Kerala High Court
D.S.Sonu vs The District Collector on 21 June, 2024
Author: P Gopinath
Bench: P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 13TH DAY OF JUNE 2024 / 23RD JYAISHTA, 1946
WP(C) NO. 12867 OF 2016
PETITIONER:
D.S.SONU
AGED 38 YEARS, S/O.DIVAKARAN, CHITTEDATHU VEEDU,
MAVADI(P.O), KULAKKADA VILLAGE,KOTTARAKKARA TALUK,
KOLLAM DISTRICT.
BY ADV SRI.K.V.ANIL KUMAR
RESPONDENT/S:
1 THE DISTRICT COLLECTOR
COLLECTORATE, KOLLAM,691001.
2 REVENUE DIVISIONAL OFFICER
KOLLAM,691001.
3 THE TAHSILDAR
THALUK OFFICE,KOTTARAKKARA, THRIKKANNAMANGAL(P.O),
KOTTARAKKARA.
4 THE VILLAGE OFFICER
KULAKKADA VILLAGE OFFICE,
MAVADI(P.O),KOTTARAKARA,KOLLAMM DISTRICT 691506
5 SURESHKUMAR.T
PRESIDENT,NSS KARAYOGAM NO.656, MAVADI(P.O)
KOTTARAKARA, KOLLAM DISTRICT,691506.
6 SECRETARY
NSS KARAYOGAM NO.656, MAVADI(P.O),KOTTARAKARA, KOLLAM
DISTRICT 691506.
BY ADVS.
SRI.A.T.ANILKUMAR
SMT.V.SHYLAJA, SMT. THUSHARA JAMES - SR.G.P.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.12867/2016 2
JUDGMENT
The petitioner has approached this Court claiming to be the
Convenor of 'Mavadi Public-Chira Samrakshana Samithy' which
according to the petitioner was formed by the people of the locality to
protect the public- chira situated at Mavadi junction. According to the
petitioner, chira (hereinafter referred to as 'the pond') is situated in
Government property as per the Basic Tax Register. The petitioner
states that the pond is the main source of water storage in the area and
several people are depending on it for their daily needs. The
petitioner apprehends that respondents 5 and 6 who are office bearers
of the local NSS Karayogam which is also in the management of the
Mavadi Sree Krishna Swamy Temple' are attempting to convert the
pond by filling up the pond. It is stated in Court that the attempt is to
convert the pond and construct a commercial building. It is submitted
that the earlier attempts to convert the pond were prevented by the
intervention of the local people. The petitioner has thus approached
this Court stating that since the general election had been notified (at
the time when the writ petition was filed) and since the Government
officials were busy in pre-election work, further attempts are being
made to convert the pond by filling up the same. The petitioner,
therefore, sought the following reliefs from this Court:-
"1. issue a writ of mandamus or any other appropriate writ,
order or direction, directing the 1 st respondent to consider Ext.P2
representation and take appropriate action on it immediately;
ii. issue a writ of mandamus or any other appropriate writ,
order or direction, directing the respondents 1 to 4 to take
effective steps to conserve and maintain Government chira as
such in Re-survey 246/1 in Block No.10 of Kulakkada Village;
iii. issue an order directing the respondents 5 and 6 not to fill up
or reclaim the Government chira in Re-survey 246/1 in Block
No.10 of Kulakkada Village and
iv. to pass such other appropriate writ, order or direction to the
respondents, which this Hon'ble Court may deem fit and proper
on the facts of the case."
2. Heard the learned Government Pleader and the learned
counsel appearing for respondents 5 and 6.
3. The learned counsel appearing for respondents 5 and 6
would submit that the pond is part of 'Mavadi Sree Krishna Swamy
Temple' and the said pond is the temple pond. It is submitted that the
land in which the pond is situated has been in the possession and
enjoyment of the temple from time immemorial. It is submitted that
there are several records which would establish that the pond is part of
the temple property. It is submitted that there is no attempt of any
sort to convert the pond as alleged by the petitioner and no such
conversion will be permitted by respondents 5 and 6.
4. A counter affidavit has been filed by respondent 5 and 6
where it is stated that the averments in the writ petition are false and
incorrect. It is submitted that the property in old Sy. No.357/2A
originally belonged to the Plankulath Madom and from the ownership
and possession of the Plankulath Madom the property devolved upon
the Cherukara Madom. It is submitted that the members of the
Cherukara Madom as per registered document No.1781/1121 ME
(corresponding to 1945 CE) transferred the property to NSS
Karayogam No.656 and since then the temple, the pond and 2.50 acres
of property in which the temple is situated is in the absolute
ownership and possession of the NSS Karayogam. It is submitted that
even in document No.1781/1121 ME, it is stated that the property is
wrongly described as 'Government Puramboke' and there is a recital in
the said document that the Karayogam shall take steps to correct the
mistake and mutate the property in the name of the Karayogam. It is
submitted that the property corresponding to old Sy.No.357/2A is now
included in Re.Sy.No.246/1, 4 in Block No.10 of Kulakada Village. It is
submitted that an application was filed as early as in the year 2003 to
make corrections in the revenue records. It is submitted that
Ext.R6(a) certificate and Ext.R6(b) report of the Village Officer,
Kulakada dated 24.2.2003 and 21.7.2008 respectively will indicate
that the property is in the absolute ownership and possession of
No.656 NSS Karayogam. It is stated that the averment in paragraph 3
of the writ petition that the office bearers of the NSS Karayogam are
attempting to convert the Government Chira is absolutely incorrect. It
is submitted that while renovating the temple, it was revealed in the
Devaprasanam that the pond is full of garbage and accordingly,
decision was taken as early as on 1.2.2009 to clean the pond. It is
stated that the averment in the writ petition that the temple pond is
the only source of water in the Mavady area is incorrect. It is stated
that the statement that the pond is situated in a highly commercial
area is also incorrect. It is stated that the pond was constructed by the
NSS Karayogam as early as in the year 1955 and in the meeting held on
21.3.1954, the Karayogam had decided to convene a general body to
take a decision in the matter of construction of the pond. It is
submitted that in the general body meeting held on 8.7.1956, it is
agreed that the soil from the place where the pond was dug will be
used to fill up the temple compound. It is stated that on 27.1.1957, a
decision was taken by the Karayogam Committee to construct steps
leading to the temple pond by spending a sum of Rs.1300/-. It is
stated that respondents 5 and 6 have not taken any decision to fill up
and reclaim the pond. It is stated that the Kulakada Grama
Panchayath had attempted to construct a road through the temple
property and the NSS Karayogam represented by its then Secretary
had filed an O.S.No.117/2003 for a decree of permanent prohibitory
injunction. It is stated that Ext.R6(d) is the commission report in the
said suit which was later decreed by the Munsiff Court in favour of the
NSS Karayogam. It is stated that the decree has become final. It is
stated that the copy of the judgment in O.S.No.117/2003 dated
28.3.2006 on the file of the Munsiff Court, Kottarakara is on record as
Ext.R6 (e). Respondents 5 and 6 have also placed on record a report
filed by the Village Officer, Kulakada on 15.6.2024 which indicates that
the pond in question is in the possession of Poovattur Padinjaru NSS
Karayogam.
5. The learned Government Pleader on instructions would
submit that there is already a prohibitory order issued by the Village
Officer on 16.2.2009 prohibiting conversion of pond in any manner
and the said prohibitory order is still in force.
6. Having heard the learned counsel for the petitioner and the
learned Government Pleader appearing for respondents 1 to 4 and the
learned counsel appearing for respondents 5 and 6, I am of the opinion
that the petitioner is not entitled to any relief as sought for in the writ
petition. It is clear from the documents produced as Ext.R6(a) to R6(f)
that the pond in respect of which the reliefs are sought has been in the
possession and enjoyment of respondents 5 and 6 from time
immemorial. The pond was constructed in the year 1955 for use of the
temple. Moreover, respondents 5 and 6 have undertaken before this
Court that they do not intend to take any steps to convert the pond in
any manner. This is recorded. Respondents 5 and 6 will ensure that
the pond will be maintained as it is preserving its current status.
Respondents 5 and 6 will also ensure that the pond is suitably
protected from dumping of waste and they shall ensure that the pond
is kept clean and tidy at all times.
The writ petition will stand ordered accordingly.
Sd/-
GOPINATH P.
JUDGE
acd
APPENDIX OF WP(C) 12867/2016
PETITIONER EXHIBITS
EXT:P1 A TRUE COPY OF THE BTR OF THE PROPERTY IN
RE-SURVEY NO.246/1 IN BLOCK
NO.10KULAKKADA VILLAGE.
EXT:P2 A TRUE COPY OF THE REPRESENTATION DATED
28.03.2016 BEFORE THE 1ST RESPONDENT.
RESPONDENT EXHIBITS
Exhibit R6 ( a ) True copy of the report of the village
officer dated 24-2-2003 in respect of the
properties of temple
Exhibit R6 ( b ) True copy of the report by the village
officer to additional Tahasildar
kottarakara in the mutation application ,
dated 21-7-2008.
Exhibit R6 (c) True copy of the photographs showing the
temple.
Exhibit R6 (d ) True copy of the report filed by the
Advocate Commissioner in O.S. 117/2003
before Munsiff Court, Kottarakara dated
06.03.2003.
Exhibit R6 (e) - True copy of the judgment in O.S.
117/2003 dated 28/3/2006 before Munsiffs
Court, Kottarakara
Exhibit R6 (f ) True copy of the report of the village
officer dt.15-6-2024.
