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2013 DIGILAW 851 (KER)

P. Ajaykumar v. State of Kerala

2013-09-30

K.SURENDRA MOHAN

body2013
JUDGMENT K. Surendra Mohan, J. 1. The petitioner, Managing Partner of M/s Kalyan Tourist Home in Palakkad Town complains of unauthorized and high handed acts committed by the 6th respondent who is the Secretary of the Palakkad Municipality. According to the petitioner, on 31.05.2013, the 6th respondent along with some officials and workers came with a Loader Excavator Machine (JCB) to his hotel situate in the heart of Palakkad town, forced their entry into his compound, pulled down the canopy that had been put up in the car park and destroyed the other structures therein, as could be seen from Exhibit P1 photographs. A temporary fencing using pipes has been put up blocking the entry into the petitioner's car park. The gate leading to the petitioner's car park was locked and sealed. The situation remains as such, to this date. It is alleged by the counsel for the petitioner that the Office of the Vigilance and Anti-Corruption Bureau, Palakkad Unit is housed in a building adjacent to the petitioner's hotel. Some officials of the said establishment are not on good terms with the petitioner, for having refused to yield to their unreasonable demands. According to the petitioner, it is under the orders of the said Officials that the illegal acts have been committed. 2. The allegation is that, about three cents of land belonging to the Municipality has been encroached upon and reduced to his possession by the petitioner. According to the petitioner, his property is lying within well demarcated boundaries, enclosed by proper compound walls. Exhibits P4, P5, P6 and P7 documents evidence his title. He has been in absolute ownership and possession of the entire property since 28.05.1926 onwards. Therefore, it is contended that the action of the 6th respondent was without any justification. 3. Even assuming that the petitioner was in possession of poramboke land, the 6th respondent had no authority to take forcible possession thereof. It was incumbent upon the said authority to have complied with the procedure prescribed by Section 376 of the Kerala Municipality Act, 1994 (hereinafter referred to as 'the Act' for short). Therefore, the present wanton acts committed by the 6th respondent are in gross violation of the Law and all canons of fair procedure. Since ingress and egress to the petitioner's parking space was blocked, he has submitted Exhibit P5 representation, on which also no action has been taken. 4. Therefore, the present wanton acts committed by the 6th respondent are in gross violation of the Law and all canons of fair procedure. Since ingress and egress to the petitioner's parking space was blocked, he has submitted Exhibit P5 representation, on which also no action has been taken. 4. Advocate T.C. Suresh Menon appears for respondents 4 to 6. Two separate statements have been filed on behalf of the said respondents. In the statement dated 12.06.2013, what is stated is that, the petitioner had encroached upon Municipal land that was lying contiguous to his property. As per communication issued by the District Survey Superintendent, an extent of 3.53 cents of land comprised in Sy.No.2577/3 of Palakkad Village had been encroached upon by the petitioner. The Additional Tahsildar has reported as per Exhibit R4(b) that action should be taken against the said encroachment. It was in the said circumstances that the encroachment was removed. 5. An additional statement has been filed by respondents 4 and 6 on 06.08.2013 expatiating further, on all the contentions set out in the earlier statement. As per the Basic Tax Records also, the encroachment made by the petitioner has been confirmed. The petitioner had been requested to remove the encroachment. However, he refused to do so. Therefore, the Municipality had to take affirmative action to remove the encroachment. Since Section 376 of the Act empowers the 6th respondent to evict such encroachments, it is contended that the impugned action was perfectly justified, in the circumstances. 6. A counter affidavit has been filed on behalf of respondents 2 and 7 refuting the allegations made against the Vigilance and Anti-Corruption Bureau, Palakkad Unit. The counter affidavit disclaims any role for the said respondents in the impugned action initiated by the 6th respondent. It is pointed out that as per Exhibit R3(b), what the Additional Tahsildar had directed was to initiate action under the Kerala Land Conservancy Act, 1957 (hereinafter referred to as 'the Land Conservancy Act' for short). According to the counter affidavit, as per the order of the Director, Vigilance and Anti Corruption Bureau, a team was constituted for conducting a surprise check of the records in the office of the Palakkad Municipality. Accordingly a team of Gazetted Officers was deputed by the Deputy Director of Survey and Land Records, Palakkad as well as the 6th respondent. One Mr. N.Swami Das, Municipal Engineer Chittur Municipality, and Mr. Accordingly a team of Gazetted Officers was deputed by the Deputy Director of Survey and Land Records, Palakkad as well as the 6th respondent. One Mr. N.Swami Das, Municipal Engineer Chittur Municipality, and Mr. R.Babu, Re-Survey Superintendent, Palakkad were deputed to conduct a surprise check on 18.05.2013. These Officers along with Sri.Feroz M.Shafeek, Inspector of Police, Vigilance and Anti- Corruption Bureau, Palakkad formed a surprise check team and inspected the concerned records maintained in the Office of the Palakkad Municipality and the Office of the District Superintendent of Survey, Palakkad. It is further stated that the surprise check team had verified various other records relating to the property and found that there was encroachment. It was in such circumstances that Exhibit R2(b) communication was addressed to the 6th respondent by the Additional Tahsildar, Palakkad. It is stated that the acts of the 6th respondent were not pursuant to directions issued by the Vigilance Officials. It is also stated that respondents 2 and 7 are not responsible for the acts of the 6th respondent. The 6th respondent's act was on the basis of a resolution of the Municipal Council and not on the directions of the Vigilance Officials. 7. Heard Advocate Thomas Abraham who appears for the petitioner, Advocate T.C.Suresh Menon who appears for the 6th respondent and the learned Government Pleader. 8. It is not in dispute that the entire property in the possession of the petitioner was bounded by compound walls and enclosed by a gate evidencing that the same was in the possession of the petitioner. According to the petitioner, the land has been in his possession from 1926 onwards. The photographs produced as Exhibit P1 show that the entire area was paved with tiles. Canopies had been erected obviously for shielding the vehicles parked there from the sun and rain. From the general appearance of the area as seen from the photographs, the contention that the same was used as a car park appears to be true. One of the photographs shows the Loader Excavator Machine (JCB) pulling down the canopy. The question that arises therefore is whether the acts committed by the 6th respondent and other officials of the Municipality were justified or not. Both the counsel for the petitioner as well as the Municipality places reliance on Section 376 of the Act. 9. Section 376 of the Act is reproduced hereunder for convenience of reference. The question that arises therefore is whether the acts committed by the 6th respondent and other officials of the Municipality were justified or not. Both the counsel for the petitioner as well as the Municipality places reliance on Section 376 of the Act. 9. Section 376 of the Act is reproduced hereunder for convenience of reference. 376.Occupation of poramboke without licence.-- (1) Where any person without the previous sanction of a Municipality occupies any land belonging to it or vested in it or under its control, he shall, from time to time, pay in respect of such occupation such sums by way of penalty as may be demanded by the Municipality, subject to such limits as may be prescribed: Provided that before demanding any sum under this sub-section the Municipality shall give such person an opportunity to show cause against such demand. (2) Where any person makes default in the payment of any such amount the Magistrate having jurisdiction over the Municipal area may, on application by the Secretary, recover the same in the same manner as if it were a fine imposed by the Court. (3)(a) Any person unauthorizedly occupying any land for which he is bound to pay a penalty under sub-section(1) in respect of such occupation, may be summarily evicted by the Secretary and any crops or other product raised on the land shall be liable to forfeiture and any building or structure erected or anything deposited thereon, shall also, if not removed by him after such written notice as the Secretary may deem reasonable, be liable to forfeiture and any property so forfeited shall be disposed of by the Secretary in accordance with such procedure as the Council may direct. (b) Any eviction under this sub section shall be by serving a notice on a person reputed, to be in occupation or his agent, requiring him, within such time as the Secretary may deem reasonable after receipt of the said notice, to vacate the land and if such notice is not obeyed, by removing or deputing a subordinate to remove any person who may refuse to vacate the same and if the officer removing any such person shall be resisted or obstructed by any person, the Secretary may report the fact to the collector and thereupon the Collector shall hold a summary enquiry into the case and if satisfied that the resistance or obstruction still continues, may issue a warrant for the arrest of the said person and on his appearance may send him, with a warrant, in such form as may be prescribed, for imprisonment in the civil jail for such period, not exceeding thirty days as may be necessary to prevent the continuance of such obstruction or resistance: Provided that no person so committed for imprisonment under this Section shall be liable to be prosecuted under Sections 183,186 and 188 of the Indian Penal Code, 1860 (Central Act 45 of 1860) in respect of the same facts. (Emphasis supplied) 10. Sub section (1) confers power on the Municipality to levy penalty on an occupant of Municipal land for such occupation and Sub section (2) confers power on the Secretary to recover such penalty. Sub Section (3) deals with the removal of the encroachment. Sub Section (3)(a) confers power on the Secretary to summarily evict such unauthorized occupants. According to Sri. T.C. Suresh Menon, the counsel for the Municipality, since the 6th respondent is conferred with the power of summary eviction, it was not necessary to serve any notice on the petitioner while invoking the said power. The expression 'may be summarily evicted by the Secretary' presupposes that such act can be initiated without any prior notice. The above understanding of the provision is supported by the fact that issue of a written notice is contemplated in the latter part of the very same provision which stipulates expressly that a written notice should be given where forfeiture of any building or structure or article deposited in such property is effected. The above understanding of the provision is supported by the fact that issue of a written notice is contemplated in the latter part of the very same provision which stipulates expressly that a written notice should be given where forfeiture of any building or structure or article deposited in such property is effected. In view of the manner in which the provision is worded, the absence of a stipulation of prior notice in the first part thereof leads to the irresistible conclusion that no such notice is necessary, it is contended. 11. I am not satisfied that the said contention can be accepted. Though on a casual reading of the provision, the said contention may appear to be plausible, the same cannot be sustained on a closer examination of the provision. 12. The Power under sub section 3(a) is for the eviction of any person (i) unauthorizedly occupying any land (ii) for which he is bound to pay a penality under sub section (1) in respect of such occupation. In the present case, the petitioner is not a person who was unauthorizedly occupying a land for which he was bound to pay penalty under Section 376(1). Nobody has a case that any action was taken against the petitioner under Section 376(1) at any time. It is against such a person that action under sub section 3(a) is contemplated which include removal of his structures and forfeiture thereof. The said provision has no application to the facts of the present case. Therefore, the contention that the action of the Municipality is justified under the said provision is rejected. 13. In this context, it is worth noticing that as per Exhibit R2(b), what the Additional Tahsildar had sought for was, for the 6th respondent to initiate proceedings under the Kerala Land Conservancy Act. Section 11 of the Land Conservancy Act, also stipulates summary eviction of persons who are in unauthorized occupation of poramboke land. 14. Section 11 of the Land Conservancy Act reads as follows:- 11. Liability of unauthorised occupant to summary eviction, forfeiture of crops etc. Section 11 of the Land Conservancy Act, also stipulates summary eviction of persons who are in unauthorized occupation of poramboke land. 14. Section 11 of the Land Conservancy Act reads as follows:- 11. Liability of unauthorised occupant to summary eviction, forfeiture of crops etc. - (1) Any person unauthorisedly occupying any land for which he is liable to pay a fine under Section 7 and an assessment or prohibitory assessment under Section 8 may be summarily evicted by the Collector, and any crop or other product raised on the land shall be liable to forfeiture, and any building or structure erected or anything deposited thereon shall also if not removed by him after such written notice as the Collector may deem reasonable, be liable to forfeiture. Forfeiture under this section shall be adjudged by the Collector and any property so forfeited shall be disposed of as the Collector may direct. (2) Mode of eviction.- An eviction under this section shall be made in the following manner, namely:- By serving a notice on a person reputed to be in occupation or his agent requiring him within such time as the Collector may deem reasonable after receipt of the said notice to vacate the land, and if such notice is not obeyed, by removing or deputing a subordinate to remove any person who may refuse to vacate the same, and if the officer removing any such person shall be resisted or obstructed by any person, the Collector shall hold a summary enquiry into the facts of the case, and if satisfied that the resistance or obstruction still continues, may issue a warrant for the arrest of the said person, and on his appearance may send him with a warrant in the Form of the Schedule for imprisonment in the Civil Jail of the district for such period not exceeding 30 days as may be necessary to prevent the continuance of such obstruction or resistance: Provided that no person so committed or imprisoned under this section shall be liable to be prosecuted under Section 183, 186 and 188 of the Indian Penal Code in respect of the same facts. (3) Notwithstanding anything contained in sub-section (2) where the Collector is of opinion in any case falling under sub-section (1) that it is expedient in the public interest to take urgent action without following the procedure laid down in sub-section (2) he may, after recording his reasons for so doing, issue a notice to the person in occupation calling upon him to vacate the land within such period as may be specified in the notice, and if the land is not vacated within the said period, any officer authorised by the Collector may enter upon the land and take possession of the same, if necessary by using such force as the circumstances may justify. 15. Sub section (2) of the above provision stipulates the procedure to be followed for the summary eviction of a person. The prescribed mode of eviction contemplates service of notice on a person giving him a reasonable opportunity to vacate the premises or to remove the encroachment. Sub Section (3) lays down the procedure to be followed in situations, where in public interest, urgent action is necessary to be initiated. Even the said provision stipulates service of notice on the person in occupation. Therefore, in understanding Section 376 also, what has to be borne in mind is that the eviction that is contemplated can be effected only with due notice to the encroacher. 16. A question had arose before this Court way back in 1982 when the District Collector launched an initiative to remove bunks placed by the sides of the roads within the Cochin Corporation. Some of the bunks were licenced by the Corporation, while the others were not . The owners of the bunks both authorised and unauthorised had approached this Court and in the decision Achuthan v. District Collector, 1982 KLT 133 , this Court held that even if the bunks are unauthorized, at least 14 days notice is necessary. Some of the bunks were licenced by the Corporation, while the others were not . The owners of the bunks both authorised and unauthorised had approached this Court and in the decision Achuthan v. District Collector, 1982 KLT 133 , this Court held that even if the bunks are unauthorized, at least 14 days notice is necessary. The power of the District Collector to summarily evict a person has been conceded in the following words by Chandrasekhara Menon,J. It might be noted here that sub-section (3) of S.11 states that notwithstanding anything contained in sub- section (2) where the Collector is of opinion in any case falling under sub-section (1) that it is expedient in the public interest to take urgent action without following the procedure laid down in sub-section (2) he may, after recording his reasons for so doing, issue a notice to the person in occupation calling upon him to vacate the land within such period as may be specified in the notice and if the land is not vacated within the said period, any officer authorized by the Collector may enter upon the land and take possession of the same, if necessary by using such force as the circumstances may justify. Therefore, the Collector can certainly take action under sub-section(3). 17. But, on the question of issue of notice to the unauthorised occupants of the bunks, it has been held as follows:- In the first of these cases, the Collector should give a reasonable notice to the unauthorized bunk owners to remove the bunks from the places concerned. It will amount to a nuisance and clearly wrong to use the public streets which will include pathway and foot paths as sites for putting up bunks. Reasonable notice, I would say in the circumstances, should be at least 14 days' notice. With such notice Collector can act under S.11(3) of the Kerala Land Conservancy Act. Therefore, the approach of this Court has been insist on prior notice being given, even in the case summary eviction. 18. The above view has been reiterated in later decisions also. Therefore, the impugned action in the present case, without issuing any notice to the petitioner in writing cannot be justified. Of course, the counsel for the Municipality has a contention that the petitioner had been informed orally, which is denied by the counsel for the petitioner. 18. The above view has been reiterated in later decisions also. Therefore, the impugned action in the present case, without issuing any notice to the petitioner in writing cannot be justified. Of course, the counsel for the Municipality has a contention that the petitioner had been informed orally, which is denied by the counsel for the petitioner. In the absence of any material to support the contention that notice was given to the petitioner, it has to be held that the impugned action was without notice and therefore, without any justification. 19. The next question that arises is what is the relief that has to be given to the petitioner. It is clear from the communications Exhibits R2(a) and R2(b) that there was no request to initiate any coercive action against the petitioner. None of the records produced before me indicate that an urgent affirmative action to dispossess the petitioner and to remove the encroachments as effected, was necessary. Therefore, one fails to understand the reason or the provocation for the manner in which the Municipality had swung into action to destroy the petitioner's car park. Nobody has a case that any measurement of the alleged poramboke land or an ascertainment, demarcation or identification thereof was conducted, before the operations were undertaken. What was the basis for the conclusion that the petitioner's car park was the area in which the poramboke land was available, is not clear. The basis on which a portion of the property has been fenced using iron pipes and its gate locked is also not forthcoming. The allegation of the petitioner that some Officials of the Vigilance and Anti- Corruption Bureau are behind the entire operation is another allegation that cannot be dismissed lightly. This is because of the fact that even according to the counter affidavit filed by respondents 2 and 7, a surprise check team had been constituted on the basis of directions issued by the Deputy Superintendent of Police, Vigilance and Anti- Corruption Bureau, Palakkad. What were the circumstances under which the said authority had issued such a direction, is not disclosed. There appears to have been undercurrents that are not visible on the surface. What were the circumstances under which the said authority had issued such a direction, is not disclosed. There appears to have been undercurrents that are not visible on the surface. Such acts of officials who are in power of running riot on the property of a private individual, misusing their official position and powers needs to be curbed, controlled and put down, without which there is no meaning in the safety and security of the citizen. Without doubt, it is clear that there has been an abuse of power in the present case. High handed acts like the present one require serious notice whenever the attention of this Court is drawn to the same. Therefore, it is only appropriate that a sufficiently Senior authority in the Government conducts an enquiry into the entire episode and finds out the real reasons for the action that was initiated. It is also necessary to bring all the persons who are guilty of culpable conduct to the book. 20. The Secretary to Government, Local Self Government Department is the appropriate authority who is competent to conduct such an enquiry. Upon such enquiry, identification and fixation of liability for the high handed acts on the officials who are guilty, it is also necessary for such persons to be proceeded with departmentally for such transgressions. Action to recover the loss caused and to make good the same to the petitioner also has to follow. For the forgoing reasons, this writ petition is allowed as follows: 1. The 6th respondent is directed to remove the seal on the gate as well as the fence and to restore the land that has been taken from the petitioner to his possession, as expeditiously as possible and at any rate within a period of 14 days of receipt of a copy of this judgment. It is made clear that the restoration of possession of the land to the petitioner shall be without prejudice to the rights of the authorities to initiate action for recovery of any poramboke land that may be in the possession of the petitioner, in accordance with law. 2. It is made clear that the restoration of possession of the land to the petitioner shall be without prejudice to the rights of the authorities to initiate action for recovery of any poramboke land that may be in the possession of the petitioner, in accordance with law. 2. The Secretary to Government, Local Self Government Department is directed to conduct an enquiry into the entire episode, to ascertain the circumstances under which the high handed acts were committed on the petitioner and his property, to fix the liability on the guilty persons and to initiate departmental proceedings against them. The Secretary to Government, Local Self Government Department shall also quantify the loss caused to the petitioner and shall pass necessary orders for the recovery of the said loss.