Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 15TH DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943 WP(C) NO. 24041 OF 2021 PETITIONERS: 1 BINOY BENJAMIN, AGED 39 YEARS KAVILAYIL, SAKTHIKULANGARA, KOLLAM PIN 691 581 2 BENNY JOHNSON, BADANI VILLA, ALUVILA, SAKTHIKULANGARA, KOLLAM PIN 691 581 BY ADVS. V.PREMCHAND SURYA MOHAN P. RESPONDENTS:
1 THE STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY, GOVERNMENT OF KERALA, WATER RESOURCES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM PIN 695 001 2 THE DISTRICT COLLECTOR, KOLLAM PIN 691 013 3 THE EXECUTIVE ENGINEER, INLAND NAVIGATION SUB DIVISION, DIRECTORATE OF INLAND NAVIGATION, KOLLAM DISTRICT, PIN 4 THE ASSISTANT EXECUTIVE ENGINEER, INLAND NAVIGATION SUB DIVISION, DIRECTORATE OF INLAND NAVIGATION, KOLLAM DISTRICT PIN 691 001
SR GP SMT AMMINIKKUTTY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
The petitioners say that they are co-owners of the property involved in this case, against which Exts.P3 and P4 notices have been issued by the 4th respondent, asking them to evict from the same within the time frame mentioned therein. They allege that, as
is evident from Exts.P3 and P4, the said notices have been issued under Section 12 of the Kerala Land Conservancy Act, 1958 (‘LC Act’ for short) as also the Kerala Irrigation and Water Conservation Act, 2003 (‘WC Act’ for short) and therefore, that the 4th respondent does not obtain any jurisdiction to have issued the same. They further contend that since they are only co-owners, going by Section 9 of the ‘WC Act’, every other co-owner ought to have been issued with the notice, but that this has been violated when Exts.P3 and P4 have been issued.
2. Sri.V.Premchand - learned counsel for the petitioners,
added to the afore submissions, by saying that in any event of the matter, there is nothing on record to conclusively prove that his clients or other co-owners have encroached into Government land or to a waterway; and consequently, that the proceedings under the aforementioned Acts could not have been invoked against them. He argued that Exts.P3 and P4 have been issued in a peremptory manner, without following the due procedure and thus reiteratingly prayed that this Writ Petition be allowed.
3. Smt.K.Amminikutty - learned Senior Government Pleader,
answered the afore submissions, asserting that the 4th respondent certainly has the competence under the ‘WC Act’, while the District Collector is the competent Authority under the ‘LC Act’. She submitted that the impugned notices have been issued after following due procedure and after hearing the petitioners and therefore, that they cannot have any cause against the same. She added that Exts.P3 and P4 have been issued on a conjoined reading of the applicable provisions of the afore two Acts and therefore, prayed that this Writ Petition be dismissed.
4. When I evaluate the afore submissions, I am afraid that I cannot find favour with Smt.K.Amminikutty immediately because, neither Exts.P3 or P4 would show that the petitioners or the other
co-owners had been issued any notice. On the question of competence, it is without doubt that as far as the ‘LC Act’ is concerned, the District Collector has jurisdiction while the 4th respondent would obtain such right under the ‘WC Act’. Obviously, therefore, both Authorities are obligated to act if any complaint is received with respect to encroachments of either Government land or waterway by the petitioners or other co-owners, and I cannot blame them for having initiated such action in terms of law. However, as I have already said above, Exts.P3 and P4 do not reflect that the process, under either the ‘LC Act’ or the ‘WC Act’, have been completed properly.
In the afore perspective, I order this Writ Petition and set aside Exts.P3 and P4; however, leaving full liberty to the 4th respondent - Assistant Executive Engineer to act as per the ‘WC Act’, as also to the 2nd respondent - District Collector to act as per the ‘LC Act’, as they may be advised, based on all germane and relevant inputs and after notifying the petitioner as also the other co-owners appropriately in terms of the aforementioned Statutes. The afore exercise shall be completed by either the 4th
respondent or the 2nd respondent or both of them, depending upon whether encroachments are found to be on ‘purambokku’ land or on a waterway; thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible but not later than three months from the date of receipt of a copy of this judgment.
Needless to say, until such time as the afore exercise is completed and resultant order communicated to the petitioners, both sides will maintain status quo with respect to the property, without changing its lie or nature and without making any additional development or construction thereon. At this time, Smt.K.Amminikutty - learned Senior Government Pleader, submitted that, going by the relevant notifications, the 4th respondent also has jurisdiction under the ‘LC Act’.
If this be so, certainly, the resultant order will reflect the said power, if action is taken by the said Authority. Sd/- RR DEVAN RAMACHANDRAN JUDGE APPENDIX OF WP(C) 24041/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE DOCUMENT NO. 17/2020 OF ANJAALAMOODU SRO DATED 07=01-02021 Exhibit P2 TRUE COPY OF THE PATTA DATED NIL ISSUED TO THE FATHER OF THE VENDOR OF PETITIONERS. Exhibit P3 TRUE COPY OF THE NOTICE DATED 23-10-2021 ISSUED UNDER SECTION 12 OF THE KERALA LAND CONSERVANCY ACT 1958 Exhibit P4 TRUE COPY OF THE NOTICE DATED 27-10-2021 ISSUED UNDER SECTION 12 OF THE KERALA LAND CONSERVANCY ACT 1958 Exhibit P5 PHOTOGRAPH REVEALONG INSPECTION OF THE PROPERTY ON 26-10-2021 Exhibit P6 PHOTOGRAPH REVEALING INSPECTION OF THE PROPERTY ON 26-10-2021