K. R. Joseph v. The District Collector — 1986 DIGILAW 150 (KER)

JUDGMENT K. Sukumaran, J. 1. This writ petition raises a question of some public importance. It indicates the extent of callousness and carelessness on the part of the revenue officials in whom the State reposed its trust for the preservation and protection of the State's property. 2. A private land was acquired by spending public money. The purpose of the acquisition was providing a public road. The acquisition was at the instance of the Cochin Corporation and within the limits of the Cochin city. The materials in the case disclose that soon after the acquisition of the land, it was encroached upon by the 3rd respondent The mahazar, sketch and form No. A prepared by the Taluk Surveyor locate the area of encroachment and furnish the details thereof. 3. The neighbour of the 3rd respondent, presumably out of a private feud was prompting, and sometimes even pressurising, the statutory authorities to vigorously pursue proceedings for the removal of the encroachment. The writ petition was filed on 16-5-1985 making a grievance of the inaction of the statutory authorities in relation to the encroachment. By an interim order passed on 17-5-1985, the Collector was directed to dispose of, within two weeks, the representation of the petitioner dated 15-1-1985 complaining about the encroachment It was pursuant to the action taken thereafter that the Taluk Surveyor, after the inspection of the property, prepared the Mahazr, sketch and Form No. A, relating to the encroachment. The petitioner was informed by letter dated 8-10-1985 by the District Collector that action was in progress to evict the encroachment. A copy of the letter was sent to the Tahsildar, Cochin for necessary action. The Tahsildar was also directed to report whether the Land Conservancy case had been so disposed of and the nature of the disposal if it had been so disposed of. The Tahsildar apparently did not attach much seriousness to the direction from the Collectorate. It . would appear that on 26-11-1985, the Tahsildar satisfied himself by addressing a letter to the Cochin Corporation pointing out that the encroachment was within, the Corporation limits and suggesting that the Corporation may, therefore, take action against the encroachment. That such a letter had been sent to the Corporation, was the reply furnish d by the Tahasildar on 17-3-1986 in reply to a demi official letter of the Deputy Collector dared 17-2-1986. That such a letter had been sent to the Corporation, was the reply furnish d by the Tahasildar on 17-3-1986 in reply to a demi official letter of the Deputy Collector dared 17-2-1986. The above stand is reiterated by the Tahsildar in the counter affidavit filed by him in the original petition. 4. The situation is obviously and totally unsatisfactory. The 2nd respondent is a statutory functionary. When it is established that there is an encroachment of public property as a result of a survey made by officials attached to his own office, and when there is a specific direction from the Collector to take necessary action in the matter, (on the basis of an interim order passed by this Court), it was certainly the duty of the 2nd respondent to take action within a reasonable time. His attitude has, however, been evasive and irresponsible, to say the least. Having regard to the antecedents of the case and the circumstances in which he had been spurred to action by his own administrative superiors, he could not wash off his hands, by pointing out an enabling circular of the Government which enumerates the various agencies who could attend to the eviction of encroachment. 5. The 2nd respondent is an authority empowered under the Land Conservancy Act, 1957 (hereinafter referred to as "the Act") to take action for the removal of the encroachment. The liability of summary eviction of unauthorised occupants is specifically dealt with in S.11 of the Act. The Collector is the authority to take action under that Section. However, S.15 of the Act empowers the Government to notify other Officers to exercise the powers of the Collector under the Act. Such a notification has been published by the Government; and thereunder the 2nd respondent has been authorised to exercise all the powers of the Collector under the Act. 6. Under S.3, the land in question, namely the public road, would be a Government land for the purpose of the Land Conservancy Act; for S.3(2) states that all public roads and streets vested in the Local Authority shall, for the purposes of the Land Conservancy Act be deemed to be the property of the Government. Even if there be any doubt, that has been clearly dispelled by the Kerala Land Conservancy (Amendment) Act, 1971 which came into force on 5-1-1971. Even if there be any doubt, that has been clearly dispelled by the Kerala Land Conservancy (Amendment) Act, 1971 which came into force on 5-1-1971. An Explanation, Explanation (IV), has been added to S.3, by the Amendment Act. The Explanation reads: "Lands belonging to the Government of any other State in India or the Kerala State Electricity Board or to a University established by law or to a corporation owned or controlled by the Government of Kerala or to a municipal corporation shall be deemed to be the property of Government within the meaning of this section." (emphasis supplied) Under the aforesaid provisions, the land in question would indubitably be the property of the Government for the purposes of the Act. The resultant position is, the encroachment is in the property belonging to the Government; and that the 2nd respondent is competent to exercise the powers of the Collector for removing such encroachment. When that is the position, he was bound to act to remove the encroachment. This is particularly so, when he had been alerted to such action by the interim orders of this Court. The continued inaction of the 2nd respondent, therefore, requires curial correction A writ of mandamus will, therefore, issue to the 2nd respondent to forthwith take action for the removal of the encroachment in accordance with law. He shall submit a report about the action taken and the result thereof, on 26-5-1986 when this Court sits after the mid summer recess. 7. The learned Government Pleader submitted that the decision of this Court in Mytheen Mohammed v. Board of Revenue & Others, 1974 KLT 134 may justify the halting manner in which the 2nd respondent proceeded. The files produced would not indicate the availability of such an excuse for the 2nd respondent. That apart, the above decision rendered under the Panchayat Act is totally inapplicable in the present case. In 1974 KLT 134 supra the Panchayat had no objection to the encroachment (made in the form of a box for collection of offerings installed by a monque in the road) That is not a position in the present case. There is no case that the encroachment in question has been permitted or even acquiesced in, by the Corporation. In 1974 KLT 134 supra the Panchayat had no objection to the encroachment (made in the form of a box for collection of offerings installed by a monque in the road) That is not a position in the present case. There is no case that the encroachment in question has been permitted or even acquiesced in, by the Corporation. A reference to the original judgment (of 1974 KLT 134 ) would indicate that the proceedings in that case started on 12-2-1970 That was long before the Land Conservancy (Amendment) Act, under which, at any rate, as regards the lands belonging to Municipal Corporation, had the effect of making such lands the property of the Government. This amendment will have much effect and impact on the powers of the 2nd respondent to remove the encroachment. After this amendment, a further consultation with the local authority for removal of the encroachment would be supremely redundant. The 2nd respondent himself has independent powers in that behalf. 8. As noted earlier, the pattern of functioning of the 2nd respondent has not been satisfactory at all. A Tahsildar is a revenue official of considerable status and responsibility. The manner in which such officials used to discharge their onerous responsibilities, both in the princely states of Travancore and Cochin and in the Presidency of Madras, probably earned for them an esteem, among and respect from the public. Under the instructions of the Board of Revenue of the then Madras Presidency, periodic verification and scrutiny used be made about encroachment into Government lands or other public property. Judged by the indications of the present case and others of the same pattern (See Achuthan v. District Collector, 1982 KLT 133 decided by Chandrasekhara Menon J. and Govinda Rao v. District Collector, 1983 KLT 329 decided by Kochu Thommen, J. which are only illustrative and not exhaustive of such cases), it is doubtful whether effective action against encroachment is taken by the primary authorities and whether any consistent and systematic supervision is made by the administrative superiors. That is indeed a very unsatisfactory situation for, even a small encroachment would constitute a subtle and surreptitious subversion of the Rule of Law. Under Art.51A(i) of the Constitution, it shall be the Fundamental Duty of every citizen 'to safeguard public property'. That duty cannot be lightly cast away, by putting forward arguments based on humanitarian considerations. That is indeed a very unsatisfactory situation for, even a small encroachment would constitute a subtle and surreptitious subversion of the Rule of Law. Under Art.51A(i) of the Constitution, it shall be the Fundamental Duty of every citizen 'to safeguard public property'. That duty cannot be lightly cast away, by putting forward arguments based on humanitarian considerations. Quite often, such arguments are put forward by persons who would not even tolerate a minor sacrifice as regards their own property; whether it be parting with a copper coin or a spade of soil. Human problems have to be selved by resorting to the process of law, and by urgent processes, when situations do demand the same. Encouraging violation of the law, and condoning such violation motivated by unwholesome, influence would, in the long run, knock off the foundation of Rule of Law itself. An expanding trend of this emerging pattern of encroachment into law, calls for such a warning from the court of law. The idea was expressed forcefully by the Court of Appeal in a recent decision in Francome v. Mirror Newspapers, (1984) 2 All. ER 408. Sir John Donaldson MR. stated: "Parliamentary democracy as we know it is based on the rule of law. That requires all citizens to obey the law, unless and until it can be changed by due process. There are no privileged classes to whom it does not apply." The Master of Rolls also pointed out that if any person would endeavour to justify a breach of law on the basis that it was in public interest, it will enable other citizens also to do likewise; and he cautioned: "............ the result would be anarchy," He continued: "It is sometimes said, .................... that all are free to break the law if they are prepared to pay the penalty. This is pernicious nonsense. The right to disobey the law is not obtainable by the payment of a penalty or licence fee. It is not obtainable at all in a parliamentary democracy, although different considerations arise under a totalitarian regime." All efforts are to be made to promote the Rule of law and thereby conserve the democratic set up in the country. The right to disobey the law is not obtainable by the payment of a penalty or licence fee. It is not obtainable at all in a parliamentary democracy, although different considerations arise under a totalitarian regime." All efforts are to be made to promote the Rule of law and thereby conserve the democratic set up in the country. It is certainly for the Government primarily & essentially, to devise suitable remedial steps to maintain the Rule of Law and Parliamentary democracy by checkmating ; incursions into Public property and invasions of provisions of Law. A copy of the judgment would be forwarded to the Chief Secretary to Government of Kerala, Trivandrum. The writ petition is disposed of as above.