THOMMY GEORGE Vs. STATE OF KERALA

JUDGEMENT

(1.) Being aggrieved by Ext.P10 notice issued under Rule 13A of the Kerala Land Conservancy Rules, 1958, calling upon the petitioner to remove the unauthorised occupation of road puramboke, he has approached this Court with this writ petition seeking to quash the same and for a further direction to the 2nd respondent to dispose of Ext.P9 appeal filed under Rule 18 of the Rules for Assignment of Land within Municipal and Corporation Areas Rules, 1995 (for short 'Rules, 1995').

(2.) It is the case of the petitioner that he is in possession and occupation of 1.5 cents of property comprised in Re-survey No.30 in Block No. 12 of Kavumbhagom Village. He states that he is running a shop in the said property. The property is situated on the eastern side of the road leading from Kavumbhagom to Idinjilam. The said property is also abutting the Peringol - Utramel Municipal road which passes through the northern side of the shop room in the east west direction. According to the petitioner, he has been remitting property tax as well as licence fees with the Thiruvalla Municipality as is evident from Ext.P1 and Ext.P2 respectively. He contends that though the property has been in the possession of the petitioner and his predecessors for over hundred years, the respondents have been treating the property as a puramboke. The petitioner has been paying prohibitory tax as is evident from Ext.P3. It is contended that for the purpose of widening the Kavumbhagom - Idinjilam road, Ext.P5 notice was issued by the 5th respondent invoking the provisions of Section 15 of the Land Conservancy Act, 1957. Being aggrieved, the petitioner approached this Court and filed W.P.(C) No.12210 of 2020 and pending consideration of the application, he preferred Ext.P6 application seeking assignment under the Assignment of Land within Municipal and Corporation Areas Rules, 1995. This Court, by judgment dated 21.7.2020, disposed of the writ petition directing the District Collector to consider his request for assignment in an expeditious manner. The petitioner states that the District Collector relegated the matter to the Deputy Collector (LR), who in turn rejected the application filed by the petitioner for assignment by issuing Ext.P7 order. Challenging the said order, the petitioner has preferred Ext.P9 appeal before the 2nd respondent. However, while the appeal is pending as aforesaid, Ext.P10 notice was issued by the 5th respondent calling upon the petitioner herein to remove the encroachment within a period of 48 hours. The said notice is under challenge.

(3.) In the statement filed by the 3rd respondent it is stated that the petitioner has sought for assignment of land comprised in Block No. 12 in Survey No. 30 of Kavumbhagom Village which is the Municipal road. The property which has been encroached upon by the petitioner is comprised in Sy. No. 1 in Block No. 13 of Kavumbhagom village. When survey was conducted, it was revealed that the petitioner has encroached upon 19 sq. mts. of Puramboke land and he has constructed a shop building as well. It is pointed out that when the revenue authorities found that the petitioner had encroached upon road puramboke, a land conservancy case was booked against the petitioner as L.C.No.58/62 and a fine of Rs.1 per year is being realized from the petitioner every year as Nirodhana Karam (Prohibitory assessment). The widening of the Kavumbhagom - Idinjilam road was taken up and included in the KIFBI scheme and notice to the petitioner was issued when it was noticed on detailed survey that he has been occupying a vital portion of the road on the corner where the Perongol - Utramel Municipal road touches the Kavumbhagom - Idinjilam road. On receipt of the notice, the petitioner had approached this Court and by Ext.P7 judgment , the respondents were directed to consider the request for assignment of land. It is stated by the respondents that only in cases wherein the property can be assigned without detriment to the Government or public interest can the property be assigned under the Rules of 1995. It is pointed out that the land on the sides of the road required for widening cannot be assigned as provided under Rule 6 (v) of the Rules, 1995. As directed by this Court, the District Collector considered the request for assignment and after hearing all the stakeholders had rejected the request. According to the 3rd respondent, the property which has been encroached upon by the petitioner and in respect of which he has been paying prohibitory assessment is required for the widening of the road and in public interest. It is further stated that since the provisions of Rules, 1995 prohibits assignment of puramboke property if the same is required for widening of the road, the District Collector was well justified in rejecting his application.