Chithumma Kunjumuhammed vs The District Collector and Others

J. Chelameswar, C.J.—Aggrieved by judgment dated 10th August, 2010 in W.P. (C) No. 24844 of 2010, the unsuccessful petitioner therein preferred the instant writ appeal.

The appellant herein filed the abovementioned writ petition praying in substance that the 6th respondent in the writ petition be evicted from a particular piece of land which according to the appellant is a government puramboke land.

The case of the appellant is that the property in dispute came to be occupied by the 6th respondent and the 6th respondent is making some construction in the said property which if accomplished would adversely affect the appearance of the appellant''s property.

By the judgment under appeal, a learned Judge of this Court held that the grievance such as the one made by the appellant is a grievance in the nature of espousing public interest and therefore dismissed the writ petition without prejudice to the right of the appellant to file a public interest litigation. Hence the present appeal.

We, while agreeing with the conclusion reached by the learned Judge that the writ petition is liable to be dismissed, do not agree with the reason given by the learned Judge that the grievance is in the nature of a public interest. The grievance of the writ petitioner is purely private without any enforceable legal right. The fact that the construction of the 6th respondent is likely to affect the building of the appellant in our opinion does not entitle the appellant for any remedy known to private law, at any rate nothing is brought to our notice. That being the state of affairs, the appellant seeks to project her private grievance by purporting to espouse a public interest on the ground that u/s 5 of the Kerala Land Conservancy Act, 1957 encroachment of government property is not permissible and therefore the official respondents are under an obligation to evict the 6th respondent.

Section 5 of the Kerala Land Conservancy Act does not create an absolute embargo on the occupation of government land. It only declares that occupation without prior approval of the Government is not permissible. In other words, the occupation per se is not prohibited. In the circumstances, whether to evict an encroacher from a government land or not is a matter to be decided by the Government depending upon the nature of the circumstances.

This Court in exercise of the jurisdiction under Article 226 of the Constitution of India cannot compel the State to evict an encroacher at the instance of a person whose fancied private rights are affected.

We see no merit in the appeal. The writ appeal is dismissed at the admission stage.