Kerala High Court
V.M.Kaladharan vs State Of Kerala on 1 February, 2021
WP(C).No.5756 OF 2017(S) -1-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942
WP(C).No.5756 OF 2017(S)
PETITIONER/S:
V.M.KALADHARAN
AGED 56 YEARS
POKKALAYIL HOUSE, AVALUKUNNU P.O, ALAPPUZHA.
BY ADVS.
SMT.P.F.ROSY
SRI.PHILIP.N.JOSEPH
SRI.V.M.SYAM KUMAR
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM - 695001.
2 DISTRICT COLLECTOR
COLLECTORATE, ALAPUZHA DIST. PIN - 688 001.
3 ARYAD GRAMA PANCHAYATH
KOMALAPURAM, AVALUKUNNU PO, ALAPUZHA DIST. PIN -
688 006REPRESENTED BY ITS SECRETARY.
4 MANNANCHERRY GRAMA PANCHAYATH
MANNANCHERRY PO, ALAPUZHA DIST. PIN - 688 538
REPRESENTED BY ITS SECRETARY.
5 TALUK SURVEYOR
AMBALAPUZHA TALUK, ALAPUZHA DIST PIN - 688 561.
6 THAHASILDAR
AMBALAPUZHA TALUK, ALAPUZHA DIST. PIN - 688 561.
7 VILLAGE OFFICER
KOMALAPURAM VILLAGE, ALAPUZHA DIST PIN - 688 006.
WP(C).No.5756 OF 2017(S) -2-
8 ASSISTANT EXECUTIVE ENGINEER LSGD (PW)
ARYAD BLOCK PANCHAYATH, KALAVOOR, ALAPUZHA DIST PIN
- 688 522.
9 THE SCRETARY TO THE GOVERNMENT,
IRRIGATION DEPARTMENT,GOVERNMENT OF KERALA IS SUO
MOTO IMPLEADEDD AS ADDITIONAL R9 AS PER ORDER DATED
5/1/21 IN WPC 5756 OF 2017
R1, R2, R5 TO R9 BY
SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENER
R3 BY ADV. SRI.BRIJESH MOHAN
R3 BY ADV. SRI.R.RAJPRADEEP
R4 BY ADV. SMT.DRISHYA K.PRAKASH
R4 BY ADV. SRI.V.K.BALACHANDRAN
R1, R2, R5 TO R9 BY ADV. M.R SABU,SPECIAL GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-
02-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.5756 OF 2017(S) -3-
JUDGMENT
Dated this the 1st day of February, 2021
S. Manikumar, C. J.
On 05.01.2021, we passed the following orders:-
"Petitioner, resident of Aryad Grama Panchayat,
Alappuzha district has filed the instant Public Interest Litigation
for a mandamus directing respondents 2 to 8 to take steps to
ensure that the illegal filling, earthing and all encroachments
made onto the Madayam Thodu from both banks are removed
and to restore the said Thodu back to the same physical position,
as reflected in the revenue records maintained in the Village
Office. He has also prayed for a mandamus directing respondents
to take time bound steps to ensure that no encroachments are
made into Madayam Thodu and that the water flow through the
same is not interrupted. According to him, the said water channel,
which at one point of time was a pivotal means for transportation
of men and material using country boats and into which the
rainwater that accumulate during rainy season in the adjacent
areas drained thus preventing water logging, has been rampantly
encroached with the tacit connivance and concurrence of the
respondent Panchayats. The District Collector as well as the
revenue administration machinery in the district including the
Tahasildar, and the Village officer are hand in glove with the
encroachers and are supporting them through their wanton
inaction. Due to the same, the width of the Madayam Thodu has
been substantially reduced causing it to become a slender stream
of filthy and dirty water. Every year with the onset of monsoon,
substantial water logging is experienced along the both sides of
Madayam Thodu, leading to contagious diseases and practically
making the life of the local populace a misery. The same will
recur this year also since encroachments are even now under
way.
2. Supporting the prayers sought for, petitioner has
contended that originally Madayam Thodu had a width of around
69.2 meters in certain portions and due to rampant encroachment
from both sides, more than 40 acres of the said water channel has
been reduced to private lands and houses, roads and other
structures.
3. According to him, despite representations submitted to
concerned, no action has been taken and hence the instant writ
petition is filed for the reliefs stated supra. Supporting the prayers
sought for, several documents and photographs have been
enclosed.
4. Though Aryad Grama Panchayat and Mannancherry
Grama Panchayat, represented by their Secretaries, have been
arrayed as respondents 3 and 4 respectively, no counter affidavit
has been filed disputing the averments made in the writ petition.
5. Statement filed by the District Collector, Alappuzha, 2nd
respondent makes it clear that there are encroachments by private
persons and due to construction of roads at certain portion of
Thodu by the respective Grama Panchayats, the width of the
Thodu has been considerably reduced. However, referring to
Section 218 of the Kerala Panchayat Raj Act, 1994, District
Collector, Alappuzha has stated that the respondents 3 and 4
stated supra are the authorities vested with the power to remove
the encroachments made in the Madayam Thodu.
6. Statement filed on behalf of the District Collector
further reads that though it may not be possible to restore the
Thodu to its original position as given in the re-survey records
prepared years ago, respondents 3 and 4 have to take a decision
as to the minimum width of the Thodu to be restored, so as to
enable free flow of water from the Thodu and if such a decision
is taken by the Panchayat authorities, necessary assistance will be
provided by the revenue authorities to ensure the eviction of
encroachments made by individuals on Madayam Thodu. District
Collector, Alappuzha has also stated that as per G. O. (P) No.
191/2016/RD dated 01.03.2016, the Secretaries of the Grama
Panchayats and Municipalities are authorized to exercise all the
powers conferred on a Collector, under the Kerala Land
Conservancy Act, 1957, except the power of hearing appeals and
revision under Section 16 of the Act. G. O. (P) No. 191/2016/RD
dated 01.03.2016 reads thus:-
"GOVERNMENT OF KERALA
Revenue (U) Department
NOTIFICATON
G. O. (P) No. 191/2016/RD
Dated, Thiruvananthapuram, 1st March, 2016
17th Kumbham, 1191
S.R.O. No. 204/2016.-- In exercise of the powers
conferred by section 15 of the Kerala Land
Conservancy Act, 1957 (8 of 1958), the Government of
Kerala hereby authorise all the Secretaries of Grama
Panchayat and Municipalities, to exercise by virtue of
their office all the powers conferred on a Collector
under the said Act within their respective jurisdiction,
except the power of hearing appeals and revision under
section 16 of the said Act.
By order of the Governor,
Dr. Vishwas Mehta,
Principal Secretary to Government."
Ultimately the District Collector, Alappuzha has stated
thus:-
"If this Hon'ble Court direct the revenue
authorities to take required steps for carrying out
eviction of encroachments for restoring the thodu to its
original position, the revenue authorities are ready and
willing to survey the property to find out the exact
encorachments made on to the Madayam Thodu by
deputing the survey team, provided the Panchayats are
extending their full help and assistance for evicting the
encroachments."
7. Section 218 of the Kerala Panchayat Raj Act deals with
vesting of water course, springs, reservoirs, etc. in Village
Panchayats, which reads thus:-
"(1) Notwithstanding anything contained in the
Kerala Land Conservancy Act, 1957 (8 of 1958) or in
any other law for the time being in force, all public
water courses (other than rivers passing through more
areas, than the panchayat area which the Government
may, by notification in the Gazette, specify), the beds
and banks of rivers, streams, irrigation and drainage
channels, canals, lakes, back waters and water courses
and all standing and flowing water, springs, reservoirs,
tanks, cisterns, fountain, wells, kappus, chals, stand
pipes and other water works including those used by
the public such an extent as to give a prescriptive right
to their use whether existing at the commencement of
this Act or afterwards made, laid or erected and
whether made, laid or erected at the cost of the
panchayat or otherwise, and also any adjacent land, not
being private property appertaining thereto shall stand
transferred to, and vest absolutely in the Village
Panchayat:
Provided that nothing contained in this sub-
section shall apply to any work which is, or is
connected with, a work or irrigation or to any adjacent
land appertaining to any such work.
(2) Subject to the provisions of this Act, all
rights and liabilities of the Government in relation to
the water courses, springs, reservoirs, tanks, cisterns,
fountains, wells, kappus, chals, stand pipes and other
water works vested in the Village Panchayat under sub
section (1) shall from the date of such vesting, be the
rights and liabilities of the Village Panchayat.
(3) Notwithstanding anything contained in sub-
section (1) or sub-section (2), the Government may, by
notification in the Gazette, assume the administration
of any public source of water supply and public land
adjacent and appertaining thereto after consulting the
Village Panchayat and giving due regard to its
objection, if any.
(4) It shall not be lawful for any person to
remove or appropriate for himself, any tree, earth,
sand, metal, laterite, limeshell or such other articles of
value as may be notified by the Village Panchayat from
any land which is transferred to or vested in the Village
Panchayat, under this Act, whether a poramboke or not,
except under and in accordance with the terms and
conditions of a permit issued by the Village Panchayat
in this behalf and on payment of such fees and
compensation at the rate determined, by the Village
Panchayat."
8. Section 3 of the Kerala Land Conservancy Act, 1957
defines property of he Government and the same is extracted
hereunder:-
"(1) All public roads, streets, lanes and paths, the
bridges, ditches, dykes and fences on or beside the
same the bed of the sea and of harbours and creeks
below high water mark, the beds and banks of rivers,
streams, irrigation and drainage channels, canals, tanks,
lakes, backwaters and water courses, and all standing
and flowing water, and all lands wheresoever situated,
save in so far as the same are the property of-
(a) [Jenmies, Wargdars] or holders of Inams; or
(b) [persons registered in the revenue records as]
holders of lands in any way subject to the payment of
land revenue to the Government; or
(c) any other registered holder of land in proprietary
rights; or
(d) any person holding land under grant from the
Government otherwise than by way of a [lease or
licence]; or
(e) any person claiming through or holding under any
of the persons referred to in Clauses
(a), (b), (c) or (d), are, and are hereby declared to
be, the property of Government, except as may be
otherwise provided by any law for the time being in
force, subject to all rights of way and other public
rights and to the natural and easement rights of other
land owners and to all customary rights legally
subsisting."
9. Section 5 of the Kerala Land Conservancy Act, 1957
states that land which is the property of Government not to be
occupied without permission. Section 7 of the Kerala Land
Conservancy Act, 1957 deals with punishment for unauthorisedly
occupying land which is the property of the Government. Section
11 of the Kerala Land Conservancy Act, 1957 speaks about the
liability of unauthorised occupant to summary eviction, forfeiture
of crops and the mode of eviction. As per Section 12 of the
Kerala Land Conservancy Act, 1957, prior notice to occupant is
required. As per Section 15 of the Kerala Land Conservancy Act,
1957, the Government may, by notification in the Gazette,
authorise any officer [including the Secretaries of Panchayats and
Municipalities] by name or by virtue of his office to exercise all
or any of the powers conferred on a Collector under the Act.
Section 16 of the Kerala Land Conservancy Act, 1957 speaks
about appeal and revision.
10. Going by the statutory provisions of the Kerala Land
Conservancy Act, 1957 and the Kerala Panchayat Raj Act, 1994,
it is made clear that the beds and banks of rivers, are the property
of the Government but vests with the Panchayats under Section
218 of the Kerala Panchayat Act, 1994. Though by referring to
G. O. (P) No. 191/2016/RD dated 01.03.2016, the District
Collector, Alappuzha in his statement dated 21.02.2017 has
contended that the Secretaries of the Grama Panchayats and
Municipalities are authorised to exercise all powers conferred on
the District Collector under the Kerala Land Conservancy Act,
1957 except the power of appeal and revision under Section 16 of
the Act. However, it cannot be said that the District Collector,
Alappuzha nor the Secretary to the Government, Irrigation
Department, Government of Kerala, has no responsibility to
ensure that a water channel is preserved and conserved in its
original form and position without any encroachments, unless
construction of roads at certain points are required to be done by
respective Grama Panchayats, in accordance with law, without
grossly affecting the free flow of water through the said Thodu.
11. Statutory provisions of both the enactments make it
clear that it is the duty and responsibility of the District Collector
of every district, who is otherwise called as the Inspector of
Panchayats, to exercise his duty and functions, to ensure that no
water channel is encroached upon, although the Secretaries of
Grama Panchayats and Municipalities are authorised to exercise
all the powers conferred on the District Collector under the
Kerala Land Conservancy Act, 1957.
12. Merely because the Secretaries of the Grama
Panchayats are authorised, Collector of the District cannot say
that he will wait for the directions of this Court to take the
required steps for carrying out eviction of encroachments for
restoring the Thodu to its original position.
13. At this juncture, we prima facie observe that the
District Collector, Alappuzha, has not exercised his duty and
responsibility to preserve and conserve the Thodu it is original
form, but solely left it to the discretion of the Secretaries of the
Panchayats and Municipalities to take appropriate action. The
Secretaries of Arayad and Mannancherry Grama Panchayats have
not filed any counter affidavits refuting the averments made in
the writ petition. Writ petitioner has not impleaded the proper and
necessary party, namely the Secretary to the Government,
Irrigation Department, Government of Kerala, so as to ensure
enforcement of the statutory provisions by the authorities,
whereas the writ petitioner has impleaded the Chief Secretary to
the Government, Government of Kerala, Thiruvananthapuram
who is in our opinion may not be a necessary and proper party
for effective adjudication of the dispute. Therefore, in exercise of
the powers under Article 226 of the Constitution of India, we
deem it fit to implead the Secretary to the Government, Irrigation
Department, Government of Kerala as additional respondent No.
9 in this writ petition.
14. Mr. M. R. Sabu, learned Special Government Pleader
takes notice for the newly added party. Registry is directed to
carry out necessary amendments wherever required. Secretaries
to Aryad Grama Panchayat and Mannancherry Grama Panchayat,
respondents 3 and 4 are directed to file their response within two
weeks.
15. District Collector, Alappuzha is directed to explain
within two weeks as to why he has not taken any action for
removal of encroachments in Madayam Thodu and seeks for
directions from this Court. Additional respondent No. 9 is
directed to consider the entire materials on record, and issue
appropriate directions for demarcating the area, ascertain the
encroachments and to report, along with a detailed counter
affidavit."
2. Reverting, District Collector, Alappuzha, the 2 nd respondent,
has filed an affidavit. Relevant portion of the same is reproduced
hereunder:-
"3. It is respectfully submitted that the said statement was
made on my behalf, since I bonafide believed that the requisite
action would be taken by respondents 3 and 4 in accordance with
law. Though Madayam Thodu vests with respondents 3 and 4,
being the District Collector, I have equal responsibility to see that
the Government property is protected by all means. It is true that
I am responsible and duty bound to preserve and conserve
Government property. In the present case, I was under the
impression that the Secretaries of the Mannancherry Grama
Panchayat and Aryad Grama Panchayat would proceed in the
matter and do the needful for removing the encroachment on to
Madayam Thodu. Being convinced that proper action is not
forthcoming from the respective panchayats, I have taken all
requite, action to survey the area to find out the encroachment
and do the needful to evict the encroachers in accordance with
law.
4. The Madayam Thodu is bordering the two Grama
Panchayats and is having a length of around 2 1/2 KMs and
connects the Vembanad Lake to A.S. Canal. It is comprised in
Re-survey Nos. 119, 122, 123, 124, 125, 126, 127, 342, 343, 346,
357/2, 362, 363, 364, 365, 631, 632, 633, 634 inn Block No.3 of
the Komalapuram Village in Ambalappuzha Taluk. This thodu
flows in between the boundaries of Aryad and Mannanchery
Grama Panchayat. The Northern boundary of the thodu vest with
Mannanchery Grama Panchayat and the Southern boundary vest
in Aryad Grama Panchayat. There are about 200 families living
on both shores of the canal and the possession of these families
have to be verified. The Grama Panchayat and PWD Authorities
have constructed roads on both sides of the banks of the above
thodu. In addition to this, Mannannchery Grama Panchayat has
carried out a construction work for the collection centre of plastic
materials.
5. In order to initiate proceedings for demarcating the
boundaries of the Madayam Thodu to identify the
encroachments, a joint site inspection was carried out by the
Secretaries of Respondents and 4 along with the Village officer,
Komalapuram, Taluk Surveyor, Amabalappuzha on 18.07.2019.
Thereafter, the matter could not be followed up due to the floods
of 2019 which affected various parts of Alappuzha District. Now,
on my instructions, a survey team has been constituted by
proceedings by the Tahsildar (LR) Ambalappuzha bearing No. C4
10137/15 dated 15.01.2021, to survey the illegal encroachments
on either side of the Madayam Thodu and report the same within
a week. True copy of the proceedings bearing No. C4 10137/15
dated 15.01.2021 is produced herewith and marked as Annexure
R2(b). Further action in the matter would be taken immediately
on receiving the report and sketch from the survey team, after
intimating the Secretaries of Respondents 3 and 4 and seeking
their whole hearted co-operation in the matter of evicting the
encroachment on to Madayam Thodu.
6. Being the District Collector, I am duty bound to preserve
and conserve Government land and in the present case also I will
discharge my duties in accordance with law. On receiving the
report form the Survey Team, further action would be taken in
the matter. In the said circumstance, it is only just and proper this
Hon'ble Court be pleased to accept this affidavit."
3. Mr. M. R. Sabu, learned Senior Government Pleader
submitted that, on the basis of the proceedings of the Tahsildar (LR),
Ambalapuzha, dated 15.01.2021, annexure R2(b), a special survey
team has been constituted, to survey and measure the subject area,
alleged to have been encroached. Learned Senior Government Pleader
further submitted that, within a month from today, the said exercise
would be done.
4. Though the learned Senior Government Pleader submitted
that, survey and demarcation would be done, within a month from
today, having regard to the prayers sought for in the writ petition, that
encroachments made in Madayam Thodu, should be removed, and
that, the said thodu, should be restored back to the physical condition,
as reflected in the revenue records, maintained in the Village Office,
we direct respondents 2 to 9, to take appropriate action, in accordance
with law, for removal of the encroachments and restoration of thodu.
5. Affidavit of the District Collector, Alappuzha, the 2 nd
respondent, taking responsibility of discharging his duties, is accepted.
Annexure R2 (b), proceedings No. C.4/10137/15 dated 15.01.2021, of
the Tahsildar (LR), Ambalappuzha, is extracted hereunder:-
"PROCEEDINGS OF THE TAHSILDAR (LR),
AMBALAPUZHA
Present:- C. Premji
C.4-10137/15 Dated 15.01.2021
==============================================
Sub:- Encroachment over Government Puramboke - Survey and
Demarcation of Thodu Puramboke in respect of Madayam
Thodu of Komalapuram Village - constituting a Survey
Team regarding.
Ref:- 1. U.O Note dated 13.01.2021 issued to the Surveyors.
2. Telephonic Information bearing No. C.4-59895/16 dated
15.01.2021 from the District Collector.
The District Collector vide reference cited 2 has required
the survey and demarcation of the illegal encroachment on either
sides of Madayam Thodu within Komalapuram Village. In
respect of the said subject matter, WP(C) No. 5756/2017 is
pending before the Hon'ble High Court of Kerala. Though the
service of a Special Survey Team was requested to the District
Collector, the District Collector has directed to constitute a
Survey Team comprising the Surveyor of the Taluk for taking
further action vide reference 2. In the said circumstances, a
Survey Team comprising Sri. T.N. Renju. FGS, Sri. A. Ahammed
Shameem, SGS, Sri. S.Prasanth, FGS is hereby authorized to
survey and demarcate the illegal encroachment on either side of
Madayam Thodu and to prepare a sketch and report the same
within a week.
The survey measurement is to be done in co-ordination
with the Secretaries of Aryad and Mannancherry Grama
Panchayaths. The Secretaries of Aryad and Mannancherry Grama
Panchayath are required to make all arrangements for the survey
work and in case boundary stones are to be erected, all such
arrangements are to be taken on their behalf.
Tahsildar (LR)"
6. While parting with the case, we hope and trust that, the
undertaking given by the District Collector, Alappuzha, the 2 nd
respondent, that on receiving the report from the special survey team,
further action would be taken, be honoured, in letter and spirit, to
avoid any further litigation.
Accordingly, writ petition is disposed of.
However, Registry is directed to post the matter on 19.05.2021,
for compliance report, with all supporting documents.
Sd/-
S.MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P.CHALY
JUDGE
Eb
///TRUE COPY///
P. A. TO JUDGE
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE SKETCH OF THE
PORAMBOKE LAND ALONG THE BOUNDARIES OF
"MADAYAMTHODU" WITH ENGLISH
TRANSLATION.
EXHIBIT P2 TRUE COPY OF THE LETTER DATED
11/02/2014 ISSUED BY THE VILLAGE
OFFICER, KOMALAPURAM TO THE SECRETARY
OF THE 3RD RESPONDENT WITH ENGLISH
TRANSLATION.
EXHIBIT P3 TRUE COPY OF THE LETTER DATED
29/09/2014 ISSUED BY THE VILLAGE
OFFICER, KOMALAPURAM TO THE SECRETARY
OF THE 4TH RESPONDEN WITH ENGLISH
TRANSLATION.
EXHIBIT P4 TRUE COPY OF THE LETTER DATED 1/10/2014
ISSUED BY THE 4TH RESPONDENT TO THE 6TH
RESPONDENT WITH ENGLISH TRANSLATION.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED
17.11.2014 ISSUED BY THE 7TH RESPONDENT
TO THE 3RD RESPONDENT WITH ENGLISH
TRANSLATION.
EXHIBIT P6 TRUE COPY OF THE LETTER DATED
01/09/2016 ISSUED BY THE 2ND RESPONDENT
TO RESPONDENTS 3 AND 4 WITH ENGLISH
TRANSLATION.
EXHIBIT P7 TRUE COPY OF THE LETTER DATED
04/11/2016 ISSUED BY THE 3RD RESPONDENT
TO THE 7TH RESPONDENT WITH ENGLISH
TRANSLATION.
EXHIBIT P8 TRUE COPY OF THE LETTER DATED
04/11/2016 ISSUED BY THE 3RD RESPONDENT
TO THE 8TH RESPONDENT WITH ENGLISH
TRANSLATION.
EXHIBIT P9 TRUE COPY OF THE LETTER DATED
07/11/2016 ISSUED BY THE 3RD RESPONDENT
TO THE 2ND RESPONDENT WITH ENGLISH
TRANSLATION.
EXHIBIT P10 TRUE COPY OF THE LETTER DATED
04.05.2016 ISSUED BY THE 7TH RESPONDENT
TO THE 6TH RESPONDENT WITH ENGLISH
TRANSLATION.
EXHIBIT P11 TRUE COPY OF THE LETTER DATED
18/11/2016 ISSUED BY THE 3RD RESPONDENT
TO THE PETITIONER WITH ENGLISH
TRANSLATION.
EXHIBIT P12 PHOTOGRAPHS OF THE ENCROACHMENTS MADE
ON TO MADAYAMTHODU AND THE ILLEGAL
FILLING WORKS ON THE SAME
EXHIBIT P13 TRUE COPY OF THE FILED SKETCH DENOTING
THE EXTENT MEASUREMENT AND BOUNDARIES
OF THE MADAYAMTHODU AS MAINTAINED
RETAINED IN VILLAGE OFFICE WITH ENGLISH
TRANSLATION.
