Kerala High Court

Lilly vs The State Of Kerala on 23 November, 2021

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 23RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943
                      WP(C) NO. 10584 OF 2020
PETITIONER:

            LILLY
            AGED 48 YEARS
            D/O.CHIRAYATH DEVASSY, ANTHIKAD P.O., ANTHIKAD
            VILLAGE, THRISSUR-680641.
            BY ADV G.SREEKUMAR (CHELUR)

RESPONDENTS:

    1       THE STATE OF KERALA
            REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
            REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,
            THIRUVANANTHAPURAM-695001.
    2       THE DISTRICT COLLECTOR,
            COLLECTORATE, AYYANTHOLE, THRISSUR-680002.
    3       THE VILLAGE OFFICER,
            ANTHIKAD VILLAGE OFFICE, THRISSUR-680641.
    4       THE ANTHIKAD GRAMA PANCHAYATH,
            REP. BY ITS SECRETARY, ANTHIKAD P.O., THRISSUR-
            680641.
OTHER PRESENT:

            SMT.DEEPA NARAYANAN, SR.GP


     THIS     WRIT   PETITION    (CIVIL)     HAVING    COME    UP    FOR
ADMISSION     ON   23.11.2021,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W.P.(C).No.10584/2020

                                         2



                     P.V.KUNHIKRISHNAN, J.
                      --------------------------------
                     W.P.(C).No.10584 of 2020
               ----------------------------------------------
            Dated this the 23rd day of November, 2021


                                JUDGMENT

This writ petition is filed with following prayers:

i. Call for the records leading to Ext-P13 and may be pleased to issue a writ of Certiorari to quash the same in the interest of justice.

ii. Issue a writ of Mandamus or any other appropriate writ, order or direction commanding the 2nd respondent to detect all the encroachments and the illegal reclamation of the area, by not sparing any person who has effected the same, and thus bringing forth a permanent solution for the problem as reflected in Ext.P13, in a determined period of time, in the interest of justice.

iii. To pass any such or further orders as the petitioner may seek and this Hon'ble Court deem fit to grant.

2. Petitioner is aggrieved by the alleged illegality

perpetrated especially at the instance of the 4 th respondent in

as much as inspite of there being clarity in the order passed

by the 2nd respondent, invoking the provisions of the Disaster

Management Act, 2005, which obviously was only a temporary W.P.(C).No.10584/2020

order, still the 4th respondent attempted to cause further

destruction of the property of the petitioner. It is the case of

the petitioner that taking note of Ext.P5 order passed by the

2nd respondent being the authority under the Disaster

Management Act and finding that no perceivable disaster

subsist in the property in question, to restore the original

position in the property in question orders ought to have been

had, but under one pretext or another the request of the

petitioner was not adhered to. It is the case of the petitioner

that she had to approach this Court and orders were passed

and now the whole exercise is sought to be repeated again.

Ext.P5 is an order passed by the District Collector in his

capacity as Chairperson of the District Disaster Management.

The grievance of the petitioner is that no further action is

taken based on Ext.P5 and as per the minutes as evident by

Ext.P13, the respondents are going against Ext.P5 decision of

the District Collector. Hence this writ petition.

3. Heard the counsel for the petitioner, Government

Pleader and the counsel for the Panchayat.

4. I perused Ext.P5 order in which the District

Collector, who is the Chairperson of the District Disaster W.P.(C).No.10584/2020

Management, issued certain directions to the authority

concerned, to see that there is no further problem. Clause (6)

of Ext.P5 shows that this issue is to be resolved finally after

the rainy season, in consultation with PWD and Panchayat.

Ext.P5 order is of the year 2018. It is the case of the petitioner

that no further steps are taken in accordance to Ext.P5.

5. On the other hand, the Government Pleader takes

me through a report submitted by the District Collector. It

will be better to extract the instructions given by the District

Collector to the Advocate General:

"Kind attention is invited to the reference cited. The District Collector, Thrissur is the second respondent in the said writ petition. A narrow water channel was dug through the petitioner's property towards the public canal during 2018 & 2019 to avoid flooding of the KMG L.P. school premises at Anthikkad on the Peringotukara - Kanjani PWD road. The property under dispute was a paddyland which was later converted. Earlier, there existed a water channel through the said property, which is now been levelled up. In order to avoid flooding, a canal 1.50 metre deep should be constructed through the PWD road. But, it is not feasible due to the following reasons:

i. The said PWD road is too narrow for the construction of canal. In most places, the width of the road is less than 7 metres. Due to this, W.P.(C).No.10584/2020

traffic cunjunction is frequent in this area. ii. In most places, the width of the berm is about 50cm to 60 cm. Therefore the construction of canals in both sides may lead to road accidents. iii. Building such a canal in the LP school premises may lead to obstruction for students and pedestrians.

iv. The electric connection and drinking water connection pipes passes through the narrow berm.

At present there is no other way to drain the flood water other than the erstwhile course of water channel present in the petitioner's property. Severe water-logging will contaminate the nearby wells and other fresh water sources and may lead to epidemic which will cause a hazardous situation.

The prayer of the petitioner is to pass an interim order directing the respondents 2 to 4, to take urgent steps to construct canals on either sides of the PWD road and the encroachment if at all any is removed.

Executive Engineer (PWD Roads) has already directed to report for encroachments if any. If at all the encroachment is found, the eviction of the same and the widening of the road and the construction of canal is a time consuming process. Any action in the matter can only be taken by the Authorities of PWD."

6. I don't want to make any observation about the

contention of the petitioner or the Chairperson of the District W.P.(C).No.10584/2020

Disaster Management. According to me, these are matters to

be dealt with by the officer concerned in accordance to law

after considering the ground reality of that particular area.

Admittedly Ext.P5 is an order passed by the Chairperson of

the District Disaster Management. I am of the view that there

can be a direction to the District Collector to co-ordinate PWD

and Panchayat to resolve the issue in this area finally within a

time frame. The Government Pleader submitted that Ext.P13

is a proceedings in continuation of Ext.P5. But the counsel for

the petitioner says that Ext.P13 is not in continuation of Ext.P5

and it is against Ext.P5. Whatever that may be, according to

me, a quietus is necessary to this issue. The District Disaster

Management Authority will do the needful to see that the

problem of the inhabitants of this particular area is redressed.

Therefore, this writ petition is disposed of directing the

2nd respondent to do the needful in accordance to Ext.P5 and

take appropriate measures to see that the problem in this area

is resolved, as expeditiously as possible, at any rate, within six

months from the date of receipt of a copy of this judgment.

sd/-

                                        P.V.KUNHIKRISHNAN
JV                                             JUDGE
 W.P.(C).No.10584/2020






                 APPENDIX OF WP(C) 10584/2020

PETITIONER EXHIBITS
EXHIBIT P1        A TRUE COPY OF THE TAX RECEIPT IN THE
                  NAME OF THE CHILDREN OF CHIRAYATH

DEVASSY ISSUED BY THE ANTHIKAD VILLAGE OFFICER DATED 30.6.2015.

EXHIBIT P2 A TRUE COPY OF THE DOCUMENT BEARING NO.1052 OF 01 DATED 4.5.01 OF THE ANTHIKAD S R O.

EXHIBIT P3 A TRUE COPY OF THE TAX RECEIPT IN THE NAME OF THE BADRUDEEN ISSUED BY THE ANTHIKAD VILLAGE OFFICER DATED 30.6.2015.

EXHIBIT P4 A TRUE COPY OF THE JUDGMENT AND DECREE IN OS NO.5036 OF 2015 DATED 4.7.2017 ON THE FILE OF THE 3RD ADDL. MUNSIFF COURT, THRISSUR.

EXHIBIT P5 A TRUE COPY OF THE ORDER PASSED BY THE SECOND RESPONDENT DATED 23.6.2018.

EXHIBIT P6 A TRUE COPY OF THE REQUEST OF THE PETITIONER BEFORE THE FOURTH RESPONDENT DATED 28.9.2018.

EXHIBIT P7 A TRUE COPY OF THE RECEIPT ISSUED BY THE DISTRICT COLLECTOR, THRISSUR DATED 3.10.2018.

EXHIBIT P8 A TRUE COPY OF THE REQUEST OF THE PETITIONER BEFORE THE ANTHIKAD POLICE DATED 20.6.2018.

EXHIBIT P9 A TRUE COPY OF THE RECEIPT ISSUED BY THE ANTHIKAD POLICE DATED 20.6.2018. EXHIBIT P10 A TRUE COPY OF THE ORDER PASSED IN WPC NO.9045 OF 2019 DATED 25.3.2019.

EXHIBIT P11 A TRUE COPY OF THE PHOTOGRAPHS TAKEN BY THE PETITIONER RECENTLY.

EXHIBIT P12 A TRUE COPY OF THE COUNTER FILED IN WPC NO.9045 OF 2019 DATED 27.6.2019.

EXHIBIT P13 A TRUE COPY OF THE ORDER PASSED BY THE SECOND RESPONDENT DATED 6.5.2020.