High Court of KeralaWP(C)/34671/2015disposed of

Konstontayyan @ Baiju v. State Of Kerala

2015-11-27Honourable Mr. Justice A.Muhamed Mustaque5 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE FRIDAY, THE 27TH DAY OF NOVEMBER 2015/6TH AGRAHAYANA, 1937 WP(C).No. 34671 of 2015 (H) ---------------------------------------- PETITIONER(S):

----------------------- KONSTONTAYYAN @ BAIJU, 1172, THOPPIL, KOLLAM, PRESENTLY RESIDING AT JOSMI BHAVAN, PADAPPAKARA P.O., MULAVANA VIA, KOLLAM - 691 503.

BY ADV. SRI.P.SIVARAJ RESPONDENT(S):

-------------------------

1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, STATE SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

2. KOLLAM CORPORATION, REP. BY ITS SECRETARY, KOLLAM - 690 001.

* ADDITIONAL R3 IMPLEADED

3. S.SAHASRANAMAN, S/O.SIVANANDHAN, AGED 64 YEARS, RESIDING AT 'LAL AND RAJESH BHAVANAM', 120, NAKSHATHRA NAGAR, CHAMPAKULAM, KALLUMTHAZHAM P.O., KILIVALLUR, KOLLAM - 691 004.

* IS IMPLEADED AS PER ORDER DTD.27.11.2015 IN IA.17218/2015. * ADDITIONAL R4 IMPLEADED

4. SMT.AJITHAKUMARI, W/O.BALACHANDRAN, SALINIMANDIRAM, KILIKOLLUR VILLAGE, KOLLAM.

* IS IMPLEADED AS PER ORDER DTD.27.11.2015 IN IA.17277/2015. R1 BY GOVERNMENT PLEADER SRI.MANOJ KUNJACHAN R2 BY ADV. SRI.M.K.CHANDRA MOHAN DAS,SC,KOLLAM MPT R3 BY ADV. SRI.L.RAJESH NARAYAN R4 BY ADV. SRI.T.R.RAJAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-11-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: msv/

WP(C).No. 34671 of 2015 (H) --------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- P1 - TRUE COPY OF THE NOTICE DT. 08.09.2015 OF THE 2ND RESPONDENT. P2 - TRUE COPY OF THE NOTICE DT. 23.09.2015 OF THE 2ND RESPONDENT. P3 - TRUE COPY OF THE RECEIPT DT. 30.09.2015 OF THE 2ND RESPONDENT GIVEN TO THE PETITIONER ACKNOWLEDGING THE RECEIPT OF REPLY NOTICE. EXT.P4: TRUE COPY OF THE APPLICATION FOR ASSIGNMENT OF LAND SUBMITTED BY THE PETITIONER ALONG WITH HIS WIFE DTD.23.11.2015 BEFORE THE DISTRICT COLLECTOR, KOLLAM.

EXT.P4(a): TRUE COPY OF THE RECEIPT ACKNOWLEDGING THE RECEIPT OF EXT.P4. RESPONDENT(S)' EXHIBITS:

----------------------------------------- EXT.R3(a): TRUE COPY OF THE SPOT MAHAZZER DTD.16.11.2015. IA.NO.17218/2015 IN WP(C) NO.34671/2015 EXT.R3(a): TRUE COPY OF THE ORDER DTD.25.3.2013 ISSUED BY THE ADDITIONAL TAHSILDAR, KOLLAM.

EXT.R3(b): TRUE COPY OF THE ORDER DTD.10.11.2014 OF THE HONOURABLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS IN ORIGINAL PETITION NO.1094/2014.

EXT.R3(c): TRUE COPY OF THE INTERIM ORDER DTD.25.5.2015. EXT.R3(d): TRUE COPY OF THE REQUEST DTD.17.7.2015 BEFORE THE 1ST RESPONDENT.

//TRUE COPY// P.A.TO JUDGE.

Msv/

A. MUHAMED MUSTAQUE, J ------------------------------------------------------- ------------------------------------------------------ Dated this the 27th day of November, 2015

JUDGMENT

The petitioner has approached this Court challenging Ext.P2 notice issued by the Secretary-Municipal Corporation, Kollam. By Ext.P2, the petitioner has been directed to remove the illegal encroachment of footpath in 45th Division of the Kollam Municipal Corporation near St.Joseph Convent-The District Hospital.

2. The petitioner's case is that he is in possession of this place for a long period and he cannot be evicted.

3. The order was issued on 23/09/2015. It is to be noted that the writ petition was filed before this Court in W.P.(C).No.23033/2015 by one Sahasranaman alleging illegal encroachment of footpath. This Court directed the

-2Municipal Corporation to hear the petitioner as well as Sahsranaman, in the complaint raised by Sri. Sahasranaman. The petitioner received notice, produced as Ext.P1 for hearing, thereafter, the petitioner has been directed to remove the encroachment as per Ext.P2 on being satisfied with the objection raised by the petitioner is untenable. The petitioner did not implead Sri. Sahsranaman in the writ petition in spite of reference has been made in Ext.P2 notice. The aforesaid Sahsranaman as well as another person namely Smt. Ajitha Kumari got impleaded by separate applications.

4. It is submitted by the learned counsel for the impleaded respondent as well as counsel for the Corporation that the petitioner has been evicted on 16/11/2015 before the status quo order passed by this Court on 17/11/2015. Smt. Ajitha Kumari has also produced Mahazar as R3(a) to show that the eviction has been completed.

5. The learned counsel for the petitioner would submit that the petitioner has preferred an application for

-3assignment of land vide Ext.P4.

Ext.P4(a) is the acknowledgment. Therefore, he shall be permitted to continue in the same place. It is to be noted that the application for assignment of land has been acknowledged only on 23/11/2015.

Considering the facts and circumstances, the writ petition is disposed of with the following directions : i) Status quo as on 16/11/2015 shall be maintained.

ii) The application for assignment of land preferred by the petitioner, shall be considered by the District Collector, Kollam, in accordance with law, within three months after giving notice to the petitioner as therein.

Sd/- A. MUHAMED MUSTAQUE JUDGE bpr