Kerala High Court
Abraham Kosy vs State Of Kerala on 17 March, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. NITIN JAMDAR
&
THE HONOURABLE MR. JUSTICE S.MANU
Monday, the 17th day of March 2025 / 26th Phalguna, 1946
WP(C) NO. 6020 OF 2020 (B)
PETITIONER:
ABRAHAM KOSY AGED 63 YEARS S/O.C.K.KOSY, PALLATH CHITTAKKATTU,
VENMONY.P.O, CHENGANNUR, ALAPPUZHA DISTRICT, KERALA-689509
RESPONDENTS:
1. STATE OF KERALA REP. BY ITS SECRETARY TO DEPARTMENT OF REVENUE,
SECRETARIAT, THIRUVANANTHAPURAM
2. DISTRICT COLLECTOR, CIVIL STATION, CIVIL STATION WARD, ALAPPUZHA,
KERALA-688001
3. THAHSILDAR TALUK OFFICE, NEAR MINI CIVIL STATION, CHENGANNUR,
KERALA-689121
4. VILLAGE OFFICER VENMANI VILLAGE, ALEPPEY KERALA-698509
5. SECRETARY VENMANI GRAMA PANCHYATH, VENMANI, ALEPPEY, KERALA-698509
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to stay the operation of Exhibits P4, P6, P8 and P10 till the
disposal of the Writ petition (Civil), in the interest of justice.
This petition again coming on for orders upon perusing the petition
and the affidavit filed in support of WP(C) and this court's order dated
14/02/2025 and upon hearing the arguments of M/S BENOY K.KADAVAN and
K.S.SREEKALA, Advocates for the petitioners, MR. K.P.HARISH,SENIOR
GOVERNMENT PLEADER for R1 to R4 and of SHRI.MANOJ RAMASWAMY ,Advocate for
R5, the court passed the following:
W.P(C)No.34824 of 2022 & conn.cases
1
NITIN JAMDAR, C.J. & S. MANU, J.
=-=-=-=-=-=-=-=-=-=-=-=-=-=
W.P(C)No.34824 of 2022,
W.P(C)Nos.5822, 6020, 7438, 8778 of 2020
and
W.P(C)No.4034 of 2021
=-=-=-=-=-=-=-=-=-=-=-=-=-=
Dated this the 17th day of March, 2025
ORDER
Nitin Jamdar, C.J.
Heard Ms.Rema Smrithi representing Mr.V.M.Krishnakumar,
learned counsel for the Petitioners in W.P(C)No.34824 of 2022 and
Mr.K.P.Harish, learned Senior Government Pleader appearing for the State
2. On 2 November 2022, the following order was passed in
W.P(C)No.34824 of 2022:
"Instant writ petition is filed for the following reliefs:-
" i. Call for records leading to Exhibit P2 and issue
a writ in the nature of certiorari quashing Exhibit P2
order in so far as it delegates the authority to remove
encroachments from the Utharappalliyar and its river
banks to the Secretaries of local panchayths;
ii. Issue a writ in the nature of mandamus
commanding the 2nd and 3rd Respondents to
complete the survey and the demarcation of the
boundaries of Uttarappalliyar river in Cheriyanadu,
Puliyoor, Ennaykkadu villages and to erect juntas
marking the boundaries of the river, as is shown in the
W.P(C)No.34824 of 2022 & conn.cases
relevant litho maps;
iii. Issue a writ in the nature of mandamus
commanding the 2nd and 3rd Respondents to
complete the dredging activities to restore the
Uttarappalliyar river in Ala and Venmony villages
where survey and demarcation of boundaries is
complete;
iv. Issue a writ in the nature of mandamus
commanding the 2nd and 3rd Respondents to initiate
necessary action under Land Conservancy Act or
other laws against those who have encroached into the
areas of Uttarappalliyar river shown in the litho maps
and evict the encroachers within such time as may be
fixed by this Hon'ble Court;
v. Issue a writ in the nature of mandamus commanding
the 2nd and 3rd Respondents to take appropriate
action in cases where portions of Uttarappalliyar river
as shown in the litho maps have already been assigned,
to acquire such lands to ensure the uninterrupted flow
of the river; within such time as may be fixed by this
Hon'ble Court;
vi. Issue a writ in the nature of mandamus
commanding the 3rd Respondent to consider and pass
orders on Exhibit P6 representation, after affording an
opportunity of hearing to the Petitioner's
representatives, within such time as this Hon'ble
Court may deem fit."
2. Short facts leading to the filing of the writ petition are as
follows:-
a) This public interest writ petition is filed by a registered
W.P(C)No.34824 of 2022 & conn.cases
association of residents of the watershed area of
Uttarappalliyar River in Alappuzha District. According to
the petitioners, the river starts from Achankovilattu in
Venmony Village and flows through Ala, Cheriyanadu,
Puliyoor, Ennaykkadu Villages to join the river Pampa in
Budhanur Village. The river had been the source of water for
approximately 2500 acres of land in these Villages, suitable
for agriculture and other domestic uses.
b) Petitioners have submitted that over time, the flow of
water was devastatingly blocked, on account of intermittent
encroachments and excavation of sand. This leads to major
health hazards. The blockage in the flow of water also results
in annual floods, affecting traffic and daily lives. Petitioners
have been at the forefront of the agitation to restore the river
to its former form for over a decade. The major demands
were that the extent of the river be accurately surveyed as per
the old sketches and plan, unauthorized encroachers in its
area are evicted, land that has been assigned from the river
area at market value is recovered, and boundaries of the river
be demarcated.
c) Petitioners have further submitted that as per the
information from Central Survey Office, regarding the
existence of the Uttarappalliyar in five Villages, it is clear that
the maps of all the above Villages confirm the same.
Petitioners were informed by a letter from the Chief
Engineer's Office, Department of Irrigation, that a proposal
regarding the restoration of the river has been forwarded by
the department of major irrigation and that the department
of revenue has requested the re-survey department to
measure its boundaries.
d) Petitioners have also submitted that consequent to the
aforesaid reports, petitioners filed another representation
W.P(C)No.34824 of 2022 & conn.cases
before the Minister for Revenue dated 08.06.2017.
Petitioners had specifically demanded that to prevent further
encroachment of the river, its boundaries should be clearly
demarcated by erecting juntas. Thus, the petitioners filed a
representation before the Chief Secretary, Government
Secretariat, Thiruvananthapuram, the 1st respondent. When
no action was taken on the said representation, petitioners
filed W. P. (C) No. 40344 of 2018.
e) It is further submitted that this Court disposed of the
said writ petition directing the Secretary, Department of
Revenue, Thiruvananthapuram, the 2nd respondent herein,
to hear the petitioners and pass a speaking order. Accordingly,
the 2nd respondent passed a detailed order dated 23.02.2022
directing the District Collector, Alappuzha, the 3rd
respondent herein, to hand over survey records and details of
encroachers to Secretaries of respective Panchayats. It is
submitted that the said order is against a series of judgments
of this Court which lays down that the District Collector is
the authority under the Kerala Land Conservancy Act, 1957,
who should take action against illegal encroachers. Aggrieved
by order of the Secretary, Department of Revenue,
Thiruvananthapuram, the 2nd respondent, this writ petition
is filed.
3. Inviting the attention of this Court to paragraph No. 6 of the
judgment in W. P. (C) No. 5756 of 2017 dated 01.02.2021, Mr.
Renjith Thampan, learned Senior Counsel appearing for the
petitioners, submitted that though the District Collector,
Alappuzha, the 2nd respondent therein, has been directed to take
action for removing the encroachment on either side of Madayam
Thodu in Komalapuram Village, the same has not been done, and
hence, the present writ petition.
4. Proceedings of the Tahsildar (LR), Ambalappuzha dated
W.P(C)No.34824 of 2022 & conn.cases
15.01.2021 and the directions issued in W. P. (C) No. 5756 of 2017
dated 01.02.2021, are reproduced:-
"5. Affidavit of the District Collector, Alappuzha, the 2nd
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
W.P(C)No.34824 of 2022 & conn.cases
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 coordination 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 2nd 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
W.P(C)No.34824 of 2022 & conn.cases
documents."
5. Mr. K. P. Harish, learned Senior Government Pleader, who
takes notice for respondents 1 to 4, seeks time to file statement.
6. Mr. Manoj Ramaswamy, learned Standing Counsel, takes
notice for the Venmony Panchayat, the 5th respondent.
Issue notice by speed post to respondents 6 to 8, returnable in
two weeks."
3. Yet another order was passed in W.P(C)No.34824 of 2022, on 8
December 2022, which reads as follows :
"The District Collector, Alappuzha, has filed a detailed counter
affidavit dated 07.12.2022 along with supporting documents as
regards the steps taken to survey and to remove the encroachers.
2. Mr.K.P. Harish, learned Senior Government Pleader
submitted that the area of encroachment falls within five
Panchayats and that the Secretaries of the Grama Panchayat have
been instructed to take appropriate action for eviction.
3. However, Mr.Ranjith Thampan, learned Senior Counsel
appearing for the petitioner submitted that the District
Collector being the head of the Panchayat administration in the
Districts, has a duty to remove the encroachers. He also relied on
a decision of this court in W.P.(C)No.5756 of 2017 dated
01.02.2021.
4. Be that as it may, pending disposal of the writ petition,
I.A.No.1 of 2022 has been filed to implead Budhanoor Grama
Panchayath, Budhanoor P.O., Alappuzha - 689 510,
represented by its Secretary, as additional respondent No.9 in
the writ petition.
W.P(C)No.34824 of 2022 & conn.cases
5. Reasons assigned in the affidavit filed in support of the
application are as under:
"2. The above public interest litigation is moved by
a registered association of residents of the watershed
area of Uttarappalliyar River in the district of
Alappuzha. The river starts from Achankovilattu in
Venmony village and flows through Ala,
Cheriyanadu, Puliyoor, Ennaykkadu villages to join
the river Pampa in Budhanoor panchayath in
Budhanoor village. Budhanoor Gramapanchayath
is a necessary party in the above writ petition. But
because of inadvertent omission Budhanur
panchayath was not included in the party array.
Hence I am filing a petition to implead Budhanoor
Gramapanchayath as additional 9th respondent.
There is no willful laches or negligence on my part
in this regard."
6. Having satisfied with the reasons assigned, I.A.No.1 of 2022
is ordered. Budhanoor Grama Panchayath is impleaded as
additional respondent No.9 in the writ petition. Registry is
directed to make necessary amendments wherever required.
7. Issue notice to the additional respondent by speed post
returnable in two weeks.
8. Let all the Panchayats to file their respective counter
affidavits within two weeks from today.
Post after two weeks. Petitioner is directed to take steps for
service of additional respondent No.9."
Thereafter, the matter was adjourned twice granting time to the
Respondents to file their counter. On 12 March 2024, the following order
W.P(C)No.34824 of 2022 & conn.cases
was passed in the very same Writ Petition, recording dissatisfaction with the
inaction of the Respondents in not taking steps to remove the illegal
encroachment:
" We are not satisfied with the so called action by the
respondents. We expect that some concrete steps would
be taken by the respondent authorities to remove the
illegal encroachments. For the same, a report shall be filed
before this Court.
Post on 4/4/2024."
(emphasis supplied)
4. On 20 June 2024, time was granted to the Respondents as last chance
to file a counter affidavit stating the action taken in the matter. On 23
January 2025, time was sought by the learned Government Pleader on the
ground that no instructions were received from the Additional Chief
Secretary regarding the explanations called for by the local Authorities. On
31 January 2025, a further order was passed in the aforesaid Writ Petition
as under :
"Heard Mr. K. P. Harish, learned Senior Government Pleader.
2. At the request of the learned Senior Government Pleader,
based on the instructions received from the Under Secretary,
two weeks' time is granted.
3. If the Government is not receiving explanations from the
local authority, then, it is open to the Government to take
W.P(C)No.34824 of 2022 & conn.cases
necessary coercive measures to ensure that explanations are
received and there is no further delay.
4. Post the petitions on 14 February 2025."
(emphasis supplied)
5. Finally, on 14 February 2025, the following order was passed in the
aforesaid Writ Petition :
"Heard Ms. Maya M., learned counsel for the Petitioners in
W. P. (C) No. 34824 of 2022, Mr. Binoy K. Kadavan, learned
counsel for the Petitioners in W. P. (C) Nos. 5822, 6020 and
7438 of 2020, Mr. George Varghese Perumpallikuttiyil,
learned counsel for the Petitioners in W. P. (C) No. 8778 of
2020, Ms. Jolima, learned counsel representing Mr. Manoj
Ramaswamy, learned Standing Counsel for the Venmony
Grama Panchayat, Ms. K. P. Susmitha, learned counsel for
Respondent Nos. 6 to 9 in W. P. (C) No. 34824 of 2022 and
Mr. K. P. Harish, learned Senior Government Pleader
appearing for the State.
2. Learned Senior Government Pleader seeks time stating
that responses from all the Panchayats are still not received,
however, responses from some Panchayats have been
received. He further states that the District Collector has
been directed to look into the issue.
3. This means that there has been hardly any progress from
the date this Court passed the order on 8 December 2022
where the very same arguments on behalf of the State were
made that the area of encroachment falls within five
Panchayats and Secretaries of the Panchayats have been
instructed to take action. On 31 January 2025, while
granting two weeks time at the request of the learned Senior
W.P(C)No.34824 of 2022 & conn.cases
Government Pleader, we noted that if the Government is not
receiving explanations from the local authority, then it is
open to the State to take necessary coercive measures. The
State has ample disciplinary powers if its directions are not
being complied with.
4. As noted, it is now more than three years since the State
itself has not received explanations from the Secretaries of the
Panchayats. In these circumstances, not exercising deterrent
power which vests with the State gives us an impression that
the State is contributing to the delay. If no deterrent action is
taken against the Secretaries of the Panchayats, we will have
to presume disobedience on the part of the concerned officer
of the State Government. To avoid such coercive action
against the concerned officer of the Government, it is
expected that either the steps are taken by the local
authorities or the deterrent action is taken by the State for
failure of the same.
5. Post the petitions on 17 March 2025. Learned Senior
Government Pleader states that a copy of this order will be
forwarded to the concerned Secretary."
(emphasis supplied)
6. The order dated 14 February 2025 was passed in the backdrop of the
earlier orders, which we have reproduced hereinabove. The State is not
contending before us that there are no encroachments or there are no
illegalities. That being the position, the State is expected to take necessary
remedial measures in the matter. On some ground or the other, time was
sought, which led us to observe in the order dated 14 February 2025 that
this gives the impression that the State is contributing to the delay in
W.P(C)No.34824 of 2022 & conn.cases
removing the encroachment.
7. Today, the learned Senior Government Pleader showed us some
written instructions dated 17 March 2025, i.e., today, when we have
granted four weeks' time to the State. This communication only states that
there should be a joint investigation and the learned Senior Government
Pleader seeks further time. It is clear to us that even after noting that there
are illegalities, the State is not taking action.
8. We direct the concerned Secretary to file an affidavit placing on
record a commitment regarding the timeline within which the State will
ensure compliance with its own merits, as reproduced in the earlier order.
If no affidavit is filed, the concerned Secretary will remain present in the
Court to give instructions to the learned Senior Government Pleader
regarding the commitment to be made.
9. Post on 25 March 2025.
Sd/-
NITIN JAMDAR
CHIEF JUSTICE
Sd/-
S. MANU
JUDGE
vgd/17.03.25
17-03-2025 /True Copy/ Assistant Registrar
