Erattupetta Municipality v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY ,THE 31ST DAY OF JANUARY 2019 / 11TH MAGHA, 1940** ## **WP(C).No. 32542 of 2016** ## **PETITIONER/S:** **THE ERATTUPETTA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, ERATTUPETTA P.O., KOTTAYAM DISTRICT, PIN-686 653.** **BY ADVS. SRI.GEORGEKUTTY MATHEW SRI.BINISH MATHEW** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**REVENUE DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM, PIN-695 001.**| |**2**|**THE DISTRICT COLLECTOR,**| ||**COLLECTORATE, KOTTAYAM, PIN-686 002.**| |**3**|**THE ADDITIONAL TAHSILDAR,**| ||**MEENACHIL, PALAI, PIN-686 576.**| ||**BY SMT. RAJI T.BHASKAR, GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.32542 of 2016 2 ## **JUDGMENT** This writ petition is filed by the petitioner Municipality seeking to quash Ext.P1 order passed by the Additional Tahsildar, Meenachil dated 17.09.2016, whereby it was found that the Secretary of the Municipality is liable along with others for encroaching into a river 'puramboke' belonging to the Revenue Department, and for other consequential reliefs. Brief material facts for the disposal of the writ petition are as follows: 2. According to the petitioner, prior to the conversion as Municipality in the year 2015, it was a Grama Panchayat governed by the provisions of the Kerala Panchayat Raj Acts, 1960 and 1994. As per Sec.82 of 1960 Act and Sec.218 of 1994 Act, all public water courses, the beds and banks of rivers are vested with the Panchayat. There are two rivers viz., 'Teekoy river' originating from the area of Teekoy Grama Panchayat and 'Poonjar river' originating from the area of Poonjar Thekkaka Grama Panchayat, passing through the area of the petitioner Municipality. These rivers confluence at the place namely 'Mukkada' and flows as one river. After the merging, it is called “Meenachil W.P.(C) No.32542 of 2016 3 river” and passes towards western direction through Thalappalam Grama Panchayat. 3. There is some 'puramboku' land adjacent to the 'Teekoy river' situate in Survey No.95, Block No.48 of Erattupetta Village. In view of Sec.82 of Panchayat Raj Act, 1960, and Sec.218 of the Panchayat Raj Act, 1994, the above puramboku land is vested with the Panchayat. During 1998, the Panchayat constructed a building in the above land for the purpose of its Mini Industrial Estate. The above building and the land appurtenant thereto are lying in between the Erattupetta - Thodupuzha State Highway and the Teekoy river. Prior to the construction of the building in the puramboku land, the same was occupied by three families. Yet another portion of the puramboke land was under the possession of a mosque viz., 'Pezhinkadu mosque' owned by Erattupetta Nynarpally Jama-ath. For the construction of the mini industrial estate building, the Erattupetta Grama Panchayat wanted those three families to restrict their occupation to 2.40 Ares of land each. Accordingly, those three families have confined their occupation to the allotted 2.40 Ares by constructing residential houses, and one of those family belong to Scheduled Caste community. The W.P.(C) No.32542 of 2016 4 residential houses were constructed utilizing the funds granted by the Government, and according to the Municipality, the predecessors-in-interest were residing in the property for the past more than 100 years. Other circumstances are also pointed out, justifying the action of the Municipality in occupying the premises. 4. Anyhow, on the conduct of auction of a windfallen tree situated in the property, the 3[rd] respondent, i.e., the additional Tahsildar has issued notice to the Grama Panchayat, stating that, it has no right over the river 'puramboke' and the tree therein. The said notice was challenged before this Court by filing O.P. No.4459 of 1979, which was allowed as per Ext.P2 judgment in ' _**Erattupetta Panchayat v. Tahsildar,**_ _**Meenachil & Others'**_ [1980 KLT 843]. 5. It is the case of the petitioner that, in Ext.P2, it is made clear that the rights of the river puramboke stand considerably altered by the Amendment Act 22 of 1967, under which the vesting of water course, springs etc. mentioned originally in Sections 62 and 82 shall stand transferred to and vest in the Panchayat. However, thereafter, as per Ext.P3 order dated 29.06.1993, the State Government excluded nine W.P.(C) No.32542 of 2016 5 rivers including the Meenachil river from vesting in the Panchayat concerned. Case of the petitioner is that, the said notification is highly arbitrary and illegal, liable to be set aside. Section 80(1) of Act, 1960 do not confer powers on Government of Kerala to exclude the rivers from vesting in the Panchayat. The sum and substance of the contention advanced by the Municipality is that, the action initiated against the Municipality as per Ext.P1 cannot be sustained. 6. A detailed counter affidavit is filed by the 3[rd] respondent, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, as per the judgment in S.L.P (C) No.8519/06 of the apex court, the District Collector, Kottayam has regularized the encroachment by the mosque specified above. Therefore, the proceedings against the illegal encroachment excluding the mosque were continued as per rules, and thereupon, orders have been issued for eviction. The action for eviction from the river puramboke land were taken against the encroachers under the Kerala Land Conservancy Act, and eviction of illegal encroachment from Government property is the primary duty of Additional Tahsildar, and he is bound to do it as a responsible Government W.P.(C) No.32542 of 2016 6 official. Meenachil river puramboke is vested in the Revenue department. Therefore, the remark made by the petitioner that 3[rd] respondent has passed the illegal order cannot be sustained under law. 7. It is also pointed out that, as per the Gazette notification, i.e., Ext.P3 dated 29.06.1993, Government of Kerala, Local Administration (C) Department, the Meenachil river is vested in the Revenue Department. It is also evident from the Resurvey records that an area of 21.20.05 Hectares of land in Re-survey No.95 in Block No.48 of Erattupetta Village is Meenachil river puramboke, which is vested in Government, wherein the illegal encroachment has taken place. Therefore, the Municipality has no manner of authority or power over the Meenachil river. It is also evident from the Re-survey records viz., B.T.R, F.M.B and puramboke register, an extent of 21.20.05 hectares of land in Re-survey No.95 in Block No.48 of Erattupetta Village is Meenachil river puramboke which is vested in Government. It is clearly pointed out in the sketch mahazar report of the Village Officer, Erattupetta that the encroachment is taken place on the river puramboke in Re-survey No.95. That apart, it is submitted that, the Panchayat authorities themselves 7 W.P.(C) No.32542 of 2016 admitted that they had encroached the river puramboke land in Survey No.95, and therefore, the action of the Panchayat is clearly not in accordance with law. Simultaneous action is initiated against other encroachers. 8. I have heard learned counsel for the petitioner and the learned Government Pleader and perused the pleadings and the documents on record. 9. The sole question to be considered is, whether the action proposed against the petitioner Municipality is sustainable under law or not. Even though petitioner has a case that the property is vested with the Panchayat, as per the provisions of the Kerala Panchayat Raj Act, 1960 and Kerala Panchayat Raj Act, 1994, it is evident from Ext.P3 notification that 'Meenachil river' became vested with the State Government, which is dated 29.06.1993. Nobody has challenged the notification. However, petitioner has a case that the river puramboke in question is not part of Meenachil river. But, it is clearly evident from the contention put forth by the 3[rd] respondent in the counter affidavit that the river puramboke in question is included in the Re-survey records like B.T.R, F.M.B and Puramboke Register of Erattupetta Village as 8 W.P.(C) No.32542 of 2016 'Meenachil river puramboke'. Merely because there are certain diversions for the river and named differently, that will not confer a right or authority on the Municipality to enjoy the river puramboke, overlooking Ext.P3 Government notification. Therefore, in sum and substance, by virtue of Ext.P3 notification, the Meenachil river puramboke became vested with the Government. Even though petitioner claimed benefit of Ext.P2 judgment rendered by this Court, the same is of the year 1980, and therefore, consequent to the introduction of Ext.P3 notification, any binding force that was available in accordance with Ext.P2 judgment is no more in force. 10. In that view of the matter, I am of the considered opinion that, the stand adopted by the additional 3[rd] respondent in Ext.P1 cannot be said to be arbitrary or illegal. However, fact remains, the sole petitioner challenging Ext.P1 order before this Court is the Municipality. Consequent to the introduction of Article 243W in the Constitution of India, Municipalities are conferred with more powers, independence and democratic set up, endowing the Municipality with more responsibilities, duties and obligations, and since it is an admitted fact that the W.P.(C) No.32542 of 2016 9 Municipality has constructed an Industrial Area within the puramboke property, I am of the considered opinion that, the State Government will have to consider whether the said property can be provided to the Municipality, in order to carry on the industrial activities, which will protect the interest of other people depending on the Industrial Estate. 11. Moreover, even assuming that there is clear encroachment into the property by the Municipality, the Secretary cannot be mulcted with any penal consequences, since the Municipality was under the impression that the river puramboke is vested with the Municipality, and therefore, it may not be appropriate and relevant to proceed with any penal action against any Municipal authorities. Therefore, if any action is contemplated as per Ext.P1, against the Secretary or any other officials of the Municipality, the same will remain quashed. 12. Taking into account all the aforesaid aspects, there will be a direction to the 1[st] respondent, i.e., the Secretary, Revenue Department to convene a meeting with the Municipality at the earliest possible, and at any rate, within two months from the date of receipt of a copy of this judgment, and identify whether the W.P.(C) No.32542 of 2016 10 property in question can be given to the Municipality to continue with the existing industrial activity in the property. The Municipality will be at liberty to file suitable representation before the Government, requesting to provide the property in question to the Municipality. A final decision shall be taken by the 1[st] respondent, as directed above, at the earliest, and at any rate, within a further period of two months from the date of the meeting. The writ petition is disposed of accordingly. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** St/01.02.2019 W.P.(C) No.32542 of 2016 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 :** **TRUE COPY OF THE ORDER DATED 17-9-2016 PASSED BY THE 3RD RESPONDENT.** **EXHIBIT P2 : TRUE COPY OF THE JUDGMENT IN OP NO.4459/1979 REPORTED IN 1980 KLT 843. EXHIBIT P3 : TRUE COPY OF THE GOVERNMENT NOTIFICATION GO (P) 132/93/LAD DATED 29-6-1993.** RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE St/-