WP(C) Nos. 20325 of 2019 & 9208 of 2021 – V.R. Anil Kumar vs Director General of Police & Others; Ponnachan KV vs State of Kerala & Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE WEDNESDAY, THE 24[TH] DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA, 1943 ## WP(C) NO. 20325 OF 2019 ## PETITIONER/S: V.R.ANIL KUMAR AGED 42 YEARS S/O. V.S RAJENDRAN, VAZHAYATHOPPIL HOUSE, AYAMANAM VILLAGE, PARIPPU KARA, KOTTAYAM BY ADV JOSEPH M.P. ## RESPONDENT/S: - 1 THE DIRECTOR GENERAL OF POLICE OFFICE OF THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM - 2 THE DISTRICT POLICE CHIEF, KOTTAYAM - 3 THE DEPUTY SUPEERINTENDENT OF POLICE, KOTTAYAM - 4 THE SUB INSPECTOR OF POLICE, KOTTAYAM WEST POLICE STATION, KOTTAYAM. - 5 VINOD, PATHILCHIRA, KUMARAKOM BRANCH, KUMARAKOM NORTH, REPRESENTED BY ITS SECRETARY VINOD PATHITECHIRA 686 563 - 6 BABU KALLUTHARA, CHEEPUNKAL P.O, KUMARAKOM NORTH, KOTTAYAM 686 563 - 7 MOHANDAS KALLUTHARA, CHEEPUNKAL P.O, KUMARAKOM NORTH, KOTTAYAM 686 563 WP(C) NO. 20325 OF 2019 -:2:- - 8 SREEJITH KALLUTHARA, CHEEPUNKAL P.O, KUMARAKOM NORTH, KOTTAYAM 686 563 BY ADVS. GOVERNMENT PLEADER SHRI S.GOPINATHAN SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 3.11.2021, ALONG WITH WP(C).9208/2021, THE COURT ON 24/11/2021 DELIVERED THE FOLLOWING: ## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE WEDNESDAY, THE 24[TH] DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA, 1943 ## WP(C) NO. 9208 OF 2021 ## PETITIONER/S: 1 PONNACHAN KV AGED 53 YEARS S/O.LATE VIJAYANANDAN, SAKHA SECRETARY, PRATHIYA RAKSHA DAIVA SABHA (PRDS)-KUMARAKOM SAKHA, CHEEPUNKAL POST, VARAMBINAKOM, KOTTAYAM DISTRICT-686563, HAVING THE RESIDENCE PATHILCHIRA HOUSE, KUMARAKOM POST, KOTTAYAM DISTRICT-686563, NOW RESIDING AT CN-3 (QUARTERS), TRAVANCORE CEMENTS, NATTAKOM, KOTTAYAM DISTRICT-680566. BY ADVS. SAJAN VARGHEESE K. SRI.LIJU. M.P ## RESPONDENT/S: - 1 THE STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. - 2 THE LAND REVENUE COMMISSIONER, LAND REVENUE COMMISSIONERATE, LAND REVENUE COMPLEX, PUBLIC OFFICE BUILDING, MUSEUM, THIRUVANANTHAPURAM-695033. - 3 THE DISTRICT COLLECTOR, CIVIL STATION, KOTTAYAM-686002. - 4 THE REVENUE DIVISIONAL OFFICER, MINI CIVIL STATION, KOTTAYAM-686001. **WP(C) NO.** 9208 OF 2021 ## **-:2:-** - 5 THE TAHSILDAR, - MINI CIVIL STATION, KOTTAYAM-686001. - 6 THE VILLAGE OFFICER, - AYAMANAM VILLAGE, AYAMANAM POST, KOTTAYAM DISTRICT-686015. - 7 ANILKUMAR VR - S/O.RAJENDRAN, VAZHATHOPPIL HOUSE, CHEEPUNKAL POST, KUMARAKOM NORTH, KOTTAYAM DISTRICT-686563. - 8 ADDL.R8.AIMANAM GRAMA PANCHAYAT, REP. BY ITS SECRETARY, - AIMANAM GRAMA PANCHAYAT OFFICE, AIMANAM P.O., KOTTAYAM-686015, - 9 ADDL.R9. THE SECRETARY, - AIMANAM GRAMA PANCHAYAT, AIMANAM GRAMA PANCHAYAT OFFICE, AIMANAM P.O., KOTTAYAM-686 015. - *ADDL. R8 AND R9 ARE IMPLEADED AS PER ORDER DATED 01-07-2021 IN IA 1/2021 BY ADVS. GOVERNMENT PLEADER SHRI S.GOPINATHAN JOSEPH M.P. SHRI.SURIN GEORGE IPE, SC, AYMANAM GRAMA PANCHAYAT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 3.11.2021, ALONG WITH WP(C).20325/2019, THE COURT ON 24/11/2021 DELIVERED THE FOLLOWING: ## A.MUHAMED MUSTAQUE, J. ------------------------------------------ ## W.P.(C).Nos.20325/2019 & 9208/2021 ------------------------------------------ ## **J U D G M E N T** Dated this the 24[th] day of November, 2021 These cases are related to encroachment by the petitioner in W.P.(C).No.9208/2021 and removal of the same. This Court, in W.P.(C).No.7563/2020, at the instance of the writ petitioner in W.P.(C).No.20325/2019 and others, directed Aimanam Grama Panchayat to consider the complaint on encroachment in public land and take action, if necessary, in accordance with law. The writ petitioner in W.P.(C).No.20325/2019 also filed a contempt case against the judgment in W.P.(C).No.7563/2020, as Cont.Case (C).No.1763/2020. The above contempt case is pending before this Court. W.P.(C).No.20325/2019 was filed for police protection as against the alleged encroachers stating that the encroachers are preventing the petitioner therein and his WP(C) NOS. 20325 OF 2019 & 9208/2021 ## **-:2:-** family members from taking water from the thodu. The encroachment appears to be in a thodu puramboke. A report has been filed in that matter by the Sub Inspector of Police stating that the pathway used by the petitioner therein to fetch water from the public tap and public thodu has been obstructed. It is further stated that the only access to the public tap and kadavu is through the encroached area. 2. W.P.(C).No.9208/2021 is filed on behalf of the encroachers of Government land by seeking mandamus to consider the application for assignment. The writ petitioner in W.P.(C).No.9208/2021 claims that he is the Secretary of the Kumarakom Sakha of Prathyaksha Raksha Daiva Sabha. The petitioner admits that the Aradhana Mandiram (place of worship) is situated in a puramboke land. According to him, in the light of the Government Order, G.O. (MS).No.40/2020/Revenue, dated 29/1/2020, they are entitled for assignment of land in question. According to the petitioner, the Sabha is in occupation of the puramboke land for many WP(C) NOS. 20325 OF 2019 & 9208/2021 **-:3:-** years and is entitled for assignment. In the above case, the Tahsildar filed a statement. It is stated therein that the land in question is a Kavanar Puramboke and the Grama Panchayat is the custodian of the puramboke land. It is further stated that the land being a thodu puramboke, it cannot be assigned in the light of the judgment of this Court in O.P.No. 16077/1996. 3. There is hardly any dispute in regard to the illegal occupation of the Government land. The question in these cases can be considered only after deciding whether the petitioner in W.P.(C).No.9208/2021 is entitled to apply for assignment of thodu puramboke land as above. 4. Ext.P1 is the application submitted by the petitioner in W.P.(C).No.9208/2021 for assignment of the land, before the Tahsildar, Kottayam Taluk. Ext.P4 is the Government guidelines for assigning encroached land for the place of worship, cemetery, cultural activities etc. 5. The land in question is situated in resurvey No.371 Block 9 of Aimanam Village, of Kottayam Taluk. It is described ## WP(C) NOS. 20325 OF 2019 & 9208/2021 ## **-:4:-** in the basic tax register as Kavanar Puramboke. As seen from Exts.R5(b) and R5(c) in W.P.(C).No.9208/2021, an extent of 0.0333 hectares of land have been encroached by Prathyaksha Raksha Daiva Sabha. 6. The Apex Court in S.L.P.(C).No.8519/2006 and connected cases dated 31/1/2018 [Union of India v. State of Gujarat([1] )] directed to remove all encroachments by religious body on public land. The Apex Court ordered that no unauthorised construction can be carried out or permitted in temple, church, mosque etc., in public places. It is further ordered that, if unauthorised construction has already taken place, the Government can, on case to case basis, review and take appropriate steps. 7. The Government power to assign puramboke or Government land is traceable to the Kerala Government Land Assignment Act, 1960 and the Rules made thereunder. It is to be noted that the land belong to the State and, the Executive Government is holding such land as a public trustee; the 1 Indian Kanoon https://indiankanoon.org/doc/121003462/ ## WP(C) NOS. 20325 OF 2019 & 9208/2021 **-:5:-** Government cannot assign or allow occupation of Government land except in accordance with the statutory provisions under the Land Assignment Act and Rules. Therefore, the question that arises for consideration is whether the petitioner's application has to be directed to be considered in terms of G.O. (MS).No.40/2020/Revenue or not. 8. The Land Assignment Act laid down procedures to be followed by the Government for assigning Government land. The Government land also can be assigned by transfer of land, by way of lease and by grant of licence. There is a prescribed procedure under Section 4 of the Land Assignment Act before assigning the Government land. This procedure ensures that public interest is protected in assigning the land. Rule 7 of the Land Assignment Rules prescribe priority to be observed in assignment. Rule 7 read in the light of Section 4, rules out arbitrariness in assigning Government land. Rule 24 confers a residuary power on the Government to assign land on public interest, bypassing all other procedures. It is apparent that the WP(C) NOS. 20325 OF 2019 & 9208/2021 **-:6:-** Government formulated a policy to assign Government land to encroachers as seen from G.O.(MS).No.40/2020/Revenue invoking power under Rule 24. This Court cannot overlook the mandate of Rule 24 while construing various clauses in Ext.P4 for assigning Government land to encroachers. 9. Prathyaksha Raksha Daiva Sabha, Kumarakom Sakha is admittedly encroacher of thodu puramboke. A learned Single Judge of this Court by judgment in O.P.No.16077/1996, dated 13/1/1997, directed the Government to remove encroachment from kayal puramboke in and around Ernakulam District. A kayal puramboke or thodu puramboke cannot be assigned inasmuch as it is required to protect the river and kayal itself. An encroacher cannot be put in a better position by encroaching upon kayal puramboke or river puramboke. Public interest in this context has also to be perceived from the perspective of the requirement of the encroacher. It is not a case where larger public interest demands protection of the encroacher from eviction like an occupier of Government land by a person, who WP(C) NOS. 20325 OF 2019 & 9208/2021 ## **-:7:-** belongs to a lowest strata of the society. Public interest pre-suppose larger interest which is relatable to the welfare of the general public or society. A construction of place of worship in public land in no way can be considered to subserve larger public interest. That apart, it has come out that encroachment has deprived the neighbouring people including the petitioner in W.P.(C).No.20325/2019 from having access to the thodu to fetch water. If there is no predicated element of public interest, no encroachers can claim the benefit of G.O. (MS).No.40/2020/Revenue, to legalise any illegal activity. The claim based on G.O.(MS).No.40/2020/Revenue can only be sustained when there is a predominant public interest preceded in such case. If this Court directs by issuance of writ of mandamus to the public authority to consider the application, that would amount to directing public authority to entertain a claim which is ex facie unsustainable. No doubt, the public authority is the primary authority to form an opinion, whether the application need to be considered or not. However, when ## WP(C) NOS. 20325 OF 2019 & 9208/2021 ## **-:8:-** the Court is called upon to decide on issuing mandamus, the Court cannot issue mandamus overlooking the admitted facts available before the Court. It has come out from the report of the police that an obstruction has been caused to the petitioner in W.P.(C).No.20325/2019 from taking water from public place. The Government cannot countenance or encourage encroachers who become threat to others to persist with threat, by legalizing their occupation. The police shall ensure protection to the petitioner in W.P.(C).No.20325/2019, whenever it is required, for taking water from public place without any obstruction from the side of the private respondents in that writ petition. Accordingly, W.P.(C).No.9208/2021 is dismissed. W.P. (C).No.20325/2019 is allowed granting relief as above. ## Sd/- ## A.MUHAMED MUSTAQUE, JUDGE ## 24/11/2021 After pronouncement of the judgment today, the learned counsel for the party respondents in W.P.(C).No.20325/2019 submitted that the party WP(C) NOS. 20325 OF 2019 & 9208/2021 ## **-:9:-** respondents have no intention to create law and order situation and, at present, there is no such situation as well. The said submission is recorded. Sd/- A.MUHAMED MUSTAQUE, JUDGE ms/ln WP(C) NOS. 20325 OF 2019 & 9208/2021 ## **-:1:-** ## **APPENDIX OF WP(C) 9208/2021** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 30.11.2019 SUBMITTED TO THE 5TH RESPONDENT. EXHIBIT P2 TRUE COPY OF THE RECEIPT ISSUED ON RECEIVING EXHIBIT P1. EXHIBIT P3 TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED IN RESPECT OF THE BUILDING WHEREIN 'SAKHA MANDIRAM' WOULD SITUATE. EXHIBIT P4 TRUE COPY OF GO(MS)NO.40/2020/REVENUE. EXHIBIT P5 TRUE COPY OF THE VILLAGE OFFICER'S REPORT DATED 02.02.2019 SUBMITTED BEFORE THE 4TH RESPONDENT. RESPONDENT EXHIBITS EXHIBIT R5 A TRUE COPY OF THE BASIC TAX REGISTER EXHIBIT R5 B TRUE COPY OF THE REPORT PREPARED BY THE TALUK SURVEYOR, KOTTAYAM EXHIBIT R5 C TRUE COPY OF THE SKETCH PREPARED BY THE TALUK SURVEYOR, KOTTAYAM EXHIBIT R7 A TRUE COPY OF THE JUDGMENT DT. 8/7/2019 PASSED BY THIS COURT IN WPC 7886/2019 EXHIBIT R7 B TRUE COPY OF THE JUDGMENT DT 21/1/2020 PASSED BY THIS COURT IN COC 2309/2019 EXHIBIT R7 C TRUE COPY OF THE JUDGMENT DT 18/3/2020 PASSED BY THIS COURT IN WPC 7563/2020 WP(C) NOS. 20325 OF 2019 & 9208/2021 ## **-:2:-** ## **APPENDIX OF WP(C) 20325/2019** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF ONE OF SUCH COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 21/1/2019 ALONG WITH THE ACKNOWLEDGMENT EXHIBIT P2 TRUE COPY OF THE OUTPATIENT RECORD DATED 5.2.2020. EXHIBIT P3 TRUE COPY OF THE COMPLAINT DATED 6.2.2020. RESPONDENT EXHIBITS EXHIBIT R5 A TRUE COPY OF THE ROUGH SKETCH. EXHIBIT R5 B ORIGINAL PHOTOGRAPHS SHOWING THE 'KADAVU' BELONGING TO THE PETITIONER, PETITIONER'S RESIDENCE, 'ARADHANA MANDIRAM' AND THE FENCE LYING BETWEEN THE PETITIONER'S PROPERTY AND THE 'ARADHANA MANDIRAM' PROPERTY. EXHIBIT R5 C ORIGINAL PHOTOGRAPH OF THE 'MUTTU' SITUATED ON THE NORTH-EASTERN CORNER OF THE PETITIONER'S PROPERTY.