IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933 WP(C).No. 27265 of 2005(U) --------------------------------------- PETITIONER(S): ------------------------ 1. MARTIN, AGED 38 YEARS, S/O.ANTHAPPAN, RESIDING AT POLLAYIL HOUSE, SAUDI, MUDAMVELI MURI RAMESWARAM VILLAGE, COCHIN TALUK. 2. FRANCIS,AGED 33 YEARS, S/O.ANTHAPPAN, RESIDING AT POLLAYIL HOUSE, SAUDI, MUNDAMVELI MURI RAMESWARAM VILLAGE, COCHIN TALUK. BY ADV. SRI.SHAJI P.CHALY RESPONDENT(S): -------------------------- 1. THE COCHIN PORT TRUST, WILLINGTON ISLAND, ERNAKULAM, REPRESENTED BY ITS CHAIRMAN. 2. THE SECRETARY, COCHIN PORT TRUST, ERNAKULAM. 3. THE DEPUTY CONSERVATOR, OFFICE OF THE DEPUTY CONSERVATOR, COCHIN PORT TRUST, ERNAKULAM. *ADDL. R4 IMPLEADED. 4. JOSE ANTONY LIVERO, AGED 41 YEARS, S/O.JOHN ROY LIVERA, RESIDING AT 18/3, NEO COTTAGE, THOPPUMPADI, KOCHI- 5. *ADDL. R4 IS IMPLEADED AS PER ORDER DTD. 29/08/2011 IN IA. 13019/2009. BY SRI.B.S.KRISHNAN, SENIOR ADVOCATE BY ADVS. SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN SRI.P.K.IBRAHIM FOR ADDL R4 SRI.G.SHRIKUMAR, SENIOR ADVOCATE SRI.SHAJI P.CHALY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/09/2011, ALONG WITH WPC NO. 25747 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss WP(C) NO.27265/2005 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE RECEIPT ISSUED BY THE IST RESPONDENT TO THE PETITIONER DTD. 1.10.99. P2:- COPY OF THE RECEIPT ISSUED BY THE IST RESPONDENT TO THE PETITIONER DTD. 15.10.92. P3:- COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DTD. 18.10.99. P4:- COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE IST RESPONDENT DTD. 1.11.01. P5:- COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. P6:- COPY OF THE STAY ORDER DTD. 2.2.05. P7:- COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. P8:- COPY OF THE LETTER ISSUED BY THE RESPONDENT TO THE PETITIONER. P9:- COPY OF THE REPLY ISSUED BY THE PETITIONERS TO EXT.P8 NOTICE DTD. NIL. RESPONDENT'S EXHIBITS R3(a):- COPY OF THE JUDGMENT DTD. 19.7.02 IN OS.154/1993 OF ADDL.MUNSIFF COURT, COCHIN. R4(a):- COPY OF THE NOTICE NO.D/1283/PAM/2009 DTD. 18.6.09 ISSUED BY THE IST RESPONDENT IN THE WRIT PETITION. TRUE COPY P.A. TO JUDGE tss HARUN-UL-RASHID, J. ------------------------ W.P.(C).Nos.27265/2005 & 25747/2009 ---------------------- Dated this the 5th day of September, 2011. J U D G M E N T
The two writ petitions are connected cases and therefore disposed of by a common judgment. W.P.(C).No.27265/2005 is filed for quashing Exts.P3 to P5, P7 and P8 and for a direction commanding the respondents to ascertain the reclaimed land to the petitioners and to regularise the jetty constructed by the petitioners in survey No.515 of Rameswaram Village.
2. Petitioners' case in W.P.(C).No.27265/2005 is that they are in absolute possession and enjoyment of 12 cents of land comprised in survey Nos.1160/2 & 1116 of Rameswaram Village along with 2 cents of land lying in survey No.515, which according to the petitioners, obtained by them as per document No.7/97. It is averred in the writ petition that the petitioners had reclaimed the above said 12 cents of land in the Kayal and had applied to the 1st respondent requesting to issue licence to construct a wooden jetty in that property. It is further averred that after submission of the application for permission the ::2::
W.P.(C).Nos.27265/2005 & 25747/2009 petitioners had constructed a jetty. It is also stated that the respondents had issued letters and directions asking the petitioners to demolish the jetty, that the petitioners have submitted several representations against the directions issued, but, the respondents have not considered such request, that Ext.P7 order and Ext.P8 letter were issued asking the petitioners to demolish the jetty. It is also pointed out that the petitioners have submitted several applications for assignment of the land in their favour, but, the respondents 1 & 2 had rejected the applications.
3. Ext.P3 is the communication issued by the 3rd respondent, Deputy Conservator, Cochin Port Trust, informing the petitioners that their request for construction of a wooden jetty cannot be permitted. Ext.P3 is dated 18.10.1999. Subsequently, Ext.P5 communication was issued by the 3rd respondent to the 2nd respondent, Secretary, Cochin Port Trust dated 7.1.2002. It is stated that the request of the petitioners to assign the 12 cents of land comprised in survey Nos.1160/2 & 1116 of Rameswaram Village is rejected. It is further stated that as the Cochin Port Trust had taken a decision not to allow any more private jetties ::3::
W.P.(C).Nos.27265/2005 & 25747/2009 on Mattanchery site, petitioners' request for construction of a jetty also cannot be considered. Again by Ext.P7 communication dated 9.6.2005, the 3rd respondent informed the petitioners that the construction of the jetty is on the illegally reclaimed land from the bed of the back water under the jurisdiction of the Cochin Port Trust, that the Cochin Port Trust has decided not to licence any more private jetties on the water front of Mattancherry Channel and therefore, petitioners' request could not be processed. In Ext.P7, the Deputy Conservator directed the petitioners to demolish the illegal construction and to restore the bed of the back waters as it existed prior to the illegal reclamation within 15 days of receipt of the letter. Ext.P7 was followed by Ext.P8 letter issued by Cochin Port Trust, addressed to the petitioners, directing the petitioners to demolish the illegal construction and restore the bed of the back waters immediately failing which the Cochin Port Trust will be constrained to take appropriate action to repossess the Port premises, by use of force, if required, at the petitioners' risk, without further notice. Ext.P8 is dated 29.8.2005.
W.P.(C).Nos.27265/2005 & 25747/2009
4. In the counter affidavit filed on behalf of the respondents it is contended inter alia that the petitioners have no right or title over the properties mentioned in the writ petition and that they are not entitled to any relief in the writ petition filed under Article 226 of the Constitution of India, that the petitioners have illegally constructed a jetty in the property belonging to the Cochin Port Trust, that no licence or permission is granted to the petitioners to construct a jetty and that various notices and communications have been issued to the petitioners for the last several years to remove all illegal structures and reclamations. In spite of Exts.P3 to P5, P7 & P8 and other notices, the petitioners are illegally retaining the structures in the illegally reclaimed land and that the remittance of application fee as evidenced by Exts.P1 & P2 will not confer any right or title on the petitioners. The respondents in their counter affidavit stated further that the petitioners are directed to remove the illegal structure put up in the Cochin Port Trust land and that they have no right to construct a jetty without permission and without obtaining licence from the Port Trust. It is also stated in the counter affidavit that one john Roy Levero, who is the father of ::5::
W.P.(C).Nos.27265/2005 & 25747/2009 the additional 4th respondent filed a suit against the petitioners for mandatory and prohibitory injunction before the Additional Munsiff Court, Kochi, that the subject matter of the suit is the property now claimed to be in the possession and occupation of the petitioners, that a decree was passed in the said suit, O.S.No.154/1993, on 19.7.2002, granting mandatory injunction for removing the unauthorised construction of 'B' schedule shed and 'C' schedule boat from 'A' schedule property and issued a permanent prohibitory injunction prohibiting the present petitioners, who are the defendants in the suit, from putting up any sort of construction in plaint 'A' schedule property putting any boat or any sort of vehicle in the property and from trespassing into plaint 'A' schedule property doing any act causing obstruction and inconvenience to the plaintiffs' peaceful enjoyment of plaint schedule property in any manner. The appeal preferred before the first appellate court was also dismissed. The second appeal preferred against the dismissal of the first appeal is pending consideration before this Court. The judgment in O.S.No.154/1993 is produced as Ext.R3(a). The respondents also denied the allegation that the petitioners are in ::6::
W.P.(C).Nos.27265/2005 & 25747/2009 absolute possession and occupation of the land for the past more than 15 years. It is stated that the civil court had occasion to consider the claim of the petitioners in O.S.No.154/1993 and that the civil court had passed a decree of mandatory as well as prohibitory injunction against the present petitioners.
5. Petitioners have no case that they have obtained permission to erect a jetty nor obtained any licence to run a private jetty. Even the averments in the writ petition show that the petitioners have not obtained any right over the property or obtained any licence to construct a jetty. The authority concerned is the Cochin Port Trust. They have stated in their counter unambiguously that they have no intention to assign the land nor to grant permission to erect a jetty. So, whatever construction made in the property belonging to the Cochin Port Trust is unauthorised and unlawful. In all the communications referred earlier, the Cochin Port Trust directed the petitioners to remove the unauthorised construction and to restore the property to its original position. Having made the stand clear, the petitioners have no right to continue to retain the structure and other illegal activities in the property belonging to Cochin Port ::7::
W.P.(C).Nos.27265/2005 & 25747/2009 Trust. Petitioners have been resisting the steps taken by the Cochin Port Trust for evicting the petitioners for the last several years. There is no justification for the petitioners to continue to retain the structures and remain in the property any more. Petitioners have not made out any case for interference by this Court. The writ petition is devoid of any merit and therefore liable to be dismissed. Therefore, the Cochin Port Trust is entitled to evict the petitioners by following the procedure prescribed under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. In view of the fact that notices dated 18.6.2009 & 29.6.2009 marked as Exts.P9 7 P11 in W.P.(C). No.25747/2009, no further notice under the said Act is necessary.
6. The connected writ petition, W.P.(C).No.25747/2009 is filed by the impleaded additional 4th respondent in W.P(C). No.27265/2005 as petitioner against the petitioners in W.P(C). No.27265/2005 and Cochin Port Trust. W.P.(C).No.25747/2009 is filed seeking a direction commanding the 1st respondent to enforce Exts.P9 & P11 and in the event of respondents not demolishing the illegal construction in the reclaimed land of the ::8::
W.P.(C).Nos.27265/2005 & 25747/2009 petitioner's father John Roy Livero in survey No.515 of Rameswaram Village direct the petitioners to demolish the same and recover the cost from respondents 3 & 4 and for other incidental reliefs. Exts.P9 & P11 are recent two notices issued by the Cochin Port Trust dated 18.6.2009 and 29.6.2009 respectively, directing the petitioners in W.P.(C).No.27265/2005 to demolish the illegal construction and restore the bed of backwaters as it was existed prior to illegal reclamation within 15 days. In view of the dismissal of W.P.(C).No.27265/2005 and the directions issued, no further orders are necessary in W.P.(C). No.25747/2009.
Accordingly, W.P.(C).No.27265/2005 is dismissed and W.P. (C).No.25474/2009 is disposed of without prejudice to the right of the petitioner to move afresh, if circumstances warrant.