Kerala High Court

Janasakthi vs The State Of Kerala on 7 January, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                  &

               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

    THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942

                      WP(C).No.30113 OF 2018(S)


PETITIONERS:

      1        JANASAKTHI, IDUKKI UNIT,
               REP. BY A.P.MATHEW, UNIT PRESIDENT,
               AYATHUPADATH HOUSE, IDUKKI COLNY P.O.,
               THANNIKANDAM, IDUKKI DISTRICT,PIN- 685 602.

      2        P.L.BENNY,
               SECRETARY, JANASAKTHI, IDUKKI UNIT, POONTHURYTHIL
               HOUSE, IDUKKI COLNY, P.O.IDUKKI DISTRICT,
               PIN-685 602.

               BY ADVS.
               S.K. MURALEEDHARA KAIMAL
               A.K.MADHAVAN UNNI

RESPONDENTS:

      1        THE STATE OF KERALA
               REP. BY THE CHIEF SECRETARY AND CHAIRMAN,
               KERALA STATE DISASTER MANAGEMENT AUTHORITY,
               GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM-695 001.

      2        THE DISTRICT COLLECTOR IDUKKI AND CHAIRMAN IDUKKI
               DISASTER MANAGEMENT AUTHORITY,
               PAINAVU [PO]PIN-685 602.

      3        THE TOWN PLANNER, IDUKKI,
               VANCHIKAVALA ROAD, VANCHJIKKAVALA, CHERUTHONI,
               KERALA-685 602.

      4        THE SECRETARY, DISTRICT PANCHAYATH,
               IDUKKI PAINAVU(P.O.), PIN-685 602.

      5        THE SECRETARY, VAZHATHOPE GRAMA PANCHAYATH,
               THADIYANPADU(P.O.), IDUKKI DISTRICT, PIN-685 602.
 WP(C).No.30113 OF 2018(S)         2



      6      THE TAHSILDAR, IDUKKI TALUK,
             PAINAVU(P.O.), PIN-685 602.

      7      PARATHODU ANTONY,
             STONAGE TORIST COMPLEX, RESIDING AT MAYPPAN HOUSE,
             CHERUTONI, IDUKKI COLNY P.O., IDUKKI DISTRICT,
             PIN-685 602.

      8      MUMTAZ BASHEER,
             AKKOTHU HOUSE, CHERUTONI, IDUKKI COLNY P.O.,
             IDUKKI DISTRICT, PIN-685 602.

      9      K.P.M.BASHEER,
             KONNAMKUDIYIL HOUSE, CHERUTONI, IDUKKI COLNY P.O.,
             IDUKKI DISTRICT, PIN-686 602.

      10     BAPPU OOMMER,
             ALIAKKUNNEL HOUSE, CHERUTONI, IDUKKI COLNY P.O.,
             IDUKKI DISTRICT, PIN-685 602.

      11     A.P.USMAN,
             ARIMBASSERYIL HOUSE, CHERUTONI, IDUKKI COLNY P.O.,
             IDUKKI DISTRICT, PIN-685 602.

      12     VYAPARI VYAVASAYI EKOPANA SAMITHY,
             CHERUTONI, IDUKKI, REPRESENTED BY ITS SECRETARY,
             IDUKKI COLNY P.O., PIN-685 602.

      13     ADDL.R13 IDUKKI DISTRICT RESIDENTIAL AND COMMERCIAL
             BUILDING OWNERS ASSOCIATION
             CHERUTHONY, REPRESENTED BY ITS SECRETARY, IDUKKI
             COLONY POST, IDUKKI DISTRICT-685602.
             (ADDL.R13 IS IMPLEADED AS PER ORDER DATED
             08/11/2018 IN IA.01/2018)

      14     ADDL.R14 THE KERALA STATE ELECTRICITY BOARD
             VYDHYUDHI BHAVANAM, PATTOM,
             THIRUVANANTHAPURAM-695004, REPRESENTED BY ITS
             CHAIRMAN. (ADDL.R14 IS SUO MOTU IMPLEADED AS PER
             ORDER DATED 22/11/2018)



             SRI.K.V.SOHAN, STATE ATTORNEY FOR R1 TO R3 AND R6,
             SRI.UNNIKRISHNAN V. ALAPPAT FOR R4,
             SRI. JIMMY GEORGE (THADATHIL) FOR R5,
             SMT. SUMATHY DANDAPANI(SR) FOR R7,
             SRI.TERRY V.JAMES FOR R8,
             SRI. N.RAMESH CHANDER FOR R10,
 WP(C).No.30113 OF 2018(S)         3



             SRI.SANTHEEP ANKARATH FOR R11
             SRI.A SHAFEEK (KAYAMKULAM) FOR R12
             SRI.P.K.RAVISANKAR FOR R13
             SRI.JACOB P. ALEX, AMICUS CURIAE.
             SRI.N.KRISHNAPRASAD FOR R14

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.30113 OF 2018(S)                     4




                                   JUDGMENT

SHAJI P.CHALY,J.

This writ petition is filed as a Public Interest Litigation by an unregistered

association viz., Janasakthi Idukki Unit, represented by its unit President

A.P.Mathew and an individual claims to be the Secretary of the said association

seeking the following reliefs:

1.To issue a writ of mandamus, direction or order commanding respondents 1 to 6 to ensure that No person shall erect or re-erect any building within construction free zone Area under Idukki Township Area Development scheme.

2.To prohibit respondents 3 and 5 from issuing any building permits for erection or re- erection of any construction within the construction free zone area under Idukki Township Area Development scheme.

3. To prohibit respondents 7 to 12 from erecting or re-erecting any structures or buildings within the construction free zone area under Idukki Township Area Development scheme.

4. To direct the 5th respondent to take all necessary immediate action for demolition and removal of all unauthorised constructions including flood damaged building remains within the construction free zone area under Idukki Township Area Development scheme.

5.To pass such other interim and consequential orders

2. Brief material facts for the disposal of the writ petition are as follows;

Petitioners are permanent residents of Idukki Village. According to them, they

are Members of Janasakthi, a social welfare organization; respondents 7 to 11

are owners and occupants of some buildings in Cheruthony Idukki district and

they are interested persons as they are owners and occupants of unauthorised

constructions within a prohibited construction free zone in Idukki.

3. According to the petitioners, as per Idukki Township Area Development

Scheme, no person shall erect or re-erect any building within construction free

zone in Idukki and the said scheme stood violated and more than 344 buildings

have been constructed by different persons and organizations in the

construction free zone. According to them, the 2018 August floods washed

away many such unauthorised buildings partly and fully and the remaining of

the collapsed and half collapsed 7 storied and 5 storied and other buildings

stand near the river and roads posing danger to public, tourists and also

animals. Attempts are now being made by respondents 7 to 10 and many

others to reclaim the washed away shores of the Cheruthony River running at

Cheruthoni town construction free zone area, as if they are mending the

damages caused to the buildings in the flood of august 2018. The attempt,

according to the petitioners, is to save their unauthorised constructions and

expand holdings by encroaching the damaged river bed at Cheruthony Idukki.

The Authorities failed to implement a Government approved scheme in its letter

and spirit and in order to prevent violations and encroachment of river, in the

interests of public, the petitioners filed this public interest writ petition before

this Court.

4. Counter affidavits are filed by the party respondents as well as

Government refuting the contentions raised in the writ petition. It is contended

by all that, the scheme envisaged by the State Government viz., Idukki

Township Area Development Scheme, in exercise of the powers conferred by

section 4 of the Travancore Town and Country Planning Act, 1120 r/w. Rule 12

of the Travancore Town and Country Planning Rules, 1953 dated 27.9.1980 was

never notified by the State Government. Petitioners have not produced the

copy of the scheme published by the State Government. However, the 13th

respondent, viz., Idukki District Residential and Commercial Building Owners

Association, Cheruthoni, Idukki District, has produced the scheme as

Ext.R13(a).

5. We have heard Sri.A.K.Madhavanunni, learned counsel for petitioners,

Sri.K.V.Sohan, learned State Attorney appeared for respondents 1, 3 and 6,

Sri.Unnikrishnan V. Alappat, learned Standing Counsel appeared for respondent

No.4, Sri.Jimmi George Thadathi, learned counsel, appeared for respondent

No.5, Smt.Sumathy Dandapany, learned Senior counsel, appeared for

respondent No.7, Sri.Terrry V. James, learned counsel, appeared for respondent

No.8, Sri.M.Ramesh Chandra, learned Senior Counsel, appeared for respondent

No.10, Sri.Santheep Ankarath, learned counsel, appeared for respondent No.11,

Sri.A.Shafeek (Kayamkulam), learned counsel, appeared for respondent No.12,

Sri.P.K.Ravishankar, learned counsel, appeared for respondent No.13 and

Sri.Jacob P. Alex, learned Amicus Curiae.

6. It is clear from the pleadings and the legal grounds raised by the writ

petitioners that, the case is built upon Ext.R13(a) scheme of the State

Government. In our considered opinion, if the scheme is not implemented by the

State Government by notifying the same in the official gazette, petitioners are

not entitled to get any reliefs as are sought for in the writ petition. We will come

to the said aspect at a later point of time. Nowhere in the writ petition

petitioners have stated that 1st petitioner is a registered association under any of

the statutes in vogue in the State of Kerala. The 7 th respondent i.e., one Antony,

owner of a building, has specifically taken a contention that the 1 st petitioner is

not a registered association and therefore, no writ petition can be filed by the 1 st

petitioner. Seventh respondent has also submitted that it is not stated anywhere

in the writ petition, who are the members of the 1 st petitioner association and no

court fee has paid on behalf of the members of the association,

who are said to be the beneficiaries of the association on account of the filing

of the writ petition.

7. It is the settled position in law that no writ petition can be maintained

by an unregistered association and also without producing the list of the

members of the association, who are also liable to pay court fees. Therefore,

we are of the opinion that, 1st petitioner has no locus standi to file the public

interest litigation.

8. Whatever that may be, the 2 nd petitioner is an individual, who claims

to be the Secretary of the 1st petitioner association and therefore, we are of

the considered opinion that even though the 1 st petitioner is not a competent

person, the 2nd petitioner being an individual is entitled to maintain the writ

petition. We are not going into the rival contentions raised by the parties in the

writ petition since the learned State Attorney has submitted before this Court

that Ext.R13(a) scheme is not notified by the State Government in

contemplation of the provisions of the scheme. However, learned counsel for

petitioners submitted that a further notification of the scheme is not required

since the explanatory note in Ext.R13(a) scheme makes it clear that it was

notified. The relevant portion of the scheme reads thus:

       Government of Kerala                               Reg.No.KL/TV(N)/12




                                         KERALA GAZETTE

                                         EXTRAORDINARY
                                     PUBLISHED BY AUTHORITY

__________________________________________________________________________________ . Vol.XXV] Trivandrum, Saturday, 27th September 1980 _____________________[No.710 5th Asvina 1902 __________________________________________________________________________________

GOVERNMENT OF KERALA

Local Administration & Social Welfare (G) Department

NOTIFICATION

G.O. (Ms) No. 240/80/LA&SWD. Dated, Trivandrum, 26th September 1930.

S. R. O. No. 900/80:-- In exercise of the powers conferred by section 4 of the Travancore-Town and Country Planning Act; 1120 (Travancore Act XXI of 1120 ) read with rule 12 of the Travancore Town and Country Planning Rules, 1953, Government of Kerala hereby promulgate the Idukki Township Area Development Scheme, the same having been previously published as required by rule 11 of the Travancore Town and Country Planning Rules, 1953.

By order of the Governor,

M. DANDAPANI, Special Secretary to Government.

Explanatory Note (This does not form part of the notification, but is intended to indicate its general purport)

In the notification No. 303/76/LA&SWD dated 21-12-1976 published in the Gazette Extraordinary No.751 dated 31st December, 1976, Government constituted the Idukki Township Area Development Authority for the preparation of a scheme for the development of the Township area. The said Authority has prepared and submitted a scheme for the development of the area for approval. Government have published the scheme for the information of persons likely to be affected thereby. They have now approved the scheme. It has to be published in the Gazette as required under the provisions of the Travancore Town and Country Planning Act, 1120. This notification is intended to achieve the above purpose.

THE IDUKKI TOWNSHIP AREA DEVELOPMENT SCHEME

1. Short title and commencement.--(a) This scheme may be called as the "Idukki Township Area Development Scheme.

(b) It shall come into force with effect from a date to be announced later by Government."

9. On a reading of the explanatory note, it is clear that the scheme was

published for the information of persons likely to be affected thereby and it

was accordingly published in the gazette. However, clause 1(b) of the scheme

extracted above makes it clear that it shall come into force only with effect

from the date to be announced later by the Government. The scheme is of the

year, 1980 and when the matter was taken up before this Court on 5 th

February, 2020, the learned State Attorney submitted that the scheme was not

notified. However, on that date the State was directed to file a counter

affidavit. Anyhow when the matter came up before this Court on 6.1.2021, the

learned State Attorney again submitted that the scheme is not yet notified by

the State Government.

10. Taking into account the above said aspect, we are of the considered

opinion that since the scheme has not yet come into force by issuing

appropriate notification by the State Government in contemplation of the

provisions of the scheme, petitioners are not entitled to get any reliefs as are

sought for in the writ petition, due to the prime reason that, the entire

pleadings made in the writ petition is dependent on the scheme and the

mistaken impression that the scheme was implemented by the State

Government.

Therefore, the writ petition has no sustenance, accordingly it is

dismissed.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

This writ petition is filed as a Public Interest Litigation by an unregistered association viz., Janasakthi Idukki Unit, represented by its unit President A.P.Mathew and an individual claims to be the Secretary of the said association seeking the following reliefs: