C I MARTIN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner in this writ petition is the owner of a Tourist Resort and Cottage at Perinadu in Kollam District. According to the petitioner, that Tourist Resort comprised of properties belonging to him as well as some Government land. He submitted application for assignment of the Government land under the Land Assignment Act which was dismissed by the Government which according to the petitioner was without affording an opportunity of being heard to the petitioner insofar as after adjourning the case for hearing, fresh date of hearing was not notified to the petitioner. Challenging that order, the petitioner filed W.P. (C) No.5632/2008 which is pending before this court. In that writ petition, originally there was an order of stay of dispossession of the petitioner from the land. On 28.08.2008 this court vacated the interim order in view of the averments in the counter affidavit filed by the Tahsildar, Kollam. According to the petitioner, on a wrong premise that by vacating that interim order this court directed the Government to take possession of the Government land, on 29.08.2008, the respondents took forcible possession of the property. THE petitioner is aggrieved by the same. According to the petitioner, this is a highhanded action insofar as this court had not directed to take possession of the property and the petitioner was not given a reasonable opportunity in the matter. THE petitioner further contends that as is evidenced by Ext.P10 notice issued to the petitioner under the Kerala Land Conservancy Act, the respondents had initiated proceedings under the Land Conservancy Act only in respect of 28.58 ares and actually by Ext.P14 mahazar prepared for taking possession of the land, 45.68 ares of land has been taken possession of. It is under the above circumstances the petitioner has filed this writ petition seeking the following reliefs:

(2.) A counter affidavit has been filed by the 3rd respondent wherein the contention taken is that the entire 45.68 ares of land is Government land and the petitioner had encroached into the same.

(3.) AS is clear from Ext.P10 notice under the Kerala Land Conservancy Act and Rules, the petitioner was put on notice for resumption of only 28.58 ares of land. Even if the respondents has a case that the entire 45.68 ares of land is Government land, the respondents could not have resumed the entire land without putting the petitioner on notice in respect of the balance land as well. Of course, I note the contention of the petitioner that the allegation that the petitioner has encroached into other Government land also is incorrect. I am not expected to go into the correctness of the rival contentions in that regard, since that is not a subject matter of this writ petition for the present. When proceedings have been initiated under the Land Conservancy Act against the petitioner only in respect of 28.58 ares of land in possession of the petitioner, I do not think that without first initiating proceedings in respect of the balance properties also by putting the petitioner on notice with opportunity to file objections and an opportunity for a hearing the respondents could have proceeded against the entire 45.68 ares of land and resumed the entire land. Therefore the respondents are liable to be directed to restore to the petitioner possession of the land not covered by Ext.P10 notice. Accordingly the respondents are directed to restore possession of 17.10 ares of land not covered by Ext.P10 to the petitioner within one month from the date of receipt of a certified copy of this judgment. The respondents shall cause measurement of the entire land after giving prior notice to him regarding the date and time of measurement and demarcate the 28.58 ares of land covered by Ext.P10 and restore possession of the balance 17.10 ares out of 45.68 ares to the petitioner. However this would be without prejudice to the right of the respondents to take action against the balance 17.10 ares of land also if they have a case that, that property is also Government land but only after complying with the procedure prescribed under the Kerala Land conservancy Act and Rules. This writ petition is disposed of as above.