Anil V.A vs Tahsildar And Ors

The petitioner, who is residing near to Tagore Lane situated in S.R.M.Road, has filed this writ petition under Article 226 of the Constitution of India,

seeking a writ of certiorari to quash Ext.P9 order dated 13.11.2020 issued by the 1st respondent Tahsildar (LR). The petitioner has also sought for a

writ of mandamus commanding respondents 1 to 5 to take steps to remove the encroachment in the Government purmaboke situated in R.S.No.37/10

of Ernakulam Village, for the purpose of restoring the way leading to the residences of the petitioner and others.

The petitioner had earlier approached this Court in W.P.(C)No.17651 of 2019 challenging the order dated 10.06.2019 of the Revenue Divisional

Officer, Fort Kochi. That writ petition was disposed of by Ext.P6 judgment dated 18.09.2019. Paragraph 2 and operative portion of the said judgment

read thus;

“2. Apart from the challenge made as above, the petitioner has a case that puramboke land has been encroached by the party respondents and

therefore, the land conservancy proceedings should be initiated. Taking note of the contention, this Court called for a report from the Village Officer.

The Village Officer filed a report stating that there is no puramboke land as claimed by the petitioner between the petitioner's property and the seventh

respondent's property.

If there is any encroachment, the petitioner is free to take up the matter before the Tahsildar. If the petitioner makes any representation before the

Tahsildar, the Tahsildar shall take up the representation to its logical conclusion. If necessary the assistance of the Taluk Surveyor shall be obtained.

Needful shall be done on such representation after hearing the petitioner and the party respondents within a period of four months from the date of

receipt of the representation.â€​

Pursuant to the direction contained in Ext.P6 jdugment, the petitioner submitted Ext.P7 representation dated 30.09.2019 before the 1st respondent

Tahsildar (LR). On receipt of the said representation, the 1st respondent issued Ext.P8 notice dated 16.11.2020 requiring the petitioner and others to

appear for a personal hearing scheduled on 23.11.2020. Even before the issuance of Ext.P8 notice, the 1st respondent, by Ext.P9 order dated

13.11.2020 rejected Ext.P7 representation made by the petitioner. The grievance of the petitioner is that Ext.P9 order is one issued in violation of the

direction contained in Ext.P6 judgment and also in violation of the principles of natural justice.

On 14.12.2020, when this writ petition came up for admission, this Court issued notice before admission to the respondents. The learned

Government Pleader took notice for respondents 1 to 4 and the learned Standing Counsel took notice for the 5th respondent. Urgent notice by speed

post was ordered to respondents 6 and 7.

Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 to 4 and also the learned Standing

Counsel for the 5th respondent Corporation. Despite service of notice, none appears for respondents 6 and 7.

The issue that arises for consideration in this writ petition is as to whether Ext.P9 order dated 13.11.2020 of the 1st respondent can be sustained in

law. 7. The learned counsel for the petitioner would submit that Ext.P9 order is one issued without conducting a personal hearing, contrary to the

direction contained in Ext.P6 judgment.

The learned Senior Government Pleader would submit that the 1st respondent issued Ext.P9 order in view of the contempt proceedings initiated by

the petitioner.

Having considered the submissions made by the learned counsel on both sides, this Court finds that Ext.P9 order issued by the 1st respondent is one

issued in violation of the principles of natural justice, inasmuch as, the petitioner and other affected persons were not afforded with an opportunity of

being heard. On that sole ground, Ext.P9 order cannot be sustained.

In such circumstances, this writ petition is disposed of by setting aside Ext.P9 order dated 13.11.2020 of the 1st respondent and by directing the said

respondent to reconsider the matter and take an appropriate decision, with notice to the petitioner and respondents 6 and 7, strictly in compliance with

the direction contained in Ext.P6 judgment, as expeditiously as possible, at any rate, within a period of six weeks from the date of receipt of a certified

copy of this judgment.