W.P.(C).No.17895/2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 9[TH] DAY OF JULY 2021 / 18TH ASHADHA, 1943** **WP(C) NO. 17895 OF 2013** ## **PETITIONERS:** - **1 K.S.DAMODARAN ELAYATH AGED 67 YEARS** - **S/O.SANKARAN ELAYATH, KADAMBANATTU ILLAM, KUTTILILANJI,IRAMALLOOR P O, KOTHAMANGALAM-686691** - **2 T M NEJIS AGED 45 YEARS S/O.T M MOHAMMED, THOTTATHIKKULAM, KUTTILILANJI,IRAMALLOOR P O, KOTHAMANGALAM,686691** - **3 M K MUHAMMED AGED 68 YEARS** - **S/O.KOYAN, MOOLETHOTTIYIL VEEDU, IRUNNOOR ACRE KARA ADIMALY P O, DEVIKULAM TALUK, IDUKKI DIST,** - **4 K.S.NARAYANAN ELAYATH AGED 61 YEARS S/O.SANKARAN ELAYATH, KADAMBANATTU ILLAM, KUTTILLNJI, IRAMALLOOR P O, KOTHAMANGALAM-686691** - **5 V S GOPINATHAN, S/O.SANKARAN NAIR AGED 42 YEARS VATHERIL, KUTTILLANJI, IRAMALLOOR P O, KOTHAMANGALAM-686691** - **6 MANMADHAN NAIR K L AGED 55 YEARS** - **S/O.VELAYUDHAN NAIR, KIZHAKKUNNEL VEEDU,KUTTILLNJI, IRAMALLOOR P O, KOTHAMANGALAM686691** - **7 M B MUHAMMED AGED 53 YEARS** - **S/O.BAVU,MOOLETHOTTIYIL VEEDU, KUTTILLNJI, IRAMALLOOR P O, KOTHAMANGALAM-686691** - **8 K M SAYED AGED 65 YEARS** - **S/O.MAKKAR, KUNNASSERIL VEEDU, MENTHALA P O, ASAMANNOOR, METHALA, ERNAKULAM DIST** - **9 A M ASSINAR AGED 62 YEARS** - **S/O.MOITHEEN , AREMTHURUTHI, KUTTILLNJI, IRAMALLOOR P O, KOTHAMANGALAM-686691** **W.P.(C).No.17895/2013** **2** |**10**|**SETHU M G**| |---|---| ||**AGED 46 YEARS**| ||**S/O.GOVINDAN, MADATHIKUDI, KUTTILLNJI,**| ||**IRAMALLOOR P O, KOTHAMANGALAM-686691**| |**11**|**M H KAREEM**| ||**AGED 40 YEARS**| ||**S/O.HASSAN, MAKKANAYAM, KUTTILLNJI, IRAMALLOOR**| ||**P O, KOTHAMANGALAM-686691**| |**12**|**JALAL K H**| ||**S/O.ASSAINAR,KANJIRAKUZHI,KUTTILLNJI,**| ||**IRAMALLOOR P O, KOTHAMANGALAM-686691**| ||**BY ADVS.**| ||**SRI.K.RAMAKUMAR (SR.)**| ||**SRI.S.M.PRASANTH**| ||**SMT.SMITHA GEORGE**| ## **RESPONDENTS:** |**1**|**THE DISTRICT COLLECTOR**| |---|---| ||**ERNAKULAM, 682030**| |**2**|**THE ASSISTANT EXECUTIVE ENGINEER**| ||**PERIYAR VALLEY IRRIGATION PROJECT, PERUMBAVOOR,**| ||**PATTAL, KOTHAMANGALAM, ERNAKUAM-686691**| |**3**|**THE TAHSILDAR**| ||**KOTHAMANGALAM TALUK, ERNAKULAM-686691**| |**4**|**THE REVENUE DIVISIONAL OFFICER**| ||**MUVATTUPUZHA, ERNAKULAM-686661**| |**5**|**THE NELLIKUZHI GRAMA PANCHAYATH**| ||**REP. BY ITS SECRETARY, NELLIKUZHI P O, 686691**| |**ADDL R6**|**STATE OF KERALA,**| ||**REPRESENTED BY CHIEF SECRETARY.**| ||**(ADDITIONAL R6 IS SUO MOTU IMPLEADED AS PER**| ||**ORDER DATED 05/07/2021 IN WPC)**| ||**R1 TO R4 & R6 BY GOVERNMENT PLEADER**| ||**SMT.SHEEJA.C.S.**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C).No.17895/2013** **3** **P.V.KUNHIKRISHNAN, J. ------------------------------W.P.(C).No.17895 of 2013 ---------------------------------------------Dated this the 09[th] day of July, 2021** ## **JUDGMENT** Petitioners are residents of the Nellikuzhi Grama Panchayat. Land of many among the petitioners were acquired for the purpose of construction of Periyar Valley Irrigation Project. Now it is under the Water Resources Department. Admittedly some lands became surplus after construction of the canal. But those lands are needed for the protection of the canal on a permanent basis, petitioners submit. According to the petitioners, because of some political pressures, the Revenue Divisional Officer is proposing to handover the said surplus land to landless persons and steps are taking to survey the land close to the canal and allot them to the landless persons. According to the petitioners, if the same is done, it will be detrimental even to the canal. Ext.P2 is a letter issued by the Chief Engineer, Project-II, Thiruvananthapuram directing the Superintending Engineer, Project Circle, Muvattupuzha to find out vacant land available under each project for Tourism. Ext.P3 is a copy of the communication, **4** ## **W.P.(C).No.17895/2013** which, according to the petitioners, is from the Chief Engineer, Project-I, Kozhikode to explore the possibility of setting up of solar power panels in irrigation canals. Ext.P5 is a copy of the communication by the Managing Director of Kerala SIDCO. It is also stated in the writ petition that the Kerala State Electricity Board also written to the Executive Engineer to make use of the land for their purpose. Ext.P6 is the letter. It is submitted by the petitioners that there are contradictory proposals from various departments to use excess land close to the Periyar Valley Canal in Kuttilanji, Iramalloor, etc. The Senior Counsel for the petitioners submitted that the properties were acquired for a specific purpose. The Senior Counsel takes me through Ext.P1 judgment of this Court. The relevant portion of Ext.P1 is extracted herein: _“As per the Land Acquisition Manual, if there is surplussage after the project for acquisition is completed, it cannot be permanently leased out. If it is not required for the purpose, it has to be sold in public auction (see pages 255-256 Kerala Land Acquisition Manual 1981 Edition). Such land cannot therefore be available for allotment or assignment to landless persons.”_ **5** ## **W.P.(C).No.17895/2013** In such circumstances this writ petition is filed with following prayers: - _i. To declare that the proposal to surrender lands now belonging to the Irrigation Department and found in excess after the implementation of Periyar Valley Irrigation Project within the Nellikuzhy Grama Panchayat, is illegal without jurisdiction and violative of the fundamental rights of the petitioners and the residents of the Nellikuzhy guaranteed under Articles 19 and 21 of the Constitution of India._ - _ii. To issue a Writ of Mandamus forbearing the respondents from surrendering any excess land of the Periyar Valley Irrigation Project for any other purpose including for setting up solar project._ - _iii. To issue such other writs, orders or directions as this Hon'ble Court may deem fit and proper in the circumstances of the case._ 2. A counter affidavit is filed by the 4[th] respondent raising several contentions. The relevant portion of the **W.P.(C).No.17895/2013** **6** ## counter affidavit is extracted hereunder: _“A report in regard to these lands has been obtained from the Assistant Executive Engineer, PVIP Sub Division No.VI, Perumbavoor. Assistant Executive Engineer has reported that Periyar Valley Irrigation Project canals have been constructed during 1970-75 period. During that period, the removal of excavated sand and rocks from the canal area was a major issue owing to the lack of modern machineries and road access. Hence a large number of plots have been acquired, adjacent to the canal route, to deposit the excavated earth and rocks. Assistant Executive Engineer has reported that such dumping yards still remain in the possession of the Irrigation Department which remains vacant. The construction work of the canals were completed long back and excess land acquired for dumping waste materials which still remains vacant can be utilized for the rehabilitation of the landless people in the District.”_ 3. Heard the Senior Counsel Sri.K.Ramkumar and the Government Pleader. 4. According to the Senior Counsel, in the light of Ext.P1 judgment, action of the respondents will not stand. The Senior Counsel also submitted that several departments are trying to take possession of this land. The Senior Counsel submitted that it is legally not possible. The Government **7** ## **W.P.(C).No.17895/2013** Pleader submitted that there is no proposal from the KSEB. KSEB already purchased land at Ashamannoor Village and they are not trying to get this property. According to the Government Pleader, the intention is only to give this land to landless people. According to the Senior Counsel, it is legally impossible. The Senior Counsel also relied on the judgment of the Apex Court in **State of Haryana and Others v. Gurcharan Singh and others [2004 (12) SCC 540]** . 5. When this writ petition came up for consideration, it was admitted and an interim stay restraining the surrender of excess land of Periyar Valley Irrigation Project for any other purpose including for setting up solar project was granted by this Court. That interim order was extended until further orders subsequently. The Senior Counsel for the petitioners submitted that this is a matter to be looked into by the Government in detail. This property cannot be given to landless people and it is acquired for a specific purpose. The Senior Counsel also relied on the judgment mentioned above. In the light of the above submission, I think the matter can be referred to the additional 6[th] respondent. The additional 6[th] respondent will hear the petitioners and all **8** ## **W.P.(C).No.17895/2013** other affected parties. Thereafter the additional 6[th] respondent will decide the issue in accordance to law and communicate the same to the petitioners. The additional 6[th] respondent will pass appropriate orders after hearing all the affected parties, as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment. Till then, the interim order already passed by this Court will continue. With the above observations, this writ petition is disposed of. JV Sd/- **P.V.KUNHIKRISHNAN JUDGE** **9** ## **W.P.(C).No.17895/2013** ## **APPENDIX OF WP(C) 17895/2013** **PETITIONER ANNEXURE EXT.P1 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN OP 8049 OF 1998 DTD 10/6/1998 EXT.P2 TRUE COPY OF THE LETTER DTD 30/4/2013 FROM THE CHIEF ENGINEER TO THE SUPERINTENDEING ENGINEER EXT.P3 TRUE COPY OF THE COMMUNICATION DTD 13/4/2012 OF THE CHIEF ENGINEER EXT.P4 TRUE COPY OF THE COMMUNICATION DTD 19/6/2012 OF THE EXECUTIVE ENGINEER EXT.P5 TRUE COPY OF THE COMMUNICATION OF THE KERALA SMALL INDUSTRIES DEVELOPMENT CORPORATION EXT.P6 TRUE COPY OF THE COMMUNICATION DTD 7/3/2013 OF THE KSEB EXT.P7 TRUE COPY OF THE LETTER DTD 4/7/2013 OF THE ASST.EXECUTIVE ENGINEER EXT.P8 TRUE COPY OF THE REPRESENTATION DTD 29/6/2013 SUBMITTED BY THE PETITIONERS AND OTHERS**