Shamon N.S. 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 A.M.SHAFFIQUE** **WEDNESDAY, THE 18TH DAY OF DECEMBER 2019 / 27TH AGRAHAYANA, 1941** ## **WP(C).No.34844 OF 2019(E)** ## **PETITIONERS:** **SHAMON N.S., AGED 28 YEARS, NAVARANG HOUSE, WEST VELIYATHUNADU, UC COLLEGE, ALUVA, ERNAKULAM.** **BY ADVS. SRI.S.JAYAKRISHNAN (KARUNAGAPPALLY) SRI.P.M.AFSAL MOHAMED** ## **RESPONDENTS:** - **1 STATE OF KERALA,** - **REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM PIN 695 001.** - **2 DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD, ERNAKULAM PIN 682 311** - **3 THRIKKAKARA MUNICIPALITY. REPRESENTED BY SECRETARY, ERNAKULAM PIN 682 021.** - **4 REVENUE DIVISIONAL OFFICER, FORT KOCHI, ERNAKULAM PIN 682 001.** - **5 PRINCIPAL AGRICULTURAL OFFICER, KAKKANAD, ERNAKULAM PIN 682 311.** - **6 VILLAGE OFFICER, KAKKANAD, ERNAKULAM PIN 682 311.** - **7 HIMA DANI, W/O. DANI THOMAS, PALANTHINKAL HOUSE, PERINGAVU CHETTOOR, THRISSUR VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT, PIN 680 008.** - **8 JOSE P.A., S/O. ANTONY, PAYAPPILLIL HOUSE, VELOOR, KOTTAYAM DISTRICT, PIN-686003.** - **BY SRI.G.G.MANOJ, SC, THRIKKAKARA MUNICIPALITY BY ADV. SRI.S.SARATH PRASAD** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) NO.34844 OF 2019 2 ## **JUDGMENT** ## Dated this the 18[th] day of December 2019 ## S.Manikumar, CJ. Instant public interest litigation is filed with the following prayers: (a) Issue a writ of mandamus, any other appropriate order or direction to the 1[st] respondent to take necessary steps to prevent illegal reclamation of paddy land and for the strict implementation of the provisions of Kerala Conservation of Paddy Land and Wetland Act, 2008. (b) Issue a writ of mandamus, any other appropriate writ or direction to the 3[rd] respondent to cancel the development permit dated 9.5.2017 issued by the 3[rd] respondent to respondent Nos.7 and 8. (c) Issue a writ of mandamus, any other appropriate writ or direction to the respondent Nos.1 to 6 to stop the conversion of 967.233 Acres comprised in Survey Nos.373/1, 373/2, 373/3, 373/4, 373/8, 373/9, 373/10, 373/11, 374/3, 349/13, 349/14, 366/12, 367/7, 367/8, 367/9, 370/1, 370/2, 370/3, 370/4, 370/5, 370/6, 370/7, 370/8, 370/9, 371/6, 372/1, 372/10, 375/2, 375/5, 375/10, 376/2, 376/3, 397/2, 399/5 in block No.7 of Kakkanad village, Kanayannoor taluk, Ernakulam district. 2. Petitioner, claiming himself to be a public spirited citizen, has filed this p[ublic interest writ petition, with the objective to prevent indiscriminate and uncontrolled reclamation and conversion of paddy and wetlands by respondent Nos.7 and 8. Respondent Nos.7 and 8 are the absolute owners of W.P(C) NO.34844 OF 2019 3 the properties having an extent of 967.233 Ares comprised in Survey Nos.373/1, 373/2, 373/3, 373/4, 373/8, 373/9, 373/10, 373/11, 374/3, 349/13, 349/14, 366/12, 367/7, 367/8, 367/9, 370/1, 370/2, 370/3, 370/4, 370/5, 370/6, 370/7, 370/8, 370/9, 371/6, 372/1, 372/10, 375/2, 375/5, 375/10, 376/2, 376/3, 397/2, 399/5 in block No.7 of Kakkanad village, Kanayannoor taluk, Ernakulam district and they have ownership and title over those properties by virtue of sale deed Nos.4048/2007, 3656/2007, 3814/2008, 3840/2008, 4437/2008, 2906/2007, 4048/2007, 3656/2007, 3814/2008, 3840/2008, 4437/2008, 2906/2007, 1597/2007, 1944/2007, 1295/2008, 824/2008, 2465/2008, 2468/2008, 3231/2008, 3337/2008 of Thirkkakara Sub Registrar's Office. 3. Respondent Nos.7 and 8 filed applications dated 4.5.2010 before the 4[th] respondent, Revenue Divisional Officer, Fort Kochi, seeking permission for construction and other developments in those properties under clause 6(2) of the Kerala Land Utilisation Order, 1967. The properties were described in those applications as “reclaimed garden land”. Respondent Nos.7 and 8 filed W.P.(C) No.33715 of 2010 before this Court seeking necessary directions to expedite the proceedings on the applications. This Court vide judgment dated 9.11.2010 disposed of the writ petition by giving a direction to the 4[th] respondent to dispose of the said applications within 8 weeks from the date of receipt of copy of the said judgment. W.P(C) NO.34844 OF 2019 4 4. The petitioner has contended that Principal Agricultural Officer, Kakkanad, respondent No.5, and Village Officer, Kakkanad, respondent No.6, had falsely reported that the properties lying as paddy fields were reclaimed years back and it is not suitable for paddy cultivation by undue influence of respondent Nos.7 and 8. 5. Petitioner has further contended that the Revenue Divisional Officer, Fort Kochi, respondent No.4, has made a site inspection and by orders dated 10.02.2011 (Exhibits-P1 and P5) granted permission for construction and developmental activities subject to the provisions of Kerala Municipality Building Rules, 1999) to the properties comprised in respective survey numbers, based on the false report submitted by Principal Agricultural Officer and Village Officer, Kakkanad, Ernakulam (respondent Nos.5 and 6). ExhibitsP1 to P5 orders are extracted hereunder: **Ext.P1** “Proceedings of the Revenue Divisional Officer, Fort Kochi (Present K.P. Mohanadasan Pillai) - K. 9030/ /K.Dis. Date: 10-02-2011 Sub: KLU Order 1967 Request for permission for developmental Activities in land extending to 207.11 Ares comprised in Sy. Nos. 373/10, 399/5, 373/3, 373/9, 372/1, 372/2, 372/3,349/14 375/6, 373/2, 373/4, 373/1, 373/11 of Kakkanad Village in Kanayannur Taluk under clause 6(2) of the KLU Order 1967 –-orders issued - Read: 1) Application dt. 4-5-2010 of Sri. P.A. Jose, Payyappilly Veedu, Velloorkara, Kottayam Village Kottayam Taluk, Kottayam W.P(C) NO.34844 OF 2019 5 District, Pin-686003. Rep. by Managing Director, Josco Jewellers (P) Ltd. - 2) Letter No. A3-6923-A dt. 12-8-2010 of the Secretary Thrikkakara Grama Panchayath, along With resolution No. III (27) dt. 5-8-2010 of the Grama Panchayath, Thrikkakara. - 3) Judgment dt. 24-11-2010 in WP(C) No.35255/2010(F) of the Hon. High Court of Kerala filed P.A. Jose, Payyappilly Veedu, Velloorkara, Kottayam Village, Kottayam Taluk, Kottayam District, Pin-686003 Rep. by Managing Director, Josco Jewellers (P)Ltd. - 4) Report No. 818/10 dt. 1-12-2010 of the Village Officer, Kakkanad. - 5) Report dt. 14-1-2011 of the Principal Agricultural Officer, Ernakulam. xx xxxx xxx ## **Order** In view of the various decision of the Hon. High Court of Kerala and on the basis the reports of the statutory authorities mentioned above, I convinced that the applied land is not a paddy land as defined in section 2 (xii) of the Kerala Conservation of Paddy Land and Wetland Act 2008 (act 28 of 2008). Hence, permission is granted under clause 6 (2) of KLU order 1967 for constructional and developmental activities in the extending to 20.20 Ares, 16.00 Ares, 11.33 Ares, 22.40, Ares, 14.58 Ares, 10.80 Ares, 5.00 Ares, 11.15 Ares, 24.60 Ares, 18. 40 Ares, 14.75 Ares, 16.80 Ares and 21.10 Ares in Block No. 7, comprising in Sy. No. 373/10, 399/5, 373/3, 373/9, 372/1, 372/2, 372/3, 375/6, 373/11, 373/2, 373/4, 373/1 and 349/14 respectively in Kakkanad Village subject to the provisions of Kerala Municipal Building Rules, 1999. The direction contained in the judgment dated 24-11-2010 in WP(C) No.35255/2010(F) is complied with accordingly. Dated this the 10[th] day of February, 2011. Sd/Revenue Divisional Officer W.P(C) NO.34844 OF 2019 6 To The applicant - Copy to : 1. Adl.Tahasildar, Kanayannur 2. The Village Officer, Kakkanad 3. The Secretary, Thrikkakara Municipality 4. Copy to S.F. of the Section. **Ext.P2** Proceedings of the Revenue Divisional Officer, Fort Kochi (Present K.P. Mohanadasan Pillai) - K. 8662/ /K.Dis. Date: 10-02-2011 Sub: KLU Order 1967- Request for permission for developmental Activities in land extending to 231.34 Ares comprised in Block 7 Re.Sy. Nos.375/2, 375/10, 397/2, 376/4, 386/2, 376/3 of Kakkanad Village in Kanayannur Taluk under clause 6(2) of the KLU Order 1967 – orders issued - - Read: 1) Application dt. 4-5-2010 of Sri. P.A. Jose, Payyappilly Veedu, Velloorkara, Kottayam Village Kottayam Taluk, Kottayam District, Pin-686003. Rep. by Managing Director, Josco Jewellers (P) Ltd. - 2) Letter No. A3-6923-A dt. 12-8-2010 of the Secretary Thrikkakara Grama Panchayath, along With resolution No. III (27) dt. 5-8-2010 of the Grama Panchayath, Thrikkakara. - 3) Judgment dt. 04-11-2010 in WP(C) No.33515/2010(L) of the Hon. High Court of Kerala filed P.A. Jose, Payyappilly Veedu, Velloorkara, Kottayam Village, Kottayam Taluk, Kottayam District, Pin-686003 Rep. by Managing Director, Josco Jewellers (P) Ltd. - 4) Report No. 814/10 dt. 1-12-2010 of the Village Officer, Kakkanad. - 5) Report dt. 14-1-2011 of the Principal Agricultural Officer, Ernakulam. xxx xxxx xxxxx W.P(C) NO.34844 OF 2019 7 ## **Order** In view of the various decision of the Hon. High Court of Kerala and on the basis the reports of the statutory authorities mentioned above, I convinced that the applied land is not a paddy land as defined in section 2 (xii) of the Kerala Conservation of Paddy Land and wet land Act 2008 (act 28 of 2008). Hence permission is granted under clause 6 (2) of KLU order 1967 for constructional and developmental activities in the land extending to 24.27 Ares, 17.50 Ares, 20.84 Ares, 52.65 Ares, 24.45 Ares, 18.11 Ares and 5.26 Ares in Block No.7 comprising in Re.Sy. Nos. 375/2, 375/10, 397/2, 376/4, 376/2, 376/3 and 376/4 respectively in Kakkanad Village subject to the provisions of Kerala Municipal Building Rules 1999. The direction contained in the judgment dated 04-11-2010 in WP(C) No.33515/2010(L) is complied with accordingly. Dated this the 10[th] day of February, 2011. Sd/Revenue Divisional Officer To |Sd/-<br>Revenue Divisional Officer<br>To|Sd/-<br>Revenue Divisional Officer<br>To| |---|---| |The applicant- P.A. Jose,|| ||Payyappilly Vecdu, Velloorkara, Kottayam Village| ||Kottayam Taluk, Kottayam District, Pin-686003.| ||Rep. by Managing Director, Jose Gold Traders &| ||Jewellers (P) Ltd.| |Copy to:|1. Adll. Talshildar, Kanayannur| ||2. The Village Officer, Kakkanad| ||3. The Secretary, Thrikkakara Municipality| ||4. Copy to S.F. Of the Section.| **Ext.P3** Proceedings of the Revenue Divisional Officer, Fort Kochi (Present K.P. Mohanadasan Pillai) |K.|8597/|/K.Dis. Date: 10-02-2011| |---|---|---| ||Sub:|KLU Order 1967- Request for permission for developmental| |||Activities in land extending to 124.15 Ares comprised in Block 7| W.P(C) NO.34844 OF 2019 8 Sy. Nos.374/3, 375/7, 375/9, 375/4, 375/5 of Kakkanad Village in Kanayannur Taluk under clause 6(2) of the KLU Order 1967 – orders issued - - Read: 1) Application dt. 4-5-2010 of Sri.Hima Dani, W/o.Dani Thomas, Palathinkal House, Peringavu, Chettoor Kara, Thrissur Village, Thrissur Taluk, Thrissur District. - 2) Letter No. A3-6923-A dt. 12-8-2010 of the Secretary Thrikkakara Grama Panchayath, along With resolution No. III (27) dt. 5-8-2010 of the Grama Panchayath, Thrikkakara. - 3) Judgment dt. 09-11-2010 in WP(C) No.33715/10(L) of the Hon. High Court of Kerala filed Hima Dani, W/o.Dani thomas, Palathinkal House, Peringavu, Chettoor Kara, Thrissur Village, Thrissur Taluk, Thrissur District. - 4) Report No. 816/10 dt. 1-12-2010 of the Village Officer, Kakkanad. - 5) Report dt. 14-1-2011 of the Principal Agricultural Officer, Ernakulam. ## xxx xxxx xxxxx ## **Order** In view of the various decision of the Hon. High Court of Kerala and on the basis the reports of the statutory authorities mentioned above I convinced that the applied land is not a paddy land as defined in section2 (xii) of the Kerala Conservation of Paddy Land and Wetland Act 2008 (act 28 of 2008). Hence permission is granted under clause 6 (2) of KLU order 1967 for constructional and developmental activities in the extending to 6.04 Ares, 25.40 Ares, 73.28 Ares, 13.78 Ares, and 5.65 Ares in Block No. 7, comprising in Sy. No. 374/3, 375/7, 375/9, 375/4 and 375/5 respectively in Kakkanad Village subject to the provisions of Keräla Muncipal Building Rules 1999. The direction contained in the judgment 33715/2010 (L) dated 9-11-2010 is complied with accordingly. Dated this the 10[th] day February, 2011. Sd/Revenue Divisional Officer W.P(C) NO.34844 OF 2019 9 To The applicant: Hima Dani, W/o. Dani Thomas, Palathinkal House, Peringavu Chettoor Kara, Thrissur Village, Thrissur Taluk, Thrissur District. - Copy to: 1. Adll. Talshildar, Kanayannur 2. The Village Officer, Kakkanad 3. The Secretary, Thrikkakara Municipality 4. Copy to S.F. Of the Section. **Ext.P4** ## Proceedings of the Revenue Divisional Officer, Fort Kochi (Present K.P. Mohanadasan Pillai) K. 9016/10/K.Dis. Date: 10-02-2011 Sub: KLU Order 1967- Request for permission for developmental Activities in land extending to 58.20 Ares comprised in Sy. No.373/8 of Kakkanad Village in Kanayannur Taluk under clause 6(2) of the KLU Order 1967 – orders issued - - Read: 1) Application dt. 4-5-2010 of Sri.Jose P.A., S/o. Antony, Payappillil House, Veloor, Kottayam. - 2) Letter No. A3-6923-A dt. 12-8-2010 of the Secretary Thrikkakara Grama Panchayath, along With resolution No. III (27) dt. 5-8-2010 of the Grama Panchayath, Thrikkakara. - 3) Judgment dt. 19-11-2010 in WP(C) No.34822/10(C) of the Hon. High Court of Kerala filed Sri.P.A.Jose, Payappillil House, Veloorkara. - 4) Report No. 817/10 dt. 1-12-2010 of the Village Officer, Kakkanad. - 5) Report dt. 14-1-2011 of the Principal Agricultural Officer, Ernakulam. xxx xxxx xxxxx ## **Order** In view of the various decision of the Hon. High Court of Kerala and on the basis the reports of the statutory authorities mentioned above I convinced that the W.P(C) NO.34844 OF 2019 10 applied land is not a paddy land as defined in section2 (xii) of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (act 28 of 2008). Hence, permission is granted under clause 6 (2) of KLU order 1967 for constructional and developmental activities in the extending to 58.20 Ares in Block No, 7, comprising in Sy. No. 373/8 in Kakkanad Village subject to the provisions of Kerala Municipal Building Rules 1999. The direction contained in the 19-11-2010 is complied with judgment 34822/2010(c) dated accordingly. Dated this the 10[th] day of February, 2011. Sd/Revenue Divisional Officer To The applicant Copy to: 1. Adll. Talshildar, Kanayannur 2. The Village Officer, Kakkanad 3. The Secretary, Thrikkakara Municipality 4. Copy to S.F. Of the Section. **Ext.P5** Proceedings of the Revenue Divisional Officer, Fort Kochi (Present K.P. Mohanadasan Pillai) - K. 8663/ /K.Dis. Date: 10-02-2011 - Sub: KLU Order 1967- Request for permission for developmental Activities in land extending to 20.37 Ares comprised in Block No.7 Sy. Nos.349/12, 13 Kakkanad Village in Kanayannur Taluk under clause 6(2) of the KLU Order 1967 – orders issued - - Read: 1) Application dt. 4-5-2010 of Sri.Dani Thomas, S/o.P.V.Thomas, Palathinkal House, Peringavu, Chettoor Kara, Thrissur Village, Thrissur Taluk, Thrissur District. - 2) Letter No. A3-6923-A dt. 12-8-2010 of the Secretary Thrikkakara Grama Panchayath, along With resolution No. III (27) dt. 5-8-2010 of the Grama Panchayath, Thrikkakara. - 3) Judgment dt. 11-11-2010 in WP(C) No.34055/10(F) of the Hon. High Court of Kerala filed Sri.Dani Thomas, W.P(C) NO.34844 OF 2019 11 S/o.P.V.Thomas, Palathinkal House, Peringavu, Chettoor Kara, Thrissur Village, Thrissur Taluk, Thrissur District. - 4) Report No. 815/10 dt. 1-12-2010 of the Village Officer, Kakkanad. - 5) Report dt. 14-1-2011 of the Principal Agricultural Officer, Ernakulam. - xxx xxxx xxxxx ## **Order** In view of the various decision of the Hon. High Court of Kerala on the basis the reports of the statutory authorities mentioned above, I convinced that the applied land is not a paddy land as defined in section 2(xii) of the Kerala Conservation of Paddy Land and Wetland Act 2008 (act 28 of 2008). Hence, permission is granted under clause 6 (2) of KLU order 1967 for constructional and developmental activities in the extending to 20.00 Ares and 00.37 Ares in Block No.7, comprising in Sy. No. 349/12 and 349/13 respectively in Kakkanad Village subject to the provisions of Kerala Municipal Building Rules, 1999. The direction contained in the judgment dated 11-11-2010 in WP(C) No.34055/2010(F) is complied with accordingly. Dated this the 10[th] day of February, 2011. Sd/Revenue Divisional Officer To The applicant - Copy to: 1. Adl Talshildar, Kanayannur 2. The Village Officer, Kakkanad 3. The Secretary, Thrikkakara Municipality 4. Copy to S.F. Of the Section.” 7. Petitioner has further contended that permission has been granted by the 4[th] respondent after entering into a finding that the properties were reclaimed years back and it is not suitable for paddy cultivation. However, in the Data Bank, the description of those properties in the village records and W.P(C) NO.34844 OF 2019 12 the existing nature, would clearly show that it is a paddy land, which comes within the definition of 'paddy land' under the Kerala Conservation of Paddy Land and Wetland Act, 2008. Petitioner has further stated that he has submitted few photographs, which clearly show that there is a canal flows through those properties and it is essential for the inflow and outflow of water from the adjoining hilly areas. There is not even a whisper about the drainage canal in the order of the 4[th] respondent, stated above. 8. Petitioner has further contended that after obtaining permission from the Revenue Divisional Officer, Fort Kochi, respondent No.4, the respondent Nos.7 and 8 filed applications before the Thirkkakara Municipality, respondent No.3, for development permit. The 3[rd] respondent has granted development permit vide order dated 9.5.2017. The granting of permission by the said respondent for developmental activities for those properties is in violation of the Kerala Conservation of Paddy Land and Wetland Act, 2008 as the properties are lying even now as water logged marshy land and play a major role in maintaining the ground water level, preventing floods and even habitat for various aquatic organisms. 9. Petitioner has further contended that respondent Nos.7 and 8 after getting the said above orders, are trying to convert those properties by filling with red sand. If such large extent of paddy fields are converted, it would affect the ecological balance of that area. W.P(C) NO.34844 OF 2019 13 10. Heard learned counsel for the parties and perused the material available on record. 11. Prayers sought for in this writ petition are for issuance of a writ, directing the Thrikkakara Municipality, represented by its Secretary, Ernakulam, respondent No.3, to cancel the development permit dated 9.5.2017 issued to respondents 7 & 8 and to stop conversion of 967.233 Ares comprised in Survey Nos.373/1, 373/2, 373/3, 373/4, 373/8, 373/9, 373/10, 373/11, 374/3, 349/13, 349/14, 366/12, 367/7, 367/8, 367/9, 370/1, 370/2, 370/3, 370/4, 370/5, 370/6, 370/7, 370/8, 370/9, 371/6, 372/1, 372/10, 375/2, 375/5, 375/10, 376/2, 376/3, 397/2, 399/5 in block No.7 of Kakkanad village, Kanayannoor taluk, Ernakulam district. Both the construction and development permits have been granted in accordance with law. Reading of Exhibits-P1 to P5 orders dated 10.02.2011 makes it clear that there was not agricultural activity for the last 15 years, before 2011, and that, power has been exercised under clause 6(2) of the Kerala Land Utilisation Order, 1967, which reads thus: - “ **6. Land cultivated with any food crop not to be cultivated with any other food crop** .- (1) xx xxx xx (2) No holder of any land who cultivates any land with any food crop for a continuous period of three years at any time after the commencement of this Order shall, after the said period of three years, convert or attempt to convert or utilise or attempt to utilise such land for the cultivation of any other food crop or W.P(C) NO.34844 OF 2019 14 for any other purpose except under and in accordance with the terms of a written permission given by the Collector: Provided that except in the case of lands under cardamon cultivation, no permission under sub-clause (1) of sub-clause (2), shall be necessary where the cultivation for which the land is converted or attempted to be converted or attempted to be converted or utilised or attempted to be utilised is paddy cultivation or fish culture; Provided further that the lands under cultivation of paddy should not be converted or attempted to be converted or utilised or attempted to be utilised for fish culture permanently, but only seasonally.” ## 12. Development permit has been granted by respondent No.3 as early as on 9.5.2017 (Exhibit-P9), after considering the report of the Principal Agricultural Officer and the Village Officer, Kakkanad, Ernakulam, and the same has not been challenged within a reasonable time. Said development permit is extracted hereunder: “APPENDIX B [See Rule 6(7)] ## DEVELOPMENT PERMIT Layout & Plot sub division Thrikkakara Corporation/Municipal Council/Town. Panchayat No.BA/754/16-17 Date. 9/5/2017 Ref:- Application dated 18/11/2016 from Sri/Smt P.A. Jose & Hima Danny Permission is hereby granted for the development or redevelopment of land to the extent of 967.233 area/hectares, Layout and plot sub division comprised in Survey Nos.373/1, 2, 3, 4, 8, 9, 10, 11, 374/3, - 349/13, 14, 366/12, 367/7, 8, 9, 370/1 9, 371/6, 372/1, 10, 375/2, 5, 10, 376/2,3, 397/2, 399/5 Village Kakkanad Taluk Kanayannoor District Ernakulam. Subject to the following conditions:- W.P(C) NO.34844 OF 2019 15 - (1) Existing trees should be retained as far as possible and more number of trees planted in the available space after development. - (2) The permit is subject to the satisfaction of the provisions in the Land Utilisation Order and the permit issued thereunder. - (3) Permit period 9/5/17 to 8/5/2020 - (4) arrangement for surface water drainage shall be provided. - (5) No encroachment shall be made into the neighbouring or public properties such as thodu, drainage, pond, puramboke etc. Place: TKRA Dated: 9/5/17 Signature and name of Secretary SECRETARY THRIKKAKARA MUNICIPALITY” 13. Now, let us consider a few decisions of the Hon'ble Supreme Court on the aspect of delay, equity and reasonable time. (i) In _**State of Madhya Pradesh v. Bhailal Bhai**_ reported in _**AIR 1964 SC 1006,**_ the Hon'ble Supreme Court held that, unreasonable delay denies to the petitioner, the discretionary extraordinary remedy of mandamus, certiorari or other relief. (ii) In _**State of M.P., v. Nandlal Jaismal**_ reported in _**(1986) 4 SCC 566**_ , the Hon'ble Supreme Court, at Paragraph 24, held thus: “24. Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under W.P(C) NO.34844 OF 2019 16 the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs the High Court in deciding whether or not to exercise such jurisdiction. We do not think it necessary to burden this judgment with reference to various decisions of this Court where it has been emphasised time and again that where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere, even if the State action complained of is unconstitutional or illegal. .........Of course, this rule of laches or delay is not a rigid rule which can be cast in a strait jacket formula, for there may be cases where despite delay and creation of third party rights the High Court may still in the exercise of its discretion interfere and grant relief to the petitioner. But, such cases where the demand of justice is so compelling that the High Court would be inclined to interfere in spite of delay or creation of third party rights would by their very nature be few and far between. Ultimately it would be a matter within the discretion of the court; ex hypothesi every discretion must be exercised fairly and justly so as to promote justice and not to defeat it." (iii) In _**State of Maharastra v. Digambar**_ reported in _**AIR 1995 SC 1991,**_ the Hon'ble Supreme Court, considered a case, where compensation for the acquired land was claimed belatedly and at Paragraphs 12, 18 and 21, held as follows: "12. How a person who alleges against the State of deprivation of his legal right, can get relief of compensation from the State invoking writ jurisdiction of the High Court under article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decision of this Court that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blame-worthy because of laches, undue delay, acquiescence, waiver and the like. W.P(C) NO.34844 OF 2019 17 Moreover, how a citizen claiming discretionary relief under Article 226 of the Constitution against a State, could be relieved of his obligation to establish his unblameworthy conduct for getting such relief, where the State against which relief is sought is a welfare State, is also difficult to comprehend. Where the relief sought under Article 226 of the Constitution by a person against the welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of relief is claimed against the State on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances, instead of ignoring the same or leniently considering it. Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blame-worthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State. 18. Laches or undue delay, the blame-worthy conduct of a person in approaching a Court of Equity in England for obtaining discretionary relief which disentitled for grant of such relief was W.P(C) NO.34844 OF 2019 18 explained succinctly by Sir Barnes Peacock, long ago, in Lindsay Petroleum Co. v. Prosper Armstrong (1874) 5 PC 221) thus : "Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of Justice or injustice in taking the one course or the other, so far as it relates to the remedy." 21.Therefore, where a High Court in exercise of its power vested under Article 226 of the Constitution issues a direction, order or writ for granting relief to a person including a citizen without considering his disentitlement of such relief due to his blameworthy conduct of undue delay or laches in claiming the same, such a direction, order or writ becomes unsustainable as that not made judiciously and reasonably in exercise of its sound judicial discretion, but as that made arbitrarily." (iv) In _**State of Rajasthan v. D.R.Laxmi**_ reported in _**1996 (6) SCC 445,**_ the Hon'ble Supreme Court observed that though the order may be void, if the party does not approach the Court within a reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. (v) In _**Chairman, U.P.Jal Nigam and another v. Jaswant Singh**_ W.P(C) NO.34844 OF 2019 19 reported in _**AIR 2007 SC 924,**_ the Hon'ble Supreme Court, after considering a catena of decisions, on the aspect of delay, at Paragraph 13, held as follows: “13........Therefore, whenever it appears that the claimants lost time or while away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the Court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted." (vi) In _**S.S.Balu v. State of Kerala**_ reported in _**(2009) 2 SCC 479,**_ at Paragraph 17, the Hon'ble Supreme Court held as follows: "17. It is also well-settled principle of law that “delay defeats equity”. The Government Order was issued on 15-12002. The appellants did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and the State of Kerala preferred an appeal thereagainst, they impleaded themselves as party-respondents. It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment. It is, thus, not possible for us to issue any direction to the State of Kerala or the Commission to appoint the appellants at this stage. In NDMC v. Pan Singh9 this Court held: (SCC p. 283, para 16) “16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were W.P(C) NO.34844 OF 2019 20 employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction.” (vii) In _**Virender Chaudhary v. Bharat Petroleum Corporation**_ reported in _**(2009) 1 SCC 297,**_ the Hon'ble Apex Court held thus: “The court exercises its jurisdiction only upon satisfying itself that it would be equitable to do so. Delay and/or latches, indisputably, are the relevant factors. “15. The Superior Courts, times without number, applied the equitable principles for not granting a relief and/or a limited relief in favour of the applicant in a case of this nature. While doing so, the court although not oblivious of the fact that no period of limitation is provided for filing a writ petition but emphasize is laid that it should be filed within a reasonable time. A discretionary jurisdiction under Article 226 of the Constitution of India need not be exercised if the writ petitioner is guilty of delay and latches.” Some of the decisions considered by the Hon'ble Apex Court in _**Virender Chaudhary's** case_ (cited supra), are reiterated as follows: "16. **In Uttaranchal Forest Development Corporation and Anr. v. Jabar Singh and Ors** . [(2007) 2 SCC 112], the Hon'ble Apex Court held thus: "It is not in dispute that the effective alternative remedy was not availed of by many of the workmen as detailed in paragraphs supra. The termination order was made in the year 1995 and the writ petitions were admittedly field in the year 2005 after a delay of 10 years. The High Court, in our opinion, was not justified in entertaining the writ petition on the ground that the W.P(C) NO.34844 OF 2019 21 petition has been filed after a delay of 10 years and that the writ petitions should have been dismissed by the High Court on the ground of latches." 17. In **New Delhi Municipal Council v. Pan Singh and Ors.** [(2007) 9 SCC 278], the Hon'ble Apex Court held thus: "16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction. (See _Govt. of W.B. v. Tarun K. Roy [(2004) 1 SCC 347], U.P. Jal Nigam v. Jaswant Singh [(2006) 11 SCC 464] and Karnataka Power Corpn. Ltd., v. K.Thangappan [(2006) 4 SCC 332]_ ) 17. Although, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, writ petition should be filed within a reasonable time. ( _See Lipton India Ltd. v. Union of India [(1994) 6 SCC 524] and M.R.Gupta v. Union of India [(1995) 5 SCC 628]_ )” (viii) In _**Chennai Metropolitan Water Supply and Sewerage Board v. T.T.Murali Babu**_ reported in _**(2014) 4 SCC 108**_ , at Paragraphs 16 and 17, the Hon'ble Supreme Court held as follows: “16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an W.P(C) NO.34844 OF 2019 22 extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant – a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. 17. In the case at hand, though there has been four years’ delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others’ ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons – who compete with ‘Kumbhakarna’ or for that matter ‘Rip Van Winkle’. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold.” W.P(C) NO.34844 OF 2019 23 On a consideration of the pleadings and submissions made by the petitioner, the materials on record, and the decisions extracted above, we are not inclined to entertain this writ petition. Writ petition is, therefore, dismissed. No costs. **SD/S.MANIKUMAR CHIEF JUSTICE** **SD/A.M.SHAFFIQUE JUDGE** Krj.20/12 W.P(C) NO.34844 OF 2019 24 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 COPY OF ORDER NO. 9030/K.DIS DATED 10-02-2011.** **EXHIBIT P2 COPY OF ORDER NO. K. 8662/K.DIS DATED 10-02-2011.** **EXHIBIT P3 COPY OF ORDER NO. K 8597/ K.DIS DATED 10-2-2011. EXHIBIT P4 COPY OF ORDER NO. K 9016/10/K.DIS DATED 10-022011.** **EXHIBIT P5 COPY OF ORDER NO. K. 8663/K.DIS DATED 10-02-2011.** **EXHIBIT P6 COPY OF THE DETAILS FROM THE DATABANK OF 967.233 ARES OF PADDY LAND COMPRISED IN SURVEY IN SURVEY NOS 373/1, 373/2, 373/3, 373/4, 373/8, 373/9, 373/10, 373/11, 374/3, 349/13, 349/14, 366/12, 367/7, 367/8, 367/9, 370/1, 370/2, 370/3, 370/4, 370/5, 370/6, 370/7, 370/8, 370/9, 371/6, 372/1, 372/10, 375/2, 375/5, 375/10, 376/2, 376/3, 397/2, 399/5 IN BLOCK N. 7 OF KAKKANAD VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.** **EXHIBIT P6(A) COPY OF THE TRANSLATION OF EXHIBIT P6.** **EXHIBIT P7 COPY OF PHOTOGRAPHS OF EXHIBITS P1 TO P6 PROPERTIES.** **EXHIBIT P8 COPY OF THE LITHOPLAN OF EXHIBITS P1 TO P6 PROPERTIES.** **EXHIBIT P9 COPY OF THE DEVELOPMENT PERMIT DATED 9-5-2017.** //TRUE COPY// P.A. TO JUDGE