Judgment
W.P.(C) No.18305 of 2013 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 23RD DAY OF DECEMBER 2022 / 2ND POUSHA, 1944 WP(C) NO. 18305 OF 2013 PETITIONER:
M/S.SAJ FLIGHT SERVICES(P)LTD., REGISTERED OFFICE AT 8- A, GST ROAD, KATHIPPARA JN., ALATHUR, CHENNAI-600 016, REPRESENTED BY ITS DIRECTOR, MINI SAJAN VARGHESE, AGED 45 YEARS, W/O.SRI.SAJAN BVARGHESE, RESIDING AT KANJIRAKKATTU HOUSE, POTHUJENAM GARDENS, KUMARAPURAM, (MEDICAL COLLEGE.P.O), KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM TALUK.
THE ADDRESS OF THE 5TH RESPONDENT IS CORRECTED AS PER ORDER DATED 26.7.2013 IN I.A.NO.10166/2013 BY ADVS.
SMT.SUMATHY DANDAPANI (SR.)
SRI.MILLU DANDAPANI RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, TRIVANDRUM. 695 001.
2 THE TAHSILDAR KUTTANADU MANCOMPU, ALLEPPEY DISTRICT.
3 THE ADDITIONAL TAHSILDAR, KUTTANADU MANCOMPU, ALLEPPEY DISTRICT.
4 VILLAGE OFFICER, KAINAKARY VILLAGE, KUTTANADU TALUK, ALLEPPEY DISTRICT.
5 THE ASSISTANT ENGINEER, KERALA MINOR IRRIGATION SUB DIVISION OFFICE,KUTTANADU MANCOMPU -679 533.
W.P.(C) No.18305 of 2013 2 THE ADDRESS OF THE 5TH RESPONDENT IS CORRECTED AS PER ORDER DATED 26.7.2013 IN I.A.NO.10166/2013.
R1 TO R5 BY SRI.JOBY JOSEPH,SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.18305 of 2013 3 JUDGMENT Dated this the 23rd day of December, 2022 Petitioner is a private limited company incorporated under the Indian Companies Act, which is engaged in the business of tourism and has resorts in various places in the State of Kerala. According to the petitioner, as part of the expansion programme, the petitioner company has purchased a property in Kuttanad Taluk comprising in Re-Sy Nos.216/1, 216/3, 216/12/2 of Block No.9 of Kainakari Village, Alappuzha District. It is further submitted that petitioner has intended to construct 5 cottages, out of which two cottages have been constructed in the said property.
2. It is the case of the petitioner that now the Assistant Engineer, Kerala Minor Irrigation Sub Division Office, Kuttanadu, Mancompu – the 5th respondent, has decided to construct a bund wall across the property of the petitioner. It is further submitted that the Additional Tahsildar, Kuttanad, Mancompu – the 3rd respondent, has issued Exhibits P5 and P9 notices directing the petitioner to vacate the poramboke properties.
3. The grievance highlighted by the petitioner is that when Exhibit P5 notice was received, the petitioner has submitted Exhibit P6 reply dated 14.6.2013.
W.P.(C) No.18305 of 2013 4 seeking time for filing objection and participating in the proceedings. However, overlooking the contentions raised in Exhibit P6, Exhibit P9 notice dated 2.7.2013 is issued directing the petitioner to vacate the premises within 48 hours from the date of receipt of the notice. It is thus aggrieved by the coercive action against the petitioner as per Exhibit P9, the writ petition is filed.
4. A detailed counter affidavit is filed by the Tahsildar, Kuttanad refuting the allegations and claims and demands raised by the petitioner. The relevant portion of the counter affidavit reads thus:
“3. It is submitted that the local people of Bhuthapandam Kayal had submitted petitions before the Revenue Minister, District Collector, Revenue Divisional Officer and the Tahsildar, Kuttanad in which it is stated that certain neighboring land owners of the Bhuthapandam Kayal has encroached and reclaimed the kayal. Thereafter, the petition was forwarded to the 4th respondent and he conducted enquiry and reported that the extent of the bhuthapandam Kayal is more that 74 hectors.
Therefore, it is very difficult to identify the encroachment. Accordingly, the 3rd respondent deputed a special team consisting 3 surveyors and village officer concerned. The special team has conducted inspection and enquiry and found that the petitioner along with two others had encroached the kayal puramboke. The petitioner encroached an extent of 3.084 Ares of puramboke land. Therefore, Form A notice has been sent to the petitioner.
True copy of the Form A notice is produced herewith and marked as Exhibit R2(a). A clerical mistake has been happened while preparing the
W.P.(C) No.18305 of 2013 5 Exhibit R2(a) notice and the extent mentioned in the notice & 81.094 m² instead of 3.084 Ares. But the petitioner did not turn up and sent a letter stating that he has not encroached the Government land. True copy of the letter sent by the petitioner is produced herewith and marked as Exhibit R2(b). Thereafter Ext.P5 Form B notice was issued on 05.6.2013.
4. It is submitted that Ext.P5 Form B notice was issued to the petitioner under Section 15 of the Kerala Land Conservancy Act 1957 and the same was acknowledged by the petitioner in response to Ext.P5 notice, the petitioner issued Ext.P6 registered notice requested for further hearing. It is contended in Ext.P6 notice that no survey was conducted in the petitioner's property and no proper notice was given to him. The said averment is totally incorrect. The Special team was constituted for the purpose of surveying and identifying the encroachment of the puramboke land and the Special Team found that the petitioner has encroached 3.084 Acres of kayal puramboke and reclaimed by using mud from Bhuthapndam kayal.
5. It is also submitted that proper survey was conducted with the help of the Taluk Surveyor in Bhuthapandam kayal in survey No.238 and an extent of 74.9475 hectors of land were measured. The petitioner has encroached an extent of 3.084 Ares on the northern side of the Bhuthapandamkayal.
It is submitted that there is no need to issue notice to the petitioner before surveying the Government kayal puramboke. Moreover, the petitioner has given sufficent opportunity to prove their contentions with respect to the encroachment."
W.P.(C) No.18305 of 2013 6 5. I have heard learned counsel for petitioner Sri.Millu Dandapani, learned Senior Government Pleader Sri.Joby Joseph for the respondents and perused the pleadings and materials on record.
6. Even though various contentions are raised by the petitioner and counter contentions raised by the Tahsildar, Kuttanad, I am of the view that such factual aspects can be resolved only by a fact finding body looking into the files maintained by the Revenue Department. Learned counsel for petitioner submitted that the petitioner would be satisfied, if the petitioner is given an opportunity to file objection and participate in the proceedings pertaining to Exhibits P5 and P9.
7. In that view of the matter, I am of the view that the writ petition can be disposed of with appropriate directions. Accordingly, the petitioner is given a liberty to file suitable objection to Exhibits P5 and P9 notices issued by the Tahsildar, Kuttanad, within one month from the date of receipt of a copy of this judgment and if such an objection is filed by the petitioner, a final decision shall be taken by the Tahsildar, Kuttanad, Mancompu, Alappuzha District, within two months thereafter, after providing an opportunity of hearing and participation to the petitioner. Coercive action, if any, contemplated as per Exhibit P9, shall be
W.P.(C) No.18305 of 2013 7 kept in abeyance till such time.
Writ petition is disposed of accordingly.
In view of the disposal of the writ petitions, the pending interlocutory applications, if any, will stand closed.
Sd/- SHAJI P.CHALY smv JUDGE
W.P.(C) No.18305 of 2013 8 APPENDIX OF WP(C) 18305/2013 PETITIONER'S EXHIBITS P1- TRUE COPY OF THE SALE DEED EXECUTED IN FAVOUR OF THE PETITIONER COMPANY, DATED 1.11.2004.
P2- TRUE COPY OF THE SALE DEED EXECUTED IN FAVOUR OF THE PETITIONER COMPANY, DATED 29.12.2005.
P3- TRUE COPY OF SUIT NO.92/2013 ALONG WITH I.A FILED BEFORE THE MUNSIFF'S COURT, ALLEPPEY.
P4- TRUE COPY OF THE INJUNCTION ORDER IN I.A.556/2013 IN SUIT NO.92/2013, DATED 11.2.2013.
P5- TRUE COPY OF THE NOTICE ISSUED UNDER SECTION 12 OF KERALA LAND CONSERVANCY ACT, 1957, DATED 5.6.2013.
P6- TRUE COPY OF THE LETTER DATED 14.6.2013 SUBMITTED BY THE PETITIONER TO THE ADDL.
TAHSILDAR, ALAPPUZHA DISTRICT.
P7- TRUE COPY OF THE ACKNOWLEDGEMENT CARD SHOWING THE RECEIPT OF EXT.P6.
P8- TRUE COPY OF THE NOTICE DATED 19.6.2013 ISSUED BY P.K.MATHEW, ADVOCATE AND NOTARY, ALLEPPEY-1.
P9- TRUE COPY OF THE NOTICE NO.B3.11003/09, DATED 2.7.2013.
P10- TRUE COPY OF THE PHOTOGRAPHS SHOWING THE BUND WALL CONSTRUCTED ACROSS THE PETITIONER'S PROPERTY