IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
WP(C) NO. 27338 OF 2020
PETITIONER:
JETSY JOSEPH C.
AGED 36 YEARS
W/O. JISHU JOSE, KUDIYIRPPIL HOUSE,
MATTOOR VILLAGE, MAROTTICHODU, KALADY P.O.,
ERNAKULAM-683574.
BY ADVS.C.G.PREETHA
SRI.JIJO JOSEPH
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF PUBLIC WORKS, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 ASSISTANT ENGINEER,
IDAMALAYAR IRRIGATION PROJECT DIVISION,
DIVISION OFFICE NO.1, ANGAMALY, ERNAKULAM-683572.
3 KALADY GRAMA PANCHAYAT,
KALADY P.O., REPRESENTED BY THE SECRETARY,
ERNAKULAM-683574.
4 VILLAGE OFFICER,
MATTOOR VILLAGE OFFICE, KALADY P.O.,
ERNAKULAM-683574.
5 MARY PAULSON,
W/O. KOTTACKA PAULSON, KOTTACKA HOUSE,
MATTOOR VILLAGE, MAROTTICHODU, KALADY P.O.,
ERNAKULAM-683574.
BY ADVS.SMT.DEEPA NARAYANAN, SR.GOVERNMENT PLEADER
SRI.DINESH MATHEW J.MURIKAN, SC, GRAMA PANCHAYAT
SRI.V.M.SAJAN
SRI.C.P.SAJI
SRI.WILSON URMESE, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 07.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C).No.27338/2020
2
P.V.KUNHIKRISHNAN, J.
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W.P.(C).No.27338 of 2020
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Dated this the 07th day of July, 2022
JUDGMENT
This writ petition is filed with following prayers:
i. Issue a writ of mandamus, or any other writ, order or direction commanding the respondent 2 to 4 to consider and take action on Exhibit P1 and Exhibit P2 in accordance with law and within such time frame that this Hon'ble Court deems fit and proper. ii. To direct the respondents 2 to 4 to take a decision in accordance with law on irrigation canal road construction issue after conducting a survey of the Idamalayar irrigation canal road where it passes through Block No.27 Ward No.1 (Re-Sy. No.153/7 of Mattoor village) of the Kalady Grama Panchayath. iii. Issue any other writ, order or direction that this Hon'ble Court deems fit and proper in the facts and circumstances of the case; and to allow this Writ Petition, in the interest of justice.
(SIC) W.P.(C).No.27338/2020 3
2. The main grievance of the petitioner is that there is inaction on Exts.P1 and P2 complaints by the authorities. It is the case of the petitioner that there is illegal obstruction and encroachment on the Irrigation Canal Road and its adjoining Government puramboke land.
3. Heard the learned counsel for the petitioner and the learned Government Pleader.
4. When this writ petition came up for consideration on 28.07.2021, this Court passed the following order:
"I.A. No.2 of 2021 The prayer in the petition is to direct the 3 rd respondent to take action against the 5 th respondent for violation of the direction issued as per Ext.P6 in terms of Section 235 X of the Kerala Panchayat Raj Act, 1994 and restrain the 5th respondent from proceeding with the construction of compound wall pending final disposal of the writ petition.
It is seen that the 3rd respondent as on 03.12.2020 directed the 5th respondent to stop all construction activities and it is also seen from Ext.P6 notice dated 27.01.2021 issued by the Kalady Grama Panchayat that the Panchayat had directed the 5th respondent to stop all W.P.(C).No.27338/2020 4 construction activities.
In the above circumstances, there will be a direction to the respondents 2 and 3 to enforce the stop memos already issued by them, unless the same have been varied in a manner given to them."
5. Today, when this writ petition came up for consideration, the learned counsel for the petitioner takes me through the report filed by the 2 nd respondent. It will be better to extract the report:
"The land specified in the complaint belongs between Ch.0/075 and 0/100km of Chengamanad Branch canal near Marottichode. As per Exhibit P1 application, Smt. Mary Paulson is alleged to have encroached into canal puramboke land and proceeding with construction of compound wall.
The petitioner has alleged that the work of construction of compound is being done in conjunction with work of canal bund road. The work of retarring and laying of paver block between ch. 0/000km and 0/336 km of right bund of Chengamanad branch canal near Marottichode junction is in progress by Kalady Grama Panchayath. The No Objection Certificate for the work of bund road has been issued vide order No. D7-2389/19 dated 05/12/2019 of the W.P.(C).No.27338/2020 5 Executive Engineer, Idamalayar Irrigation Project Division No.Il Chalakudy. It is submitted that no work is being executed by this department in that area. It is seen that excavation has been done for compound wall by Smt. Mary Paulson, and rubble dumped in the disputed place for construction. The petitioner claimed that excavation for compound wall is done in irrigation property. The encroachment can be ascertained only after carrying out survey by Revenue Authorities. Soon on receipt of Exhibit P1 application, the 2nd respondent has taken necessary steps by addressing the Revenue authority to ascertain the encroachment if any as alleged by the petitioner.
Soon after ascertaining the encroachment or boundary of the Irrigation Land, necessary action will be taken to evict the encroachment if any. Notice has been issued to Smt. Mary Paulson to stop the work until the boundary has been fixed by the Revenue Authorities.
As per Land Conservation Act 1957, the Assistant Executive Engineer is responsible for eviction of encroachment. The Assistant Executive Engineer has assured that she would take immediate steps to evict encroachment if any, as per Rules upon W.P.(C).No.27338/2020 6 completing survey by Revenue Authorities."
6. In the light of the same, it is clear that the 2 nd respondent is taking steps to do the needful. Recording the above report, this writ petition can be disposed of. There can be a time limit also to complete the work.
Therefore, this writ petition is disposed of recording the report submitted by the 2nd respondent and directing the 2nd respondent and other officers to complete the entire survey and to remove the encroachers, as expeditiously as possible, at any rate, within six months from the date of receipt of a copy of this judgment. The interim order dated 28.07.2021 will continue till a final decision is taken by the 2nd respondent.
sd/-
P.V.KUNHIKRISHNAN JV JUDGE W.P.(C).No.27338/2020 7 APPENDIX OF WP(C) 27338/2020 PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE COMPLAINT DATED 02/02/2020 SUBMITTED BY PETITIONER ALONG WITH THE RECEIPT ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P2 THE TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER ALONG WITH RECEIPT ISSUED FROM THE KALADY POLICE STATION DATED 02/12/2020.
EXHIBIT P3 THE TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT DATED 2.12.2020 ISSUED BY THE 3RD RESPONDENT EXHIBIT P4 THE TRUE COPY OF THE COMPLAINT DATED 10.12.2020 ALONG WITH THE ACKNOWLEDGMENT RECEIPT DATED 14.12.2020 ISSUED BY THE 3RD RESPONDENT EXHIBIT P5 COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT AND ADDRESSED TO THE 5TH RESPONDENT DATED 03.12.2020 EXHIBIT P6 COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT AND ADDRESSED TO THE 5TH RESPONDENT DATED 27.01.2021 EXHIBIT P7 COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ALONG WITH THE ACKNOWLEDGMENT RECEIPT DATED 01.03.2021