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2021 Supreme(Ker) 474
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.B.SURESH KUMAR, J.
John Chandy, S/o.Chandy John – Appellant
Versus
The District Collector, Kottayam, Collectorate, Collectorate - Respondent
WP(C) No. 21490 of 2019
Decided on : 22-06-2021
Advocate Appeared:
For the Appellant : SAJI MATHEW, SRI.DENU JOSEPH, SMT.NEETHU REGHUKUMAR
For the Respondent: SRI.MOHAMMED ANZAR K.J., SRI.SIBY CHENAPPADY, SC, KOTTAYAM MUNICIPALITY, SRI.V.PHILIP MATHEW
Point of law: Encroachment of Government Land - Initiating proceedings under the Act, it is sine qua non that the land shall be either Government land or puramboke land and that where the occupant raises a bonafide claim of title supported by various documents, action under the Act may not be justified
Headnote:
Kerala Land Conservancy Act, 1957 - Seventh respondent who purchased land has annexed the adjoining Government lands including river puramboke of the same village to the land purchased by him by constructing compound wall and barbed wire fencing around the land - seventh respondent has thereupon constructed a convention centre, not only in the land purchased by him, but also in a portion of the Government land –whether the interest claimed by the petitioners over the Government lands allegedly encroached upon by the seventh respondent is sufficient to confer on them locus standi to institute the writ petition
Finding of the Court:
Proceedings under the Act are yet to be initiated. The competent authority is only at the preliminary stage of ascertaining whether there is encroachment upon the Government land. As noted, the grievance of the petitioners is only that the proceedings initiated in terms of Ext.P6 notice for fixation of the boundaries of the property purchased by the seventh respondent on the basis of the complaints of encroachment made against the seventh respondent have been dropped midway. Likewise, the prayer of the petitioners is only for a direction to the concerned respondents to continue and complete the proceedings initiated in terms of Ext.P6 notice.
Result; Petition dismissed
JUDGMENT :
The questions involved in these matters are closely interlinked and they are therefore, disposed of by this common judgment. The parties and documents are referred to in this judgment, as they appear in W.P.(C) No.21490 of 2019.
2. The first petitioner owns 2.8 Ares of land in Re-Survey No.74/4 of Muttambalam Village in Kottayam District. The second petitioner is a person residing in the locality of the residence of the first petitioner. It is alleged by the petitioners that the seventh respondent who purchased 1.22.13 Hectares of land in Re-Survey No.13 of Muttambalam Village during 2010 has annexed the adjoining Government lands including river puramboke in Re-Survey Nos.18, 19, 20 and 49 of the same village to the land purchased by him by constructing compound wall and barbed wire fencing around the land. It is also alleged by the petitioners that the seventh respondent has thereupon constructed a convention centre, not only in the land purchased by him, but also in a portion of the Government land annexed to the same, and is using the remaining portion of the Government land as the car parking area for the convention centre.
3. On receipt of complaints from the first petitioner and others who are residing in the locality, the fourth respondent issued Ext.P6 notice to the seventh respondent as also to the owners of lands adjoining to the land of the seventh respondent in Re-Survey No.13 informing them that the concerned Taluk Surveyor would fix the boundaries of the land in Re-Survey No.13 on 27.05.2019. It is alleged by the petitioners that with a view to evade the fixation of the boundary proposed by the fourth respondent, the seventh respondent requested the fourth respondent to postpone the measurement pretending that he is unable to be present at the land on the day fixed for measurement. It is stated by the petitioners that on the basis of the said request, further proceedings pursuant to Ext.P6 notice was deferred by the fourth respondent. It is also alleged by the petitioners that the seventh respondent is a very influential person and he made the request aforesaid for deferring the measurement with a view to manipulate the revenue records. The petitioners, therefore, seek directions to respondents 1, 3, 4 and 5 to initiate steps forthwith for identifying the Government lands encroached by the seventh respondent and recover the same in terms of the Kerala Land Conservancy Act, 1957 (the Act).
4. On 06.08.2019, this court passed the following interim order:
“Admit. Government Pleader takes notice for respondents 1 to 5. Standing Counsel takes notice for the sixth respondent. Urgent notice to the seventh respondent.
The fourth respondent shall find out whether the construction being undertaken by the seventh respondent is encroaching into Government land or river puramboke and file a report before this court. The fourth respondent shall also conduct an inspection after notice to the petitioner as well as to respondents 6 and 7.
Post on 03.09.2019.”
5. A counter affidavit has been filed on behalf of the seventh respondent in the writ petition on 03.09.2019, stating, among others, that he has not encroached upon any Government land; that a portion of the land purchased by him is shown mistakenly in the revenue records as puramboke and that complaints, on the basis of which Ext P6 notice was issued, have been preferred taking advantage of the said mistake. The fact that the first petitioner is a person residing near the land purchased by the seventh respondent and the fact that the second petitioner is a person residing in the locality of the said land have been admitted by the seventh respondent In the counter affidavit. The seventh respondent has also admitted in the counter affidavit that further proceedings pursuant to Ext.P6 notice was deferred on the basis of a request made by him.
6. On receipt of notice in the writ petition, the seventh respondent preferred representations before respondents 1 and 3 stating, a
