Manu Johnson v. State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 09TH DAY OF DECEMBER 2020 / 18TH AGRAHAYANA, 1942** **WA.No.1657 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 20209/2020(A) OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **MANU JOHNSON, AGED 25 YEARS, CHARUVILA PUTHENVEEDU, AMBIPOIKA P.O., ELAMPALLOOR, KUNDARA, KOLLAM.** **BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.P.MOHANDAS (ERNAKULAM) SRI.K.SUDHINKUMAR SRI.S.K.ADHITHYAN SRI.SABU PULLAN SRI.GOKUL D. SUDHAKARAN** ## **RESPONDENTS/RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT , GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE DISTRICT COLLECTOR, CIVIL STATION, KOLLAM-691 013. 3 THE REVENUE DIVISIONAL OFFICER/ SUB DIVISIONAL MAGISTRATE, CIVIL STATION, KOLLAM-691 013. 4 THE ADDITIONAL TAHSILDAR (LR) TALUK OFFICE, KOLLAM-691 001. BY SRI V.TEK CHAND, SR. G.P. FOR RESPONDENTS** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.No.1657 of 2020** **2** ## **JUDGMENT** Dated this the 9[th] day of December, 2020 ## **S.Manikumar, C.J.** Challenge in this writ appeal is to the judgment made in W.P.(C) No.20209 of 2020, by which, a learned single Judge, after considering the finding recorded by three authorities under the Kerala Land Conservancy Act, 1957 and the rules framed thereunder, that the appellant is in possession of 3.28 Ares of Kayal Puramboke comprised in Re-Sy.Nos.75, 76, 77 and 78 in Block No.291 of Kollam West Village, taking note of the fact that the land in the abovesaid survey numbers has been classified in Annexure R4(b) as Government Puramboke land, Section 2 of the Kerala Irrigation and Water Conservation Act, 2003, decisions of the Hon'ble Supreme Court in **Susetha v. State of Tamil Nadu and Others** reported in (2006) 6 SCC 543, **Nature Lovers Movement v. District Collector** (judgment dated 13.1.1997 in O.P. No.16077 of 1996), **Sarvepalli Ramaiah (Died) as per LRs and Ors. v. District Collector, Chittoor District and Ors.** reported in (2019) 4 SCC 500, wherein Courts have categorically held that encroachment in water bodies cannot be recognised, and that assignment or alienation cannot be granted to any person, even if it is dry, dismissed the writ petition filed for the following reliefs: **W.A.No.1657 of 2020** **3** - “i) to issue a Writ of Certiorari or such other appropriate writ, order or direction quashing Ext.P12 order No.B-19457/16 (LC 16/16) dated 25-01-2017 issued by the 4[th] respondent as it is arbitrary and illegal; - ii) to issue a Writ of Certiorari or such other appropriate writ, order or direction quashing Ext.P13 order No.R-Dis/ 9015/17/D dated 27-01-2018 issued by the 3[rd] respondent as it is unsustainable in law; - iii) to issue a Writ of Certiorari or such other appropriate writ, order or direction quashing Ext.P14 order No. L6-11181/2019 dated 31-01-2020 issued by the 2[nd] respondent as it is without any jurisdiction; - iv) to issue a Writ of Mandamus or order or direction to respondents 2 to 4 not to interfere or demolish the construction made by the petitioner in front of his resort in the properties obtained by him on the basis of sale deed/sale agreement namely Exts. P4 to 10; - v) to declare that the petitioner is entitled to continue in possession of the properties obtained by him by sale deed/sale agreement namely from Exts.P4 to P10 as the petitioner has not encroached any Kayal Purambokku as alleged by the 4[th] respondent.” 2. Exhibit-P12 order 25.01.2017 issued by the Additional Tahsildar - (L.R.), Taluk Office, Kollam, respondent No.4, is extracted hereunder: - “Proceedings of Additional Tahsildar, Kollam ## (Present : T. Unnikrishnan) No.B-19457/2016 L.C-16/16 Dated: 25/01/2017 **W.A.No.1657 of 2020** **4** Sub:- land Conservancy Act, 1957 – Encroachment to the Government Puramboke Land LC Case-regarding the adjudication of final order Hint:- Report Number 219/16 of Kollam West Village Officer dated 23.8.2016, 9.2.2016. …................... Village officer has produced the records showing the encroachment to the 0.03.28 Ares of Backwater Purambokke Property of Re.Sy. Numbers 75, 76, 77, 78 of Block No. 291 of Kollam West Village by Sri. Manu Johnson, S/o Johnson, Charuvila, Puthenveedu, Ambipoika P.0, Perumbuzha, Ilamballoor. The form A report produced shows that 0.0147 Ares of land have been encroached and effected unauthorized construction, 0.00.20 Ares of Land is filled with soil and 0.00.94 Ares of land is encroached to erect the coconut pillars in Sy .Nos.75,76,77,78. On the basis of this, a case was registered as LC number 16/16 and conducted inspection on the alleged a site and it has convinced that there is encroachment. Later a notice was issued to the encroacher under section 12 directing him to appear before the additional Thahasildar Kollam, for hearing on 04.01.2017 at 2:00 P.M. Due to some inconvenience he could not appear on the specified date and sought for adjournment of the hearing. Therefore, the hearing was adjourned to 10.012017. On 10.01.2017 the encroacher appeared for hearing and pleaded not guilty and submitted his statement, in which the respondent stated that the property with Sy.No. 191, 192, 79/2/2 are in his possession under Thanderper Account number 34601 and **W.A.No.1657 of 2020** **5** for the same the corporation has issued number, it is electrified and he purchased the same from the prior owner for a sale consideration also in which residential building in Sy.No 78 is received to the prior owner under LA 65/02 from the Kollam Taluk office. The residential building in Sy.No.75 which was under the possession of prior owner Sri. Anil Kumar is of 50 years old, electrified and numbered by the corporation Kollam. Also it is of a height of 11/2 from the water level of the back water and the Coconut trees are of more than 50 years old. The net is tied which is temporary to obstruct the waste flows through the backwater and accumulating it in the shore of backwater. The statement of the respondent that there is no unauthorised construction and filling of soil is recorded. I have examined the entire records and heard the respondent. In result LAM of the view that the respondent have encroached and I am convinced the same. Therefore his guilty under land conservancy act 1957. ## **ORDER** It is hereby orders for the eviction of unauthorized construction and encroachment in survey number 75, 76, 77, 78 of Re.Sy.Block No. 291 of Kollam West Village. The respondent has to leave from the encroached area within 15 days of receiving this notice. The Kollam West village officer is hereby authorized to, if the respondent failed to do so within the specified time limit, other actions will be initiated against him for eviction and by preparing mahasar the property will be acquired by the government **W.A.No.1657 of 2020** **6** and that have to be reported. ## Additional Thahasildar Copy to, 1. Sri. Manu Johnson, S/o Johnson, Charuvila Puthenveedu, Ambipoika P.O. 2. Village Officer, Ilamballoor.” 3. Exhibit-P13 order dated 27.01.2018 issued by the Revenue Divisional Officer/Sub Divisional Magistrate, Kollam, respondent No.3, is extracted hereunder: “ Proceedings of Sub Divisional Magistrate, Kollam (Present: Dr. Chithra S (IAS)) -------------------------------------------------------------------------- R-Dis/9015/2017/D Dated: 27/01/2018 -------------------------------------------------------------------------- Sub:- Land conservancy Act, 1957-Regarding the Order of dismissal of Appeal filed by Sri. Manu Johnson, Charuvila, Puthenveedu. Hint:- Proceeding No.B19457/2016 in LC 16/16 dated 25/01/2017 of LR Tahsildar, Kollam. ......... After noticing the encroachment in Re.Sy. Numbers 75, 76, 77, 78 of Block No.291 of Kollam West Village by Sri. Manu Johnson, S/o. Johnson, Charuvila, Puthenveedu, Ambipoika P.O., Perumbuzha, Ilamballoor, a case filed by the Village Officer, Kollam (W) under Land Conservancy Act, 1957 and a report on the same was submitted before the LR Tahsildar, Kollam. Based on that report, the site was inspected by the Charge Officer and the Taluk Surveyor and **W.A.No.1657 of 2020** **7** submitted a sketch on the same, in which it was convinced that 01.47 Ares of land have been encroached and effected unauthorised construction, 0.20 Ares of land is filled with soil and 0.94 Ares of land is encroached to erect the coconut pillars in Sy. Nos. 75, 76, 77, 78. Therefore, a case registered against the respondent as LC 16/16 and a notice was issued to the encroacher under section 12 directing him to appear before the additional Thahasildar Kollam, for hearing on 04.01.2017 at 2:00 P.M. Due to some inconvenience he could not appear on the specified date and sought for adjournment of the hearing. Therefore, the hearing was adjourned to 10.01.2017. On 10.01.2017 the encroacher appeared for hearing and submitted that the property with Sy.No. 191, 192, 79/2/2 are in his possession under Thanderper Account number 34601 and for the same the corporation has issued number, it is electrified and he purchased the same from the prior owner for a sale consideration also in which residential building in Sy.No 78 is received to the prior owner under LA 65/02 from the Kollam Taluk office. The residential building in Sy.No.75 which was under the possession of prior owner Sri. Anil Kumar is of 50 years old, electrified and numbered by the Corporation Kollam. Also it is of a height of 11/2 from the water level of the back water and the Coconut trees are of more than 50 years old. The net is tied which is temporary to obstruct the waste flows through the backwater and accumulating it in the shore of backwater, and also stated that he has not made any unauthorized construction and have not filled with soil to the land. **W.A.No.1657 of 2020** **8** Though an inspection made by the Charge Officer and Taluk Surveyor on site and on examining the documents submitted by them, the encroachment is convinced and proceedings were initiated by the Thahasildar on 25/1/17. Against the proceeding No. B19457/2016 in LC 16/16 of the Thahasildar dated 25/01/2017, Sri. Manu Johnson filed an appeal before the Sub Collector Kollam. A notice was issued to the appellant to hear him on 9/08/2017. But there was no representation for him. Therefore, the case was adjourned to 22/11/2017. Again there was no representation for the appellant. Again the was taken up on 20/12/2017 and a Lawyer was appeared on behalf of the appellant and adjourned the hearing to 3/01/2018. But the meeting could not be conducted. On 10/01/2018 meeting was conducted and the father of the appellant were representing him. He submitted that appellant was in gulf and came back in 2013. From 2013 onwards he has been running the resort. The property lying in front of it was purchased in his name(Appellant’s). He submitted an application before the District Collector to get assigned the Government area around the property. That is still pending. To obstruct the accumulation of wastes from the backwater, they erected coconut pillars 3 meters away from the shore and tied a net there. Also a boat jetty is temporarily arranged there. Though an inspection made by the Charge Officer and Taluk Surveyor on site and on examining the documents submitted by them, the encroachment is convinced. Even though the encroachment is temporary, it is illegal. Appellant can do obstruction to get avoid accumulating the waste from his on **W.A.No.1657 of 2020** **9** property only. These cannot be allowed in Government Purambokke Land. Government Land cannot be ceded to effect constructions to attract the visitors to the resort. The resort should be started with protection of Backwater in mind. Only the exact property the revenue records which the prior owner possessed and owned can be transferred. Possessing and taking over of Puramboke Land is illegal. The application for the assignment of land is given only after filing of this appeal. Unauthorized construction by Encroachment to the Backwater for private interest is illegal. The appellant has given Statement during hearing that he has effected the construction by encroaching the Purambokke Land. All the arguments made by the appellant is distorted and untrue. The arguments made by the appellant to acquire the Government Purambokke Land adjoining the backwater and the shore in the name of tourism development will be rejected as follows. ## **ORDER** The appeal filed by Sri. Manu Johnson who effected unauthorized construction and encroachment under the guise of tourism development in Re. Sy. Numbers 75, 76, 77, 78 of Block No. 291 of Kollam West Village is hereby dismissed by upholding the order B/19457/16 in LC 16/16 of Thahasildar Kollam (West) Village. Sri. Manu Johnson, S/o. Johnson, Charuvila Puthenveedu, Ambipoika P.O.,” **W.A.No.1657 of 2020** **10** ## 4. Exhibit-P14 order dated 31.01.2020 issued by the District ## Collector, Kollam, respondent No.2, is extracted hereunder: “File No. DCKLM/11181/2019-L6 Proceedings of District Collector, Kollam (Present: B. Abdul Nasar. IAS) L.6-11181/2019 Dated: 31/01/2020 -------------------------------------------------------------------------- Sub: Kerala Land Conservancy Act-1957-Revision Petition filed by Sri. Manu Johnson- regarding the adjudication of final Order. Hint 1. The revision petition filed on 17.03.2008 by Mr. Manu Johnson, Charuvila, Puthenveedu, Ambipoika, Ilamballoor. Hint 2. Proceeding No.B.16-19457/2016 of additional Thahasildar, Kollam, dated 25.01.2017. Hint 3. Proceeding No.RDS-9015/17/D of Sub Collector, Kollam, dated 27.01.18. Hint 4. Report No. D1-19457/2016(geography) of Thahasildar, Kollam DATED 14.11.2019. Hint 5. Report No.D-7079/2018 of Sub Collector, Kollam dated 29.11.2019. Mr. Manu Johnson has been filed a Revision Petition as per Sec.16(2) of Land Conservancy Act, 1957 against the dismissal of appeal as per hint 3, on the basis of the finding that under the guise of tourism development, 03.28 Ares of Back Water Purambokke of Re.Sy Nos.75, 76, 77, 78 of Block No.291 of west village Kollam is encroached and made unauthorized construction. By admitting the petition on file, called for reports and files from Sub Collector and Thahasildar as per hint 4 and 5, has examined. It is convinced that the petitioner has planted trees and he have effected unauthorized construction in **W.A.No.1657 of 2020** **11** 01.47 Ares, 0.20 Ares are filled with soil and coconut pillars have erected in 0.94 ares of the property in Re.sy No.75,76,77,78 of Block No.291 of west village Kollam by inspecting the site by the Taluk Surveyor and the sketch prepared. On the basis of this a case was registered as LC 16/16 and took actions against that. It was directed the petitioner to appear on 23.01.2020, and he submitted his arguments. The petitioner failed to validate the unauthorized encroachment. The respondent was directed to appear for hearing on 23.01.2020 and appeared on the same day and submitted their statement. On examination, the respondent failed to validate the encroachment. As per hint 3 order, the encroachment even for temporary is illegal. Even though the encroachment is temporary, it is illegal. Appellant can do obstruction to get avoid accumulating the waste from his on property only. These cannot be allowed in Government Purambokke Land. Government Land cannot be ceded to effect constructions to attract the visitors to the resort. The resort should be started with protection of Backwater in mind. Only the exact property the revenue records which the prior owner possessed and owned can be transferred. Possessing and taking over of Purambokke Land 1s illegal. On examining the arguments submitted by the Revision Petitioner, the LC files and appeal files as per hint 4 and hint 5, and the records it is convinced that there is encroachment in the Government Purambokke Land, and orders as follows. **W.A.No.1657 of 2020** **12** ## **ORDER** It is hereby dismissing the revision petition filed by Sri. Manu Johnson under sec.16(2) of Kerala Land Conservancy Act 1957 against the order as per hint 3, and direct to take action against him under sec.7 of Kerala Land Conservancy Amendment Act 2009 for encroachment committed 03.28 Ares of Backwater Purambokke Property in Re.sy No.75,76,77,78 of Block No.291 of west village Kollam and authorize the Land Thahasildar for eviction of unauthorized encroachment and to submit the report before 4" day of February. District Collector Sd/- Sri. Manu Johnson, S/o Johnson, Charuvila Puthenveedu, Ambipoika P.O. Copy to, 1. Sub Collector, Kollam 2. Thahasildar(Land), Kollam(including file of B.16/19457/16) 3. Village Officer, Kollam West 4. Village Officer, Ilamballoor. 5. L.6 Backup file.” 5. Though Dr. K. P. Satheesan, learned Senior Counsel appearing for the appellant, submitted that the appellant has not encroached upon the subject property; that electricity connection, water connection, etc. were provided; that the previous owners were in possession of the property in question for more than 50 years, and further submitted that there are other encroachments in the nearby areas, when attention of **W.A.No.1657 of 2020** **13** the learned Senior Counsel was brought to the notice that the Kayal Puramboke is not assignable under the provisions of the Kerala Land Conservancy Act, 1957; that there cannot be any negative equality; that the appellant had suppressed the fact of rejection of his application for assignment in the writ petition, and that when there is a law governing assignment of lands, equity cannot be extended, learned Senior Counsel sought permission to withdraw the writ appeal. Permission is granted and the writ appeal is dismissed as withdrawn. Pending interlocutory applications, if any, shall stand closed. Sd/- **S.Manikumar Chief Justice** Sd/- **Shaji P.Chaly Judge** ## **vpv** /true copy/ P.A. to Judge