Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 28TH DAY OF MARCH 2022 / 7TH CHAITHRA, 1944 WP(C) NO. 550 OF 2022 PETITIONER: K.V.DAS, AGED 72 YEARS, S/O.VELAYUDHAN, KADAYATH HOUSE, PUNNEKAD, KEERAMPARA P.O, PIN - 686 681, ERNAKULAM DISTRICT. BY ADVS.JOMON J. MALIEKAL JOSEPH P.P. RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY SECRETARY PUBLIC WORKS DEPARTMENT, PIN - 695 121. 2 THE EXECUTIVE ENGINEER, EXECUTIVE ENGINEER'S OFFICE, PWD ROAD DIVISION, MUVATTUPUZHA, PIN - 686 673. 3 THE ASSISTANT EXECUTIVE ENGINEER, PWD ROAD SUB DIVISION, KOTHAMANGALAM, PIN - 685 603. 4 DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM - 682 030. 5 DISTRICT SURVEY SUPERINTENDENT, CIVIL STATION, KAKKANAD, ERNAKULAM - 682 030. 6 TALUK SURVEYOR, KOTHAMANGALAM, PIN- 686 691. 7 TAHSILDAR, KOTHAMANGALAM, FOURTH FLOOR, REVENUE TOWER, SH 16, KOTHAMANGALAM - 686 691. *ADDL.R8 K.P.VARKEY, AGED 83 YEARS, S/O.PAILY, KOLEMBEL HOUSE, THATTEKKADU P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN- 686681. *ADDITIONAL R8 IMPLEADED AS PER ORDER DATED 28.02.2022 IN I.A. 01/2022 IN WP(C) 550/2022. BY ADV. ALEXANDER JOSEPH, SMT.MABLE C.KURIAN, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
28.03.2022, ALONG WITH WP(C).3787/2022, 4863/2022, 6005/2022 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 28TH DAY OF MARCH 2022 / 7TH CHAITHRA, 1944 WP(C) NO. 3787 OF 2022 PETITIONERS:
1 K.V.DAS, AGED 72 YEARS, S/O.LATE VELAYUDHAN, KADAYATH HOUSE, PUNNEKAD, KEERAMPARA P.O., PIN-686 681, ERNAKULAM DISTRICT. 2 JAYANGEEV JOSEPH, AGED 41 YEARS, S/O.M.P.JOSEPH, MYPPAN HOUSE, VELIYILCHAL, THATTEKKAD P.O., KEERAMPARA, NOW RESIDING AT WINGHAM COURT CARE HOME, OAKEN LANE, KT10, ORQ, EASHER BUPA, U.K., REP. BY HIS POWER OF ATTORNEY HOLDER BIJU DAVIS, AGED 49 YEARS, S/O.C.J.DEVASY, CHAKIATH HOUSE, KUTHUKUZHY P.O., KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK, PIN-686 691. BY ADVS.JOMON J. MALIEKAL JOSEPH P P
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY SECRETARY, PUBLIC WORKS DEPARTMENT, PIN-695 121. 2 THE EXECUTIVE ENGINEER, EXECUTIVE ENGINEER'S OFFICE, PWD ROAD DIVISION, MUVATTUPHZHA, PIN-686 673. 3 THE ASSISTANT ENGINEER, PWD ROAD SUB DIVISION, KOTHAMANGALAM, PIN-685 603. 4 DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM-682 030. -3- 5 DISTRICT SURVEY SUPERINTENDENT, CIVIL STATION, KAKKANAD, ERNAKULAM-682 030. 6 TALUK SURVEYOR, KOTHAMANGALAM, PIN-686 691. 7 TAHSILDAR, KOTHAMANGALAM, FOURTH FLOOR, REVENUE TOWER, SH 16, KOTHAMANGALAM-686 691. BY ADV.SMT.MABLE C.KURIAN, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 28.03.2022, ALONG WITH WP(C).550/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -4-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 28TH DAY OF MARCH 2022 / 7TH CHAITHRA, 1944 WP(C) NO. 4863 OF 2022 PETITIONER: WILSON GEORGE, AGED 53 YEARS, SON OF GEORGE¸ PULLAN HOUSE, THATTEKAD P.O, VELIYILCHAL, THONDIMATTOM KARA, ERNAKULAM, PIN - 686681. BY ADVS.PEEYUS A.KOTTAM JOSEPH P P RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY SECRETARY PUBLIC WORKS DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM, PIN - 695001. 2 EXECUTIVE ENGINEER, EXECUTIVE ENGINEER’S OFFICE, PWD ROAD DIVISION, MUVATTUPUZHA, PIN - 686673 3 ASSISTANT EXECUTIVE ENGINEER, PWD ROAD SUB DIVISION, KOTHAMANGALAM, PIN - 685603. 4 DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN - 682030. 5 DISTRICT SURVEY SUPERINTENDENT, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN - 682030. 6 TALUK SURVEYOR, TALUK OFFICE, FOURTH FLOOR, REVENUE TOWER, SH 16, KOTHAMANGALAM, PIN - 686666. -5- 7 TAHSILDAR, KOTHAMANGALAM, FOURTH FLOOR, REVENUE TOWER, SH 16, KOTHAMANGALAM, ERNAKULAM, PIN - 686691. BY ADV.SMT.MABLE C.KURIAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 28.03.2022, ALONG WITH WP(C).550/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -6-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 28TH DAY OF MARCH 2022 / 7TH CHAITHRA, 1944 WP(C) NO. 6005 OF 2022 PETITIONER: SHAJU JOSEPH, AGED 57 YEARS, SON OF P.A.JOSEPH, PULICHAMAKKAL, VELIYELCHAL, THATTEKAD P.O, KOTHAMANGALAM, PIN - 686681. BY ADVS.PEEYUS A.KOTTAM JOMON J. MALIEKAL ARJUN S BENEDICT JOSEPH P P RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY SECRETARY, PUBLIC WORKS DEPARTMENT, ROOM NO. 388 1ST FLOOR, MAIN BLOCK, SECRETARIAT, ERNAKULAM, PIN - 695001. 2 EXECUTIVE ENGINEER, EXECUTIVE ENGINEER’S OFFICE, PWD ROAD DIVISION, MUVATTUPUZHA, PIN - 686673. 3 ASSISTANT EXECUTIVE ENGINEER, PWD ROAD SUB DIVISION, KOTHAMANGALAM, PIN - 685603. 4 DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN - 682030. 5 DISTRICT SURVEY SUPERINTENDENT, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN - 682030. -7- 6 TALUK SURVEYOR, TALUK OFFICE,FOURTH FLOOR, REVENUE TOWER, SH 16, KOTHAMANGALAM, KERALA, PIN - 686666. BY ADV.SMT.MABLE C.KURIAN, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ALONG WITH WP(C).550/2022 AND CONNECTED CASES ON 28.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -8-
JUDGMENT
[WP(C) Nos.550/2022, 3787/2022, 4863/2022, 6005/2022] The petitioners in these cases are alleged to be persons in encroachment of the 'Punnekad - Palamattom Road'; but they assert that this imputation against them is wrong; thus impugning the eviction notices issued to them by the Executive Engineer, Public Works Department, under the provisions of the Kerala Highway Protection Act, 1999 (hereinafter referred to as 'the Act' for short).
2. Sri.Peeyus A. Kottam- learned counsel for
the petitioners in these cases, alleges that the road in question will not come within the ambit of the Act, since there has been no publication of the declaration of it as being classified either as a State Highway, or as a Bill Highway or as a Major District Road or any other category of road under the provisions of Section 3 thereof. He then
-9- made an adscititious argument that even if the Executive Engineer is held to be having jurisdiction in this matter, the impugned notices in these cases are egregiously improper since it has been issued without affording his clients an opportunity of being heard, though, in the case of certain others who had approached this Court earlier, it had been directed that they be granted an opportunity of being heard before final action is taken against them. The learned counsel argued that the impugned notices are, therefore, illegal
and unlawful, particularly because his clients have been caught completely by surprise to be hurled with an allegation that they have
encroached into the road, though they have been in possession of the same for the last several years, if not decades.
3. In response, Sri.Alexander Joseph -
learned counsel appearing for the party respondent -10- in W.P.(C)No.550/2022, submitted that the road in question is a Major District Road and thus within the ambit of the 'Act' and hence, that the challenge of the petitioners against the impugned notices is without any basis. He, therefore, prayed that the competent Authority be allowed to complete action based on the said notices without
any avoidable delay. Sri.Alexander Joseph concluded his submissions saying that the petitioner in W.P.(C)No.550/2022, in any case, cannot impel any contention as has been done
herein, since a judgment was delivered by this Court in W.P.(C)No.23569/2019, in which he was a party, and that action was completed strictly in terms of the directions therein. He thus prayed that this writ petition be dismissed.
4. The learned Senior Government Pleader - Smt.Mable C.Kurian, supported the impugned notices contending that the road in question is certainly -11- one which comes within the sweep of the 'Act'; and that notifications have been issued qua Section 3
of the 'Act', namely GO(MS)No.63/2016/PWD dated 03.09.2016. She added that, as per further notification - bearing SRO No.163/2000 dated 23.02.2000, Executive Engineers of Public Works
Department (PWD), have been appointed, under the provisions of Section 4 of the 'Act' as the 'Highway Authority'. She thus argued that all the allegations of the petitioners, impelled against the jurisdiction of the respondent Executive Engineer, are without legs to stand on.
5. The learned Senior Government Pleader then
predicated that, as is evident from the impugned notices, a Survey has already been conducted by the competent Authority, with the petitioners being informed of the same, leading to further action being initiated in terms of law. She submitted that, therefore, even on the merits of -12- this matter, the contentions of the petitioners cannot be accepted.
6. In reply, Sri.Peeyus A.Kottam
reiteratingly submitted that none of the aforementioned notifications come within the scope of Sections 3 and 4 of the 'Act'; and that, in any event of the matter, even it is so, the impugned notices cannot find favour of this Court, because the survey - contrary to what has been stated by the learned Senior Government Pleader - was conducted without affording his clients any opportunity of being heard or in impelling their version. He asserted that, therefore, the entire
action, leading to issuance of the impugned notices, is mala fide and vitiated by various factors, which would render them totally
untenable.
7. When I consider the afore submissions, it
is indubitable that there are two broad issues
-13- raised by the petitioners in these cases: namely,
(a) that the Executive Engineer, PWD, does not obtain the jurisdiction to have issued the impugned notices; and (b) that impugned notices have been issued without following due procedure.
8. As far as the competence of the Executive Engineer is concerned, the aforementioned notifications are stated to have been issued by the Government in terms of Sections 3 and 4 of the
'Act', as per the learned Senior Government Pleader and that this Court cannot speak on it affirmatively at this stage, when no challenge has been mounted against them.
9. As far as the second contention is concerned, since the petitioners vehemently allege that they were not offered any opportunity of being heard before the impugned notices were issued, nor they even given copies of the survey report and sketch relied upon by the Executive
-14- Engineer, I am certain that the requirements of fair procedure mandates that they be given such an opportunity, and necessary action taken only thereafter. In the afore circumstances and since this Court is not in a position to decide upon either of the two contentions on its merits at this stage, I am of the firm view that these matters will need to be decided by the competent Authority at the first instance, which alone can give rise to a right to seek judicial review. I thus deem it appropriate to dispose of these writ petitions in the following manner:
(a) The petitioners are given
liberty to make their objections against the impugned notices; and if this is done within a period of two weeks from the date of receipt of a -15- copy of this judgment, same shall be considered by the Executive Engineer, leading to necessary orders to be issued thereon, after affording them, as also the party respondents in all these cases, necessary opportunity of being heard, as expeditiously as is possible, but not later one month thereafter.
(b) On the afore proceedings
being issued and it being communicated to the petitioners and to the party respondents, the Executive Engineer will be at full liberty to take necessary action in terms of law, following due procedure.
(c) I make it reiteratingly
clear that this Court has not -16- considered the question regarding the jurisdiction of the Executive Engineer or the validity of the survey conducted; and that if the petitioners are to raise such objections in terms of the liberty
(a) above, the competent Authority
will decide both and answer it in the resultant order, as per law. Sd/- DEVAN RAMACHANDRAN JUDGE rp/akv -17- APPENDIX OF WP(C) 550/2022 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE KEERAMPARA VILLAGE PERTAINING TO PETITIONER'S PROPERTY HAVING 42.52 ARES OF PROPERTY IN SY.NO.611/1A-134/46. EXHIBIT P2 THE TRUE COPY OF TAX RECEIPT SHOWING PAYMENT OF PROPERTY TAX. EXHIBIT P3 THE TRUE COPY OF THE NOTICE DATED ENGINEER. EXHIBIT P4 THE ROUGH SKETCH SHOWING THE LIE AND NATURE OF KOTHAMANGALAM PERUMBANKUTH ROAD AND PUNNEKAD - PALAMATTOM ROAD. EXHIBIT P5 THE TRUE COPY OF THE SKETCH SHOWING THE PETITIONER'S PROPERTY AND THE ROAD RUNS THROUGH HIS NORTHERN BOUNDARY, ISSUED FROM THE OFFICE OF THE CENTRAL SURVEY, THIRUVANANTHAPURAM.
EXHIBIT P6 THE TRUE COPY OF THE APPEAL SUBMITTED BY THE PETITIONER BEFORE THE TAHSILDAR DATED 13/12/2021. RESPONDENT'S/S EXHIBITS : NIL. //TRUE COPY// P.A. TO JUDGE -18- APPENDIX OF WP(C) 3787/2022 PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER. EXHIBIT P2 THE TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT TO THE 2ND PETITIONER. EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN WPC EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 07.02.2019 IN WPC 28478/19. RESPONDENT'S/S EXHIBITS : ANNEXURE R2(a) TRUE COPY OF THE DETAILED SKETCH //TRUE COPY// P.A. TO JUDGE -19- APPENDIX OF WP(C) 4863/2022 PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF TAX RECEIPT SHOWING PAYMENT OF PROPERTY TAX FOR THIS PROPERTY FOR THE YEAR 2021-22 EXHIBIT P2 THE TRUE COPY OF THE SKETCH PREPARED BY THE
TALUK SURVEYOR AT THE TIME OF DELIVERY OF THE PROPERTY AS PER SALE CERTIFICATE BEARING NO. 2010 OF 1952
EXHIBIT P3 THE TRUE COPY OF THE SKETCH PREPARED BY THE TALUK SURVEYOR DATED 22.06.2015 EXHIBIT P4 THE TRUE COPY OF THE BUILDING PERMIT BEARING NO. A3-2513-46/16-17 RENEWED BY THE KEERAMPARA GRAMA PANCHAYAT DATED 20.01.2020 EXHIBIT P5 THE TRUE COPY OF THE NOTICE DATED 18.12.2021 ISSUED BY THE EXECUTIVE ENGINEER EXHIBIT P6 THE TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 31.01.2022 RESPONDENT EXHIBITS EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN 2008(3) KHC 261 (PEER MOHAMED M AND OTHERS V. CHRANKANDOM GRAMA PANCHAYAT AND OTHER) EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN 2012(3) KHC
250 (MUHAMMED SALI V. OCHIRA GRAMA PANCHAYAT) //TRUE COPY// P.A. TO JUDGE -20- APPENDIX OF WP(C) 6005/2022
PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF TAX RECEIPT SHOWING PAYMENT OF PROPERTY TAX FOR THIS PROPERTY FOR THE YEAR 2021-22 EXHIBIT P2 THE TRUE COPY OF THE NOTICE DATED 31.01.2022 BEARING NO. A93350/19 ISSUED BY THE 2ND RESPONDENT EXHIBIT P3 THE TRUE COPY OF THE MAIL SENT BY THE PETITIONER DATED 03.02.2022 EXHIBIT P4 THE TRUE COPY OF THE REPRESENTATION DATED 04.01.2022 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT RESPONDENT'S/S EXHIBITS : NIL. //TRUE COPY// P.A. TO JUDGE