2009 stating that the District Collector had
appointed a special team with two surveyors, in 2004, for
measuring the thodu puramboke and it took three months to
complete the work. The District Collector stated that, however, the
Municipal authorities neither maintained the boundary stones and
the survey markings nor acted upon the process of eviction on the
basis of the survey report. It was, therefore, asserted by the
District Collector that, as such, the entire area having a length of
more than 2.5 kilometres resulted to be surveyed again for fixing
the thodu puramboke. She further proceeds to say that there
occurred some delay in completing the further survey owing to
deficiency of revenue staff and the intervening Legislative
Assembly elections. Thereafter it is stated that the Tahsildar,
Kanayannur was directed to start the survey afresh and make
W.P.(C) No.20618 of 2007 3
reports.
3. Pursuant to the aforesaid, the learned Senior
Government Pleader appearing in this case submits today that the
District Collector has reported that the survey activities in terms of
the direction have been completed on 10.12.2009.
4. The thodu puramboke which are nothing but land
adjoining water-ways are vested in the local authorities in terms of
the provisions contained in the Municipality Act. Obviously,
therefore, the Municipality cannot shirk its responsibility to plant
and maintain boundary stones and ensure that there is no
encroachment over the thodu puramboke. If any encroachment has
been found, it is the bounden duty of the Municipality to remove
such encroachment in accordance with law after following the due
procedure.
5. Learned counsel appearing for the Municipality
states that following the survey, the Municipality has fixed
W.P.(C) No.20618 of 2007 4
boundary stones and is taking due care and caution to ensure that
there is no tampering of the boundaries. It is the personal
responsibility of the officers of the Municipality to make strict
vigil and supervision to ensure that the land vested in the
Municipality is promptly protected. This is part of the public
interest and public duty that the Municipal officers have to ensure.
6. In terms of the aforesaid, this writ petition is ordered
directing as follows:
i) The survey having been conducted, the said survey
records will be made available in the office of the Municipal
Secretary and the revenue authority for perusal and if necessary for
obtaining copy as may be applied for by any citizen.
ii) The competent authority in the Municipality or in the
Revenue Department will ensure appropriate action in accordance
with law against any encroachment that has been found and the
encroachment shall be dealt with in accordance with law, without
W.P.(C) No.20618 of 2007 5
in any manner impairing the right of an occupier to relief in terms
of law.
iii) At any rate, both the authorities, as stated above,
shall initiate such action within an outer limit of three months from
today and the authorities, at the first instance, shall complete such
proceedings after hearing the necessary parties within an outer
limit of four months therefrom.
iv) It is further clarified that any land holder aggrieved
by any action taken by the Municipal authorities or the Revenue
authorities will be entitled to seek remedies before the competent
statutory appellate authorities as against such decisions and all
such rights and remedies are left open.
In so far as I.A.No.13930 of 2007 is concerned, the
petitioner in this public interest litigation states that the
Municipality is proceeding to sell off two roads which are vested
in the Municipality. The plea is that if those roads are sold off, that
W.P.(C) No.20618 of 2007 6
will affect the right of the public for free movement through those
roads and that the Municipality is acting in excess of their powers
under the Municipality Act. We are clear in our mind that the
State legislation provides certain prescriptions on transfer of
properties which are vested in the Municipality and in so far as
such properties are concerned, there is a procedure prescribed
under the Municipality Act and Rules for transfer. Learned
counsel for the Municipality states that due procedure has been
followed in terms of the Act and Rules for dealing with those
properties. This is countered by the learned counsel appearing for
the petitioner by stating that if those roads are sold out, that will
affect the right of the citizens for free movement and that there will
not be any road access for the public. Learned counsel for the
petitioner further states that the Municipality may give effect to its
decision as stated in the counter affidavit to the said interlocutory
application, regarding the provision for alternate way. If the
W.P.(C) No.20618 of 2007 7
petitioner is further aggrieved on that count or if they are aggrieved
by any decision of the Municipality, they may move either the
Government or the learned Ombudsman for Local Self
Government Institutions, as the case may be, since Government is
the appropriate authority to grant sanction to the Municipality to
deal with properties which are vested in the Municipality. That
issue is accordingly left open.
Writ petition is ordered accordingly.
P.R.Raman,
Ag. Chief Justice
Thottathil B.Radhakrishnan,
Judge
vns