Kerala High Court
Ponnachan Kv vs The State Of Kerala on 24 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
WEDNESDAY, THE 24TH DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA, 1943
WP(C) NO. 20325 OF 2019
PETITIONER/S:
V.R.ANIL KUMAR
AGED 42 YEARS
S/O. V.S RAJENDRAN, VAZHAYATHOPPIL HOUSE, AYAMANAM VILLAGE, PARIPPU
KARA, KOTTAYAM
BY ADV JOSEPH M.P.
RESPONDENT/S:
1 THE DIRECTOR GENERAL OF POLICE
OFFICE OF THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM
2 THE DISTRICT POLICE CHIEF,
KOTTAYAM
3 THE DEPUTY SUPEERINTENDENT OF POLICE,
KOTTAYAM
4 THE SUB INSPECTOR OF POLICE,
KOTTAYAM WEST POLICE STATION, KOTTAYAM.
5 VINOD,
PATHILCHIRA, KUMARAKOM BRANCH, KUMARAKOM NORTH, REPRESENTED BY ITS
SECRETARY VINOD PATHITECHIRA 686 563
6 BABU KALLUTHARA,
CHEEPUNKAL P.O, KUMARAKOM NORTH, KOTTAYAM 686 563
7 MOHANDAS KALLUTHARA,
CHEEPUNKAL P.O, KUMARAKOM NORTH, KOTTAYAM 686 563
WP(C) NO. 20325 OF 2019
-:2:-
8 SREEJITH KALLUTHARA,
CHEEPUNKAL P.O, KUMARAKOM NORTH, KOTTAYAM 686 563
BY ADVS.
GOVERNMENT PLEADER SHRI S.GOPINATHAN
SRI.SAJAN VARGHEESE K.
SRI.LIJU. M.P
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 3.11.2021, ALONG WITH
WP(C).9208/2021, THE COURT ON 24/11/2021 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
WEDNESDAY, THE 24TH DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA, 1943
WP(C) NO. 9208 OF 2021
PETITIONER/S:
1 PONNACHAN KV
AGED 53 YEARS
S/O.LATE VIJAYANANDAN, SAKHA SECRETARY, PRATHIYA RAKSHA DAIVA
SABHA (PRDS)-KUMARAKOM SAKHA, CHEEPUNKAL POST,
VARAMBINAKOM, KOTTAYAM DISTRICT-686563, HAVING THE
RESIDENCE PATHILCHIRA HOUSE, KUMARAKOM POST, KOTTAYAM
DISTRICT-686563, NOW RESIDING AT CN-3 (QUARTERS), TRAVANCORE
CEMENTS, NATTAKOM, KOTTAYAM DISTRICT-680566.
BY ADVS.
SAJAN VARGHEESE K.
SRI.LIJU. M.P
RESPONDENT/S:
1 THE STATE OF KERALA
REP. BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE LAND REVENUE COMMISSIONER,
LAND REVENUE COMMISSIONERATE, LAND REVENUE COMPLEX, PUBLIC
OFFICE BUILDING, MUSEUM, THIRUVANANTHAPURAM-695033.
3 THE DISTRICT COLLECTOR,
CIVIL STATION, KOTTAYAM-686002.
4 THE REVENUE DIVISIONAL OFFICER,
MINI CIVIL STATION, KOTTAYAM-686001.
WP(C) NO.9208 OF 2021
-:2:-
5 THE TAHSILDAR,
MINI CIVIL STATION, KOTTAYAM-686001.
6 THE VILLAGE OFFICER,
AYAMANAM VILLAGE, AYAMANAM POST, KOTTAYAM DISTRICT-686015.
7 ANILKUMAR VR
S/O.RAJENDRAN, VAZHATHOPPIL HOUSE, CHEEPUNKAL POST, KUMARAKOM NORTH,
KOTTAYAM DISTRICT-686563.
8 ADDL.R8.AIMANAM GRAMA PANCHAYAT, REP. BY ITS SECRETARY,
AIMANAM GRAMA PANCHAYAT OFFICE, AIMANAM P.O., KOTTAYAM-686015,
9 ADDL.R9. THE SECRETARY,
AIMANAM GRAMA PANCHAYAT, AIMANAM GRAMA PANCHAYAT OFFICE, AIMANAM
P.O., KOTTAYAM-686 015.
*ADDL. R8 AND R9 ARE IMPLEADED AS PER ORDER DATED 01-07-2021 IN IA 1/2021
BY ADVS.
GOVERNMENT PLEADER SHRI S.GOPINATHAN
JOSEPH M.P.
SHRI.SURIN GEORGE IPE, SC, AYMANAM GRAMA PANCHAYAT
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 3.11.2021, ALONG WITH
WP(C).20325/2019, THE COURT ON 24/11/2021 DELIVERED THE FOLLOWING:
A.MUHAMED MUSTAQUE, J.
------------------------------------------
W.P.(C).Nos.20325/2019 & 9208/2021
------------------------------------------
J U D G M E N T
Dated this the 24th day of November, 2021
These cases are related to encroachment by the petitioner in
W.P.(C).No.9208/2021 and removal of the same. This Court, in
W.P.(C).No.7563/2020, at the instance of the writ petitioner in
W.P.(C).No.20325/2019 and others, directed Aimanam Grama
Panchayat to consider the complaint on encroachment in public
land and take action, if necessary, in accordance with law. The
writ petitioner in W.P.(C).No.20325/2019 also filed a contempt
case against the judgment in W.P.(C).No.7563/2020, as
Cont.Case (C).No.1763/2020. The above contempt case is
pending before this Court. W.P.(C).No.20325/2019 was filed for
police protection as against the alleged encroachers stating that
the encroachers are preventing the petitioner therein and his
WP(C) NOS. 20325 OF 2019 & 9208/2021
family members from taking water from the thodu. The
encroachment appears to be in a thodu puramboke. A report
has been filed in that matter by the Sub Inspector of Police
stating that the pathway used by the petitioner therein to fetch
water from the public tap and public thodu has been obstructed.
It is further stated that the only access to the public tap and
kadavu is through the encroached area.
2. W.P.(C).No.9208/2021 is filed on behalf of the
encroachers of Government land by seeking mandamus to
consider the application for assignment. The writ petitioner in
W.P.(C).No.9208/2021 claims that he is the Secretary of the
Kumarakom Sakha of Prathyaksha Raksha Daiva Sabha. The
petitioner admits that the Aradhana Mandiram (place of
worship) is situated in a puramboke land. According to him, in
the light of the Government Order, G.O.
(MS).No.40/2020/Revenue, dated 29/1/2020, they are entitled
for assignment of land in question. According to the petitioner,
the Sabha is in occupation of the puramboke land for many
WP(C) NOS. 20325 OF 2019 & 9208/2021
years and is entitled for assignment. In the above case, the
Tahsildar filed a statement. It is stated therein that the land in
question is a Kavanar Puramboke and the Grama Panchayat is
the custodian of the puramboke land. It is further stated that the
land being a thodu puramboke, it cannot be assigned in the light
of the judgment of this Court in O.P.No. 16077/1996.
3. There is hardly any dispute in regard to the illegal
occupation of the Government land. The question in these cases
can be considered only after deciding whether the petitioner in
W.P.(C).No.9208/2021 is entitled to apply for assignment of
thodu puramboke land as above.
4. Ext.P1 is the application submitted by the petitioner
in W.P.(C).No.9208/2021 for assignment of the land, before the
Tahsildar, Kottayam Taluk. Ext.P4 is the Government guidelines
for assigning encroached land for the place of worship,
cemetery, cultural activities etc.
5. The land in question is situated in resurvey No.371
Block 9 of Aimanam Village, of Kottayam Taluk. It is described
WP(C) NOS. 20325 OF 2019 & 9208/2021
in the basic tax register as Kavanar Puramboke. As seen from
Exts.R5(b) and R5(c) in W.P.(C).No.9208/2021, an extent of
0.0333 hectares of land have been encroached by Prathyaksha
Raksha Daiva Sabha.
6. The Apex Court in S.L.P.(C).No.8519/2006 and
connected cases dated 31/1/2018 [Union of India v. State of
Gujarat(1)] directed to remove all encroachments by religious
body on public land. The Apex Court ordered that no
unauthorised construction can be carried out or permitted in
temple, church, mosque etc., in public places. It is further
ordered that, if unauthorised construction has already taken
place, the Government can, on case to case basis, review and
take appropriate steps.
7. The Government power to assign puramboke or
Government land is traceable to the Kerala Government Land
Assignment Act, 1960 and the Rules made thereunder. It is to be
noted that the land belong to the State and, the Executive
Government is holding such land as a public trustee; the
1 Indian Kanoon https://indiankanoon.org/doc/121003462/
WP(C) NOS. 20325 OF 2019 & 9208/2021
Government cannot assign or allow occupation of Government
land except in accordance with the statutory provisions under
the Land Assignment Act and Rules. Therefore, the question that
arises for consideration is whether the petitioner's application
has to be directed to be considered in terms of G.O.
(MS).No.40/2020/Revenue or not.
8. The Land Assignment Act laid down procedures to be
followed by the Government for assigning Government land.
The Government land also can be assigned by transfer of land,
by way of lease and by grant of licence. There is a prescribed
procedure under Section 4 of the Land Assignment Act before
assigning the Government land. This procedure ensures that
public interest is protected in assigning the land. Rule 7 of the
Land Assignment Rules prescribe priority to be observed in
assignment. Rule 7 read in the light of Section 4, rules out
arbitrariness in assigning Government land. Rule 24 confers a
residuary power on the Government to assign land on public
interest, bypassing all other procedures. It is apparent that the
WP(C) NOS. 20325 OF 2019 & 9208/2021
Government formulated a policy to assign Government land to
encroachers as seen from G.O.(MS).No.40/2020/Revenue
invoking power under Rule 24. This Court cannot overlook the
mandate of Rule 24 while construing various clauses in Ext.P4
for assigning Government land to encroachers.
9. Prathyaksha Raksha Daiva Sabha, Kumarakom Sakha
is admittedly encroacher of thodu puramboke. A learned Single
Judge of this Court by judgment in O.P.No.16077/1996, dated
13/1/1997, directed the Government to remove encroachment
from kayal puramboke in and around Ernakulam District. A
kayal puramboke or thodu puramboke cannot be assigned
inasmuch as it is required to protect the river and kayal itself.
An encroacher cannot be put in a better position by encroaching
upon kayal puramboke or river puramboke. Public interest in
this context has also to be perceived from the perspective of the
requirement of the encroacher. It is not a case where larger
public interest demands protection of the encroacher from
eviction like an occupier of Government land by a person, who
WP(C) NOS. 20325 OF 2019 & 9208/2021
belongs to a lowest strata of the society. Public interest
pre-suppose larger interest which is relatable to the welfare of
the general public or society. A construction of place of worship
in public land in no way can be considered to subserve larger
public interest. That apart, it has come out that encroachment
has deprived the neighbouring people including the petitioner in
W.P.(C).No.20325/2019 from having access to the thodu to
fetch water. If there is no predicated element of public interest,
no encroachers can claim the benefit of G.O.
(MS).No.40/2020/Revenue, to legalise any illegal activity. The
claim based on G.O.(MS).No.40/2020/Revenue can only be
sustained when there is a predominant public interest preceded
in such case. If this Court directs by issuance of writ of
mandamus to the public authority to consider the application,
that would amount to directing public authority to entertain a
claim which is ex facie unsustainable. No doubt, the public
authority is the primary authority to form an opinion, whether
the application need to be considered or not. However, when
WP(C) NOS. 20325 OF 2019 & 9208/2021
the Court is called upon to decide on issuing mandamus, the
Court cannot issue mandamus overlooking the admitted facts
available before the Court. It has come out from the report of
the police that an obstruction has been caused to the petitioner
in W.P.(C).No.20325/2019 from taking water from public place.
The Government cannot countenance or encourage encroachers
who become threat to others to persist with threat, by legalizing
their occupation. The police shall ensure protection to the
petitioner in W.P.(C).No.20325/2019, whenever it is required,
for taking water from public place without any obstruction from
the side of the private respondents in that writ petition.
Accordingly, W.P.(C).No.9208/2021 is dismissed. W.P.
(C).No.20325/2019 is allowed granting relief as above.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE
24/11/2021
After pronouncement of the judgment today, the learned counsel for the
party respondents in W.P.(C).No.20325/2019 submitted that the party
WP(C) NOS. 20325 OF 2019 & 9208/2021
respondents have no intention to create law and order situation and, at
present, there is no such situation as well. The said submission is
recorded.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE
ms/ln
WP(C) NOS. 20325 OF 2019 & 9208/2021
APPENDIX OF WP(C) 9208/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED
30.11.2019 SUBMITTED TO THE 5TH
RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE RECEIPT ISSUED ON
RECEIVING EXHIBIT P1.
EXHIBIT P3 TRUE COPY OF THE OWNERSHIP CERTIFICATE
ISSUED IN RESPECT OF THE BUILDING
WHEREIN 'SAKHA MANDIRAM' WOULD SITUATE.
EXHIBIT P4 TRUE COPY OF GO(MS)NO.40/2020/REVENUE.
EXHIBIT P5 TRUE COPY OF THE VILLAGE OFFICER'S
REPORT DATED 02.02.2019 SUBMITTED
BEFORE THE 4TH RESPONDENT.
RESPONDENT
EXHIBITS
EXHIBIT R5 A TRUE COPY OF THE BASIC TAX REGISTER
EXHIBIT R5 B TRUE COPY OF THE REPORT PREPARED BY THE
TALUK SURVEYOR, KOTTAYAM
EXHIBIT R5 C TRUE COPY OF THE SKETCH PREPARED BY THE
TALUK SURVEYOR, KOTTAYAM
EXHIBIT R7 A TRUE COPY OF THE JUDGMENT DT. 8/7/2019
PASSED BY THIS COURT IN WPC 7886/2019
EXHIBIT R7 B TRUE COPY OF THE JUDGMENT DT 21/1/2020
PASSED BY THIS COURT IN COC 2309/2019
EXHIBIT R7 C TRUE COPY OF THE JUDGMENT DT 18/3/2020
PASSED BY THIS COURT IN WPC 7563/2020
WP(C) NOS. 20325 OF 2019 & 9208/2021
APPENDIX OF WP(C) 20325/2019
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF ONE OF SUCH COMPLAINT
SUBMITTED BY THE PETITIONER BEFORE THE
4TH RESPONDENT DATED 21/1/2019 ALONG
WITH THE ACKNOWLEDGMENT
EXHIBIT P2 TRUE COPY OF THE OUTPATIENT RECORD
DATED 5.2.2020.
EXHIBIT P3 TRUE COPY OF THE COMPLAINT DATED
6.2.2020.
RESPONDENT EXHIBITS
EXHIBIT R5 A TRUE COPY OF THE ROUGH SKETCH.
EXHIBIT R5 B ORIGINAL PHOTOGRAPHS SHOWING THE
'KADAVU' BELONGING TO THE PETITIONER,
PETITIONER'S RESIDENCE, 'ARADHANA
MANDIRAM' AND THE FENCE LYING BETWEEN
THE PETITIONER'S PROPERTY AND THE
'ARADHANA MANDIRAM' PROPERTY.
EXHIBIT R5 C ORIGINAL PHOTOGRAPH OF THE 'MUTTU'
SITUATED ON THE NORTH-EASTERN CORNER OF
THE PETITIONER'S PROPERTY.
