Manu Johnson v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 05TH DAY OF NOVEMBER 2020 / 14TH KARTHIKA, 1942** ## **WP(C).No.20209 OF 2020(A)** ## **PETITIONER/S:** **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** ## **RESPONDENT/S:** |**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.**| ## **SRI K P HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.20209 OF 2020** **2** ## **JUDGMENT** For having unauthorisedly encroached upon 3.28 Ares of Kayal Puramboke comprised in Re-Sy.Nos.75, 76, 77 and 78 in Block No. 291 of Kollam West Village, proceedings under the Kerala Land Conservancy Act, 1957 (hereinafter referred to as ‘Act’) was initiated against the petitioner as L.C.No. 16 of 2016. Notice under Section 12 of the Act was served and after following the procedure, by Ext.P12 order, he was ordered to vacate the unauthorised encroachment. The said order was challenged by the petitioner before the 3rd respondent by preferring an appeal. By Ext.P13 order dated 27.1.2018, the District Collector rejected the appeal. The matter was carried up in revision before the District Collector and by Ext.P14 order dated 31.1.2020, the orders passed by the Tahsildar and upheld by the RDO was confirmed. The above orders are under challenge in this writ petition. 2. It is the case of the petitioner that by Ext.P1 certificate, he has been permitted by the Department of Tourism, Government of Kerala, to operate service villas, in the name and style as M/s. Global Backwater Resorts, Kollam. While conducting the resorts as aforesaid, in order to improve the facilities in the resort, the petitioner is stated to have acquired **WP(C).No.20209 OF 2020** **3** properties which were held by certain persons for the past several years on the strength of valid deeds. He states that the property in Survey No.75 was being possessed by one Anil, S/o. Narayanan, and he had been remitting property tax with the revenue authorities as is evident from Ext.P3. The father of the petitioner entered into an agreement for sale with the aforesaid Anil on 5.8.2016 and on its strength, the petitioner has been possessing the said premises. Insofar as the property covered under Resurvey Nos. 76 and 77 are concerned, the same was being held by Santhakumari and Muraleedharan Nair. By Exts.P5 and P6 sale deeds which are dated 27.6.2015, the aforesaid properties were purchased by the petitioner. He states that there stood certain old buildings in the said property which were demolished and the petitioner herein has put up new constructions. He has also remitted basic tax in respect of the above property as is evident from Ext.P7 series. Insofar as the property in Re-sy. No. 78 is concerned, the same was owned by Smt.Santha Vamadevan in whose favour, Ext.P8 possession certificate has been issued by the Tahsildar. On 15.3.2011, the petitioner is stated to have entered into an agreement for sale with Santha and Prem Murali, a copy of which is produced as Ext.P9. The petitioner also states that he had also executed an agreement for sale with Prem Murali on 26.12.2015 on the strength of which **WP(C).No.20209 OF 2020** **4** he has been possessing the property. It is contended that the properties were acquired as aforesaid for developing the resort and to provide more facilities to the tourists. He has also constructed a jetty using coconut planks in the said property. The petitioner contends that the allegation that he had encroached upon kayal puramboke is not true. He contends that though valid contentions were raised by him before the revenue authorities, they failed to take note of the facts and circumstances and ordered eviction. It is in the afore circumstances that the petitioner has approached this Court seeking interference. 3. The 4th respondent has filed a statement. It is stated that when encroachment over Kayal puramboke was noticed, L.C.No. 16 of 2016 was registered and he was asked to vacate the Government puramboke land. On inspection, it was found that the petitioner had encroached upon portions of the Ashtamudi lake and had constructed buildings, compound walls and have planted trees. He would refer to the basic tax register maintained by the revenue authorities and produced as Annexure-A4 to bring home the fact that the properties in Sy. Nos. 75, 76, 77 and 78 falls within Government puramboke. It is further contended that when encroachment was noticed and proceedings initiated, the petitioner preferred an application for assignment of land invoking the provisions of **WP(C).No.20209 OF 2020** **5** Assignment of Land within Municipal and Corporation of Areas, 1995. However, the said application was dismissed on 31.5.2019 but the said fact is suppressed in the writ petition. This fact is highlighted by the 4th respondent to bring home the point that the petitioner was aware that the portions of land encroached upon by him is Kayal puramboke. It is contended that the agreement for sale as well as the sale deeds produced before this Court to show that the encroached land was being possessed by various persons will not hold good in the light of the fact the petitioner himself had filed an application for assignment of land which in fact was rejected by Annexure-R4(b). 4. I have considered the submissions advanced and have gone through the records. There is no case for the petitioner that the proceedings initiated against him under the Land Conservancy Act, 1957 and the rules framed thereunder are vitiated by any procedural irregularities. His contention is that the properties, the possession of which were handed over to him by various persons on the strength of agreement for sale as well as sale deeds were held by his predecessors in interest for the past several years. The basic tax register produced by the respondents would unequivocally show that the properties in Sy. Nos. 75, 76, 77, 78 of Block No. 291 of Kollam West Village forms part of Kayal puramboke. It has also **WP(C).No.20209 OF 2020** **6** come out on record that the application filed by the petitioner for assignment of land invoking the Rules, 1955 was rejected as early as on 7.6.2019. However, the said fact has not been mentioned in the writ petition. The contention of the petitioner that various others have encroached upon Government land and in that view of the matter, his encroachment also has to be regularised cannot be accepted. 5. As per the provisions of Kerala Irrigation and Water Conservation Act, 2003, Government has the duty to protect the river and water courses. Section 2 (v) defines irrigation work and it includes among others kayal land as well. ## Sections 3 and 5 of the Act, 2003 read thus: "3. Water courses and water in water courses to be Government property.-- Notwithstanding anything to the contrary contained in any other law for the time being in force, or in any custom or usage or in any contract or other instrument but subject to the provisions of section 218 of the Kerala Panchayat Raj Act, 1994 (13 of 1994) and section 208 of the Kerala Municipality Act, 1994 (20 of 1994), all water courses and all water in such water courses in the State shall be the property of the Government, and the Government shall be entitled to conserve and regulate the use of such watercourses and the water in all those water courses for the purposes of irrigation and the generation of Electricity and for matters connected therewith or for both." 5. Regulation on construction of reservoirs, anicut etc.- - (1) No person or agency or local authority shall construct any **WP(C).No.20209 OF 2020** **7** reservoir or anicut or weir or any other permanent structure in or across any water course for the purpose of diverting water therefrom except with the previous sanction of the Government or such authority as may be authorised by the Government in that behalf and subject to such terms and conditions as the Government or such authority may impose. (2) Where any structure is constructed in violation of the provisions of subsection (1), the Government or the authority authorised by the Government under that subsection shall, without prejudice to any other action that may be taken for such violation, have power to remove such structure or cause it to be removed and to recover the cost of such removal from the person or persons responsible for such construction." 6. In other words, if any structure is constructed in violation of the provisions of subsection (1), the Government or the authority authorised by the Government under that subsection shall, without prejudice to any other action that may be taken for such violation, have power to remove such structure or cause it to be removed and to recover the cost of such removal from the person or persons responsible for such construction. 7. The Apex Court in **Susetha v. State of Tamil Nadu and Others** [(2006) 6 SCC 543], had held thus in paragraphs 14, 19 and 21 of the report. "14. Concededly, the water bodies are required to be retained. Such requirement is envisaged not only in view of the fact that the right to water as also quality life are envisaged under Art.21 of the Constitution of India, but also in view of the fact that the same has been recognised in **WP(C).No.20209 OF 2020** **8** Art.47 and 48A of the Constitution of India. Art.51A of the Constitution of India furthermore makes a fundamental duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife. [See Animal and Environment Legal Defence Fund v. Union of India (AIR 1997 SC 1071), M. C. Mehta (Badkhal and Surajkund Lakes Matter) v. Union of India [(1997) 3 SCC 715] and Intellectuals Forum v. State of A.P. [(2006) 3 SCC 549)] 8. In **Sarvepalli Ramaiah (Died) as per LRs and Ors. v. District Collector, Chittoor District and Ors.** [2019 (4) SCC 500], the Apex Court had cautioned that land in water bodies cannot be assigned or alienated to any person even if it is dry. 9. This Court in **Nature Lovers Movement v. District Collector** [Judgment dated 13.1.1997 in O.P.No. 16077 of 1996], noticing widespread encroachments of kayal and river puramboke had ordered that if anybody encroaches upon river puramboke, those persons shall be summarily evicted. 10. The petitioner or any other person cannot encroach upon kayal puramboke to suit his ends for commercial purposes. It is in the interest of the collective good of the society for generations to come to ensure water flows freely through rivers, kayals and water channels without any obstruction artificially created by encroachers. Scientific studies have shown one and all that encroachment of kayal and rivers would result in livelihood **WP(C).No.20209 OF 2020** **9** alteration, biodiversity loss and landscape devastation. It would also wash away the floral and faunal components. The end result would be devastating and would invite natural disasters the likes of which have been visiting the State regularly. 11. Having considered all the relevant facts, I find no reason to interfere. This writ petition will stand dismissed. There will be no order as to costs. **SD/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** NS **WP(C).No.20209 OF 2020** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE GIVEN BY THE DEPARTMENT OF TOURISM, GOVERNMENT OF KERALA DATED 1.8.2013.** - **EXHIBIT P2 TRUE COPY OF THE RENEWED CERTIFICATE GIVEN BY THE DEPARTMENT OF TOURISM, GOVERNMENT OF KERALA DATED 20.6.2017.** - **EXHIBIT P3 TRUE COPY OF THE LAST TAX RECEIPT DATED 28.4.2007 ISSUED BY THE VILLAGE OFFICER, KOLLAM WEST VILLAGE.** - **EXHIBIT P4 TRUE COPY OF THE SALE AGREEMENT BETWEEN THE PETITIONERS FATHER AND ANIL DATED 5.8.2016.** - **EXHIBIT P5 TRUE COPY OF THE SALE DEED DATED 27.6.2015 BETWEEN THE PETITIONER AND SANTHAKUMARI.** - **EXHIBIT P6 TRUE COPY OF THE SALE DEED EXECUTED BETWEEN THE PETITIONER AND MURALEEDHARAN NAIR DATED 27.6.2015.** - **EXHIBIT P7 TRUE COPY OF THE TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, KOLLAM WEST VILLAGE DATED 29.1.2019.** - **EXHIBIT P7 (a) TRUE COPY OF THE TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, KOLLAM WEST VILLAGE DATED 29.3.2019.** - **EXHIBIT P7 (b) TRUE COPY OF THE TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, KOLLAM WEST VILLAGE DATED 26.6.2019** - **EXHIBIT P7 (c) TRUE COPY OF THE TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, KOLLAM WEST VILLAGE DATED 5.10.2019.** **EXHIBIT P8 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE TAHSILDAR,KOLLAM DATED 16.5.2002.** **WP(C).No.20209 OF 2020** **11** - **EXHIBIT P9** **TRUE COPY OF THE SALE AGREEMENT EXECUTED BETWEEN SANTHA AND PREM MURALI AND OTHERS DATED 15.3.2011.** - **EXHIBIT P10 TRUE COPY OF THE SALE AGREEMENT EXECUTED BETWEEN THE PETITIONER AND PREM MURALI DATED 26.12.2015.** - **EXHIBIT P11 TRUE COPY OF THE SKETCH OF THE PROPERTY PREPARED BY A RETIRED VILLAGE OFFICER.** - **EXHIBIT P12** - **TRUE COPY OF THE ORDER NO B-19457/16 (LC)16/16) DATED 25.1.2017 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P13 TRUE COPY OF THE ORDER NO R- DIS/9015/17/D DATED 27.1.2018 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P14 TRUE COPY OF THE ORDER NO L6-11181/2019 DATED 31.1.2020 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P15 TRUE COPY OF THE TAX RECEIPT ISSUED BY THE KOLLAM MUNICIPALITY IN RESPECT OF THE BUILIDING NO.175 SITUATED IN RESURVEY NO.75 DATED 14/02/1984.** - **EXHIBIT P16 TRUE COPY OF THE TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, KOLLAM WEST VILLAGE DATED 19/09/2018.** - **EXHIBIT P17 TRUE COPY OF THE TAX RECEIPT DATED 26/08/1994 OF KOLLAM MUNICIPALITY IN RESPECT OF BUILDING NO.187.** - **EXHIBIT P18 TRUE COPY OF THE PHOTOGRAPH SHOWING THE CONSTRUCTION ENCROACHING THE 'KAYAL PURAMBOKKU'** - **RESPONDENT'S/S EXHIBITS: NIL** **//TRUE COPY// P.A.TO JUDGE**