IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 193 of 2011(Y)
1. MUSLIM RELIEF COMMITTEE (REGD.),
... Petitioner
Vs
1. THE GOVERNMENT OF KERALA,
... Respondent
2. THE LAND REVENUE COMMISSIONER,
3. THE DISTRICT COLLECTOR,
4. THE REVENUE DIVISIONAL OFFICER,
5. THE TAHSILDAR,
For Petitioner :SRI.A.MOHAMED MUSTAQUE
For Respondent : No Appearance
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :05/01/2011
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) No. 193 of 2011 Y
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Dated this the 5th day of January, 2011
J U D G M E N T
Petitioner is a Charitable Society, which claims
ownership of 3 cents of land in Re-survey No.25/15C of Chokli
village of Thalassery Taluk. According to the petitioner, on
the strength of Exts.P1, P1(a) and P1(b) of 1998, they
constructed a three storied building. At that stage, there was
an allegation of encroachment into puramboke land. It is
stated that, seeking to injunct the petitioner from proceeding
with the construction, a stranger had filed O.S.No.288/1990
before the Munsiff Court, Thalassery, the plaint of which is
Ext.P2. According to the petitioner, in Ext.P3 written
statement filed by the third respondent herein, he had
confirmed that the allegation of encroachment was referred to
the Tahsildar, Thalassery and that the Taluk Surveyor
inspected the land with reference to the revenue records and
reported that there was no encroachment. It is stated that
W.P.(C) No.193/2011
: 2 :
subsequently, the suit was dismissed for default.
2. According to the petitioner, in 2000, notice was
issued under the provisions of the Kerala Land Conservancy
Act and that Ext.P6 order was passed. Case of the petitioner
is that notice was not served on the representative of the
petitioner and, therefore, the petitioner could not appear and
contest the matter. It is stated that, irrespective of the above,
they filed Ext.P7 appeal before the RDO. The RDO issued
Ext.P8 order, rejecting the appeal but, however, reducing the
area into 10 sq.m. as against 16.7 sq.m. mentioned in Ext.P6
order of the Tahsildar. It is stated that, against Ext.P8 order,
Ext.P9 revision was filed before the third respondent, which
was also rejected by Ext.P10 order. Although the petitioner
challenged Ext.P10 order before this Court by filing W.P.(C)
No.21296/2006, that writ petition was disposed of by Ext.P11
judgment, relegating the petitioner to file revision. It is stated
that accordingly the petitioner filed a revision petition before
the Land Revenue Commissioner, which was also dismissed
W.P.(C) No.193/2011
: 3 :
by Ext.P12 order. It is challenging Exts.P6, P8, P10 and P12,
this writ petition is filed.
3. Two contentions have been raised. One is that,
before passing Ext.P6, the petitioner was not heard. As far as
this contention is concerned, I do not find any merit in this
contention for the reason that the petitioner was heard by the
appellate authority and revisional authorities, viz., RDO,
District Collector and Land Revenue Commissioner. In that
view of the matter, it cannot be said that any prejudice is
caused for the reason that the petitioner was not heard by the
Tahsildar before passing Ext.P6.
4. The second contention raised by the learned
counsel for the petitioner is that the finding of encroachment
which has been found in the impugned orders is incorrect.
This contention is sought to be substantiated by the petitioner
by relying the averment in Ext.P3 written statement filed by
the defendants in O.S.No.288/1990, wherein it is stated that
there was no encroachment by the petitioner. First of all, that
W.P.(C) No.193/2011
: 4 :
suit was not decided by the Court on merits but, it was
dismissed for default. Therefore, the petitioner cannot plead
any resjudicata as against the respondents. Secondly, a
reading of Ext.P6 order shows that on verification, it was
found that the petitioner has encroached in the puramboke
land. This finding of the Tahsildar is confirmed by the RDO in
Ext.P8 order. Again, Ext.P10 order passed by the District
Collector shows that the RDO inspected the land and
confirmed the encroachment of the petitioner. The relevant
portion of Ext.P10 order reads as under:-
” On going through the argument notes
and connected records, it is seen that
Revision petitioners Committee (ie, Muslim
Relief Committee(Registered), Peringadi has
encroached 10 square meter of land in
R.S.No.25/15 of Chokli amsom Peringadi
desam. The Revenue Divisional Officer,
Thalassery has inspected the site and found
that the Muslim Relief Committee
(Registered), Peringadi has encroached the
Government land. Further, the land was
W.P.(C) No.193/2011
: 5 :measured by the Superintendent of Survey
and Land Records, Kannur and confirmed
the encroachment. In the light of the above,
it is clear that the revision petitioners
committee had encroached an extent of 10
square meter of Government land in
R.S.No.25/15 of Peringadi desam Chokli
Village.”
5. This finding of the lower authorities has been
confirmed by the Land Revenue Commissioner. Apart from
the aforesaid two contentions, which do not have any
substance, petitioner has not placed anything to take a view
different from what has been concurrently found by the
statutory authorities.
Writ petition fails and it is dismissed.
(ANTONY DOMINIC, JUDGE)
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