DR. R. GOPINATHAN v. DISTRICT COLLECTOR, ALAPPUZHA; TAHSILDAR, KARTHIKAPPALLY TALUK; VILLAGE OFFICER, PATHIYOOR; PATHIYOOR GRAMA PANCHAYATH (represented by its Secretary); REJI CHERIYAN; SAJI CHERIYAN; V. PRAMOD KUMAR

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 10TH DAY OF MARCH 2020 / 20TH PHALGUNA, 1941** **WP(C).No.14717 OF 2019(L)** ## **PETITIONER/S:** **DR.R.GOPINATHAN, AGED 65 YEARS PRAKRITI HOUSE, GANDHINAGAR, MANNUTHY P.O, THRISSUR DISTRICT-680 651** **BY ADVS. SRI.S.PRASANTH (AYYAPPANKAVU) SMT.VARSHA BHASKAR SRI.JYOTHISH D.MONY** ## **RESPONDENT/S:** |**1**|**DISTRICT COLLECTOR**| |---|---| ||**CIVIL STATION, ALAPPUZHA-688 001**| |**2**|**THE TAHSILDAR,**| ||**KARTHIKAPPILLY TALUK, ALAPPUZHA-690 514**| |**3**|**THE VILLAGE OFFICER,**| ||**PATHIYOOR, KEERIKKAD P.O, KARTHIKAPPALLY,**| ||**ALAPPUZHA-688 004**| |**4**|**PATHIYOOR GRAMA PANCHAYATH,**| ||**REPRESENTED BY ITS SECRETARY, PATHIYOOR,**| ||**ALAPPUZHA DIST.-690 508**| |**5**|**REJI CHERIYAN**| ||**THOOVAMPALLIL HOUSE, PATHIYOOR WEST,**| ||**KAYAMKULAM, ALAPPUZHA DIST-690 508**| WP(C) No.14717/2019 ..2.. - **6 SAJI CHERIYAN, THOOVAMPALLIL HOUSE, PATHIYOOR WEST, KAYAMKULAM, ALAPPUZHA DIST.-690 508** - **7 V. PRAMOD KUMAR, IDANILATHU HOUSE, PATHIYOOR WEST, KAYAMKULAM, ALAPPUZHA DIST.-690 508** **R1-3 BY GOVERNMENT PLEADER R4 BY ADV. SRI.RENJIT GEORGE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.14717/2019 ..3.. ## **J U D G M E N T** ## S.Manikumar, CJ. Contending inter alia that respondents 5 to 7 have encroached upon a portion of Polachal canal, Guru Mandiram Canal and nearby areas and placing reliance on a decision of the Hon'ble Supreme Court in **M.C. Mehta** v. **Kamal Nath** [1997 (1) SCC 388], instant writ petition has been filed for a writ of mandamus, directing respondents 1 to 4 to conduct a resurvey of Polachal canal and its feeder canals including Guru Mandiram canal and to evict encroachments. There are further prayers to issue writs of mandamus directing respondents 1 to 4 to restore Polachal canal and its feeder canals including Gurumandiram canal to its width and extent as per the BTR and to evict the encroachments committed by the respondents 5 to 7 in Polachal canal, Guru Mandiram canal and nearby areas. A further direction has been sought for directing the 4[th] respondents to consider and pass orders on Ext.P1 representation. 2. Record of proceedings shows that on 29.05.2019, a Hon'ble Division Bench of this Court has directed the 2[nd] respondent – Tahsildar to undertake the demarcation exercise within a time frame based on Ext.P2 application. Subsequently, on 02.09.2019, on the basis of the WP(C) No.14717/2019 ..4.. submission made by the learned Government Pleader that in order to survey the entire stretch of the Polachal thodu covering a distance of ¾ kilometers, additional survey will have to be undertaken for which, the District Collector has made necessary arrangements, learned counsel appearing for the respondents has sought for time to produce the report as well as the sketch map following the part survey already conducted. 3. On this day, when the matter came up for further hearing, inviting the attention of this Court to the averments made in an unnumbered IA filed by the petitioner for appointment of an Advocate Commissioner, submission was made. The said application has been filed seeking the following reliefs: “1. to ascertain the encroachments made in the banks of Polachal Canal and its drainage canals in Pathiyoor Grama Panchayath by private parties including respondents 5 to 7 and Government authorities; 2. to ascertain drainage and storage functions of Polachal canal and its feeder canals including Guru Mandiram canal from Pathiyoor-Karipuzha Ullitta Puncha to Kayamkulam Canal; 3. to ascertain narrowing of the Polachal Canal and feeder canals in Pathiyoor Grama Panchayath by concrete pitching; 4. to ascertain such other matters with respect to the state of water bodies in Pathiyoor Panchayath as requested by the petitioner at the time of inspection.” WP(C) No.14717/2019 ..5.. 4. On the other hand, inviting the attention of this Court to the statement and report filed by Sri.Prasad A., Tahsildar (LR) – the 2[nd] respondent, learned Government Pleader submitted that a survey has been conducted with the assistance of three surveyors, covering ¾ km of Polachal canal. It is further submitted that, additional survey process has been conducted in Re.Sy.Nos.552/1, 553/1 & 543 in Block 21 of Pathiyor Village, which is seen as thodu puramboke (Polachal canal) as per resurvey records. Insofar as the allegation against respondents 5 to 7 is concerned, it is categorically stated that there is no encroachment by them. However, some other persons, viz., Smt.Prema, w/o K.K.Santhosh, Sree Nikethan, Thekke Mankuzhi Muri, Bharanikavu Village and Sri.Binu Prabhakaran, Thachadiyil, Pathiyoor Village, have encroached upon 00.00.31 hectare in Sy.No.553/1 and 00.00.28 hectare in Sy.No.543 of the Puramboke land respectively. 5. Statement filed by the 2[nd] respondent reads as hereunder: “1. By order dated 29.5.2019 this Hon'ble Court was pleased to issue certain directions to the 20 respondent Tahsildar to undertake the demarcation exercise within a month relating to the alleged encroachment and degradation of Polachal canal passing through the 4[th] respondent pathiyoor grama Panchayat. 2. On the basis of this case the matter was enquired through the village officer, Pathiyoor and came to know that the Polachal canal has WP(C) No.14717/2019 ..6.. about 3.5 KM length and it is essential to conduct a detailed survey for finding out whether any encroachments were made by respondents 5 to 7. As per the request from this office, the District Collector posted four Surveyors additionally for this works and completed the survey works of the above said thodu puramboke in a time bound manner and submitted detailed report with sketch on 24.6.2019. 3. Survey process have been conducted in re-survey Nos. 191, 190, 187, 186, 183, 204, 206, 207,212,218, 220, 219, 240,241, 555/1, 554/1, 553/1, 552/1, 543/2, 528/15, 527/7, 527/8, 542/1, 541/1 in block no.21 of Pathiyoor village which is seen thodu puramboke (Polachal thodu) as per Re.survey records. As per surveyor's report, it is seen that Sri. K.K.Santhosh and his wife Smt.S. Prema, Sree Nikethan, Thekkemankuizhi muri, Bharanikavu village encroached 00.0031 hectors in re.sy.553/1, Sri. Binu Prabhakaran and his wife Smt. Shyni Binu, Thachadiyil, Pathiyoor village encroached 00.0084 hect. in sy.no.542/1, Sri.Binu Prabhakaran, Thachadiyil, Pathiyoor village encroached 00.0028 hect. in sy.no 543/2, Sri.Ajikumar, Aji Bhavanam, Pathiuyoor village encroached 00.0040 hect. In Sy.No.528/15 and Sr.Soman, Kunnumel Kizhaklkathil, Eruva Muri Pathiyoor village encroached 00.0217 hect. Insy.no.541/1 of the said puramboke land. On the report, it is seen that respondents 5 to 7 have not encroached any portion of the Polacheal thodu. 4. According to the order dated 29.5.2019 of Hon'ble High Court of Kerala, the Tahsildar, Karthikappally is directed to conduct a survey for finding Out encroachment of the Polachal canal. Hence a team of surveyors posted by the District Collector as per the request from this office and they completed the work in a time bound manner. On the report, it is seen that there is no encroachments by respondents 5 to 7 in any portion of the Polachal Thodu which is Government puramboke land. WP(C) No.14717/2019 ..7.. Steps have been initiated as per the KLC Act, when the petitioner filed WPC 3134/19 before this Hon'ble Court. 5. It is submitted that the President, Pathiyoor Grama Panchayath has submitted an application on 14.01.2019 for the demarcation of Polachal canal. Since major portions of the above said canal are seen on the state of heath, the boundary can only be determined after removing the bush and weeds. Directions were given to the Secretary, Pathiryoor Grama Panchayat to clear the barriers in the boundary of the Polachal thodu puramboke with the help for labourers for smooth functioning of the survey process. Moreover, a team of surveyors were to be needed to complete the survey works of Polahcal canal which is about 3 to 4 km. Now the District Collector posted Surveyors additionally for this work and completed the Work in a time bound manner as per the court order dated 29.5.19. The detailed report and sketch was send to the Secretary, Pathiyoor grama Panchayat tor evicting the encroachment. In the light of the aforesaid facts it is submitted that the direction contained in the order have been duly complied with by this respondent and this statement may be treated as a compliance report.” ## 6. Report filed by the 2[nd] respondent is reproduced hereunder: “1. ln the light of the submission made by the Government Pleader that in order to survey the Polachal thodu covering a distance of ¾ km additional survey will have to be taken for which the District Collector has made necessary arrangements, this Hon'ble Court was pleased to pass an order recording the said submission and further granting time to produce the report and sketch of the already conducted survey on the basis of the statement dated 18.7.2019. WP(C) No.14717/2019 ..8.. 2. As regards the already conducted survey covering 3.5 km this Hon'ble Court was pleased to grant 7 days time to produce the report as well as the sketch map. A true copy of the report dated 24.6.2019 signed by 8 surveyors who were engaged in the said survey process is produced herewith and marked as **Annexure R2(a).** The said survey sketch prepared consequent to the survey already conducted covering an area of 3.5 km is also produced herewith and marked as **Annexure R2(b).** 3. Pursuant to the said order dated 02.9.2019 the District Survey Superintendent, Alappuzha has directed to post "3” surveyors of the available "5" surveyors to complete the additional Survey covering ¾ km at the earliest opportunity. Vide proceedings dtd. 27.9.19, surveyors are posted to survey ¾ km portion of the Polachal thodu adjacent to the registered lands owned by the respondents 5 to 7 in the Writ Petition for finding out whether the respondents have encroached any portion of the Polachal thodu. The surveyors submitted the report with detailed coloured sketch, after conducting the additional survey, showing the encroachment found out on the ¾ km portion of Polachal thodu where the respondents are sharing boundary with their registered land. A true copy of the said report signed by three surveyors and the survery sketch are produced herewith and marked as Annexure R2(c) and Annexre R2(d) respectively. 4. It is submitted that the additional survey process has been conducted in re.sy.no.552/1, 553/1, 543 in block 21 of Pathiyor village which is seen thodu puramboke (Polachal thodu) as per resurvey records. Going by the report of the surveyors submitted to me on 01 10 2019, it seen that Smt. Prema, W/o. K.K. Santhosh, Sree Nikethan, Thekke Mankuzhi Muri, Bharanikavu village has encroached 00.00.31 hectare in Sy.no.553/1 and Sri.Binu Prabhakaran, Thachadiyil, Pathiyoor village has encroached 00.00.28 hectare in sy.no.543 of the puramboke land. As per the report, there is no encroachment found on the portion of resurvey WP(C) No.14717/2019 ..9.. no.552/1 of Polachal thodu where the respondents Sri.Pramod Kumar and Reji Cheriyan are sharing boundary with their own land. The said Reji Cherian and Pramod Kumar and are 5[th] and 7[th] respondents respectively in the Writ Petition. The 6[th] respondent Saji Cherian not sharing the boundary and his property is lying behind the property of Reji Cherian, the 5[th] respondent. None of the aforesaid respondents 5,6 and 7 have encroached any portion of the Polachal thodu. 5. It is most respectfully submitted that there occurred a long delay in submitting the report and sketch already conducted, which are produced herewith as annexure R2 (a) and R2(b), which had to be submitted within 7 days of the order dated 02.9.2019. The said delay is neither intentional nor deliberate, but due to administrative exigencies including that of the omission on the part of the concerned Government Pleader, in noting the time limit stipulated in the order, as the order could not be placed before the Government Pleader so as to enable him to take steps for filing the report and sketch. For the said delay this respondent tenders unconditional apology and the same may be accepted.” 7. Along with the report dated 24.06.2019 signed by eight surveyors [Anex.R2(a)], official respondents have filed a true copy of the survey sketch measuring 3.5 km [Anex.R2(b)]. There is yet another report dated 01.10.2019 signed by three surveyors [Anex.R2(c)] along with a true copy of the survey sketch measuring ¾ km [Anex.R2(d)]. 8. We have gone through the reports as well as the survey sketches and are satisfied that the Government have conducted resurvey and additional survey in Re.Sy.Nos.552/1, 553/1 & 543 in WP(C) No.14717/2019 ..10.. Block 21 of Pathiyor Village, which is seen in thodu puramboke (Polachal canal). Though respondents 5 to 7 are alleged to have been encroached on Polachal canal, resurvey and additional survey do not indicate that there is any encroachment by them as alleged. 9. At this juncture, it is relevant to extract Section 114 of the Indian Evidence Act, 1872, which reads as follows: “114. Court may presume existence of certain facts The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.” 10. In respect of the subject property, resurvey and additional survey have been conducted, detailed reports and survey sketches have been filed. Going through the materials on record, we do not find any malafide or illegality in the survey and reports, and thus, there is no necessity warranting appointment of an Advocate Commissioner for the purpose stated afore. Therefore, unnumbered application filed by the petitioner seeking appointment of Advocate Commissioner for the said purpose is rejected. 11. As regards encroachment alleged to have been made by WP(C) No.14717/2019 **==> picture [26 x 8] intentionally omitted <==** respondents 5 to 7, it is found in the resurvey and additional survey conducted by the authorities that there is no such encroachment by them. Insofar as encroachment upon 00.00.31 hectare in Sy.No.553/1 and 00.00.28 hectare in Sy.No.543 of the Puramboke land is concerned, the alleged encroachers, viz., Smt.Prema, w/o K.K.Santhosh, Sree Nikethan, Thekke Mankuzhi Muri, Bharanikavu Village and Sri.Binu Prabhakaran, Thachadiyil, Pathiyoor Village, are not parties to this proceedings. Therefore, we are not inclined to proceed further. However, it is open for the authorities concerned to take action against the encroachers in accordance with law. Placing on record the report and statement along with Annex.R2 series, writ petition is dismissed. ## **Sd/-** **S.MANIKUMAR CHIEF JUSTICE** **Sd/-** ## **SHAJI P.CHALY** **JUDGE** Bka/10.03.2020 WP(C) No.14717/2019 ..12.. ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE REPRESENTATIOR, DATED 05.03.2019 SENT BY THE PETITIONER TO THE 4TH RESPONDENT ALONG WITH TRANSLATION OF TITLES OF PICTURES.** **EXHIBIT P2 TRUE COPY OF THE APPLICATION FOR DEMARCATING BOUNDARY SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 2ND RESPONDENT ALONG WITH TRANSLATION.** **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 8/7/2019 SENT BY THE PETITIONER TO THE 1ST RESPONDENT** **RESPONDENT'S/S EXHIBITS:** **ANNEXURE R2 NIL ANNEXURE R2(A) TRUE COPY OF THE REPORT DATED 24.06.2019 SIGNED BY 8 SURVEYORS. ANNEXURE R2(B) TRUE COPY OF THE SURVEY SKETCH MEASURING 3.5 KM. ANNEXURE R2(C) TRUE COPY OF THE REPORT DATED 01.10.2019 SIGNED BY 3 SURVEYORS. ANNEXURE R2(D) TRUE COPY OF THE SURVEY SKETCH MEASURING 3/4 KM.**