K.S. Radhakrishnan
1. Petitioner is stated to be residing in House No.207 in Ward No.XI of Chavakkad Municipality. His house comes within Re.Sy.No.289/2 of Manathala Village. According to the petitioner, land measuring about 2 acres in Re.Sy.No.289/2 in Manathala Village was taken on oral lease from one George. In the year 1973 petitioner constructed a new concrete house and compound wall around the two acres of land in his possession with the permission of the Chavakkad Panchayat. According to the petitioner, he spent about Rs. 10 lakhs for construction of the house. Petitioner also says that he is paying property tax to the Chavakkad Panchayat and later Chavakkad Municipality from 1977-1998. Petitioner stated that on 29-7-1999 fourth respondent came to the petitioner''s residence and directed him to vacate from the building after clearing all constructions and hand over possession of the premises to the second respondent on or before 2-8-1999. Petitioner then approached the office of the Tahsildar. However, petitioner was informed that if the petitioner was not vacating the premises, he would be forcibly evicted. Petitioner has now approached this court seeking a declaration that he has got absolute right over the property in question and also for a direction to the respondents not to evict the petitioner without following the provisions of law. A verified statement has been filed by standing counsel for Guruvayur Devaswom on 6-8-1999. According to counsel, property is fully owned by the Guruvayur Devaswom and petitioner encroached upon the Devaswom land and constructed a terraced building. According to counsel, as per the decision of this court in
2. I heard counsel for the petitioner Sri. P.N.K. Achan as well as Sri.K. Radhakrishnan. When the matter came up for hearing, I directed the standing counsel for the Guruvayur Devaswom to ascertain as to whether before taking action under Sec.28 of the Guruvayur Devaswom Act, encroacher was given any notice. Counsel for the Guruvayur Devaswom filed an additional statement dated 12-8-1999. It is evident from Annexures 7 and 8 that no notice was given to the petitioner before taking steps under Sec.28 of the Act. Counsel for the 2nd respondent submitted that no notice is contemplated under Sec.28 of the Act, and therefore encroacher is bound to vacate the premises, failing which the revenue authorities have got the power to evict him by force.
3. I am of the view this contention cannot be accepted. In this connection it is relevant to refer to Sec.28 of the Act, which is extracted below:
28. Committee to be in possession of Devaswom Properties:-- (1) The Committee shall be entitled to take and be in possession of all movable and immovable properties including jewelleries, records, documents and other assets belonging to the Devaswom.
(2) If in obtaining such possession, the committee or any person authorised in this behalf by the Committee, or the Administrator, is resisted or obstructed by anyone, the Committee or the Administrator, as the case may be, may make a requisition in the prescribed form to the Collector of the district in which any such property is situate to deliver possession thereof to the Committee or the Administrator, as the case may be.
(3) Where a requisition is made to the Collector under sub-section (2) the Collector shall hold a summary inquiry, into the facts of the case and, if satisfied that the resistance or obstruction was without any just cause, shall comply with the said requisition; and in exercising the powers under this section, the Collector may use such force as may be necessary.
(4) Every person authorised by the Committee or acting under its instructions in pursuance of this section or the Administrator shall be deemed to be a public servant within the meaning of Sec.21 of the Indian Penal Code (Central Act 45 of 1860).
(5) Nothing contained in this section shall bar the institution of a suit by any person aggrieved by an order made thereunder for establishing his title to the property.
4. As per Sec.28 Committee can make a requisition in the prescribed form, if the Devaswom property has been encroached upon by third parties. When requisition is made, Collector has to hold a summary enquiry and if he is satisfied that the resistance or obstruction was without any just cause, Collector shall comply with the requisition. Counsel for the second respondent submitted that Collector is empowered only to hold a summary enquiry, which does not precede any notice. Counsel for the petitioner submitted that notice is a pre-requisite since the action causes civil consequences, as far as the petitioner is concerned.
5. I am of the view that even though no notice as such is not contemplated under Sec.28 of the Act, principles of natural justice have to be complied with. A minimum requirement of at least a notice should be read into the statute. It is a case where petitioner has been in possession of the property for a number of years. He has constructed a building. Collector cannot, on a fine morning, with police force, evict the petitioner. This is not what is contemplated under Sec.28 of the Act. Issue of notice and an opportunity of being heard to the petitioner should be read into the Section when action of the authorities causes civil consequences. It is admitted that no notice was given to the petitioner before taking steps under Sec.28 of the Act. In the said circumstances I am of the view that any action taken by respondents under Sec.28 of the Act without issuing notice to the petitioner is illegal and it is so declared. It is made clear if Devaswom or the District Collector is taking any action under Sec.28 of the Act, they should issue notice to the petitioner and he should be heard also.
Original Petition is allowed as above.
