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2017 DIGILAW 594 (KER)

K. S. ALI v. STATE OF KERALA

2017-03-27

DEVAN RAMACHANDRAN

body2017
JUDGMENT : DEVAN RAMACHANDRAN, J. 1. The dynamics of the jurisdiction authorised by Article 226 of the Constitution of India and the potential for affirmative action under it as part of ecology and biodiversity jurisprudence animates me in my thoughts and considerations of the several issues thrown up in this batch of writ petitions. 2. Biodiversity is our natural capital making up the living landscape around us. It influences the food we eat, the medicine that we administer, the clothes that we wear and everything else relating to our life. It is the variety of life and includes plants and animals with all its genetic variations and complex natural ecosystems that support them. It is the core component of sustainable development underpinning economic growth and has climacteric role in developing locally distinctive and sustainable societies. 3. Conservation of biodiversity is vital to response to climate change and in the delivery of key ecosystem services like food, flood management, pollination, clean air and water. Conservation includes restoring and enhancing species, populations and habitats and in the optimal sustainable yield in the use of natural resources. 4. The lotic ecosystem and in particular freshwater systems with rivers, lakes, reservoirs, creeks, springs and ponds, as its unexpendable and constitutive components, are vital and acme to an environment adequate and suitable for health and well being. It is the primary, if not, the only source for drinking water, ground water re-charging, flood control and all biodiversity, including indigenous flora, fona and biota. Wildlife habitats, woodlands, wet land, mangroves, etc. are the carbon sinks of the planet which absorb and operate as a receptacle for containment of pollution and creation of environment in which human life can thrive. These systems are important in decimating heat and wave energy, maintaining sufficient oxygenation and to provide for fingerlings and other treasures in the water systems. 5. It is the constitutional obligation of every citizen, under Articles 49 and 51A to bring, any act of depredation to the ecology or biodiversity, to the notice of the competent public authorities who are burdened with a reciprocal obligation to take cognizance of the same and to take appropriate action as is mandated by the various laws and regulations intended for is protection. 6. Public authorities have a key role in conservation of biodiversity through their functions of policy implementation and legal enforcement. 6. Public authorities have a key role in conservation of biodiversity through their functions of policy implementation and legal enforcement. They have statutory duties to identify and take the opportunity to integrate biodiversity considerations and key indicators to protect and enhance it. The law obligates them to take every step necessary for protection, enhancement and restoration of natural environment and resources and use them equitably. The various statutes obligate the public authorities to obtain optimal sustainable yield in the use of natural resources and to prevent and cease deleterious action against environment. 7. It is not that we lack suitable legislations or regulations. It is that our response to such regulations are often very casual and lackadaisical leading to little or no consequence to the perpetrators of depredation. 8. I think time has come to put a firm hand against such violations and transgressions since we cannot afford to be blind to these in future. 9. All these writ petitions contain essentially similar averments and assertions quad hoc the Vembanat Lake; leit motif of the allegations in these cases being that a certain Sri. Paulachan Maniyamkot, who is a respondent in all the writ petitions, has either encroached into the Lake or that he has committed several acts which fall foul of the statutory provisions relating to Coastal Zone Regulation, Kerala Panchayat Raj Act, the Land Conservancy Act and such other. 10. I do not propose to go deep into any of these allegations, since I am certain, recognising the now oft stated jurisdictional constraints of this Court while acting under Article 226 of the Constitution of India, in dealing with adjudication and conclusions on disputed facts. I am firm in my view that it is not within the province of this Court to enter into an evaluation or adjudication of these allegations which are purely in factual purlieus and therefore, are within the jurisdictional domain of the competent statutory authorities, to be taken cognizance of by them. 11. The common strain, however, of the various plea in these writ petitions is that the Authorities are remaining purblind to all these transgressions, as have been specifically alleged and that they are occluded in their sight when instances of even flagrant violations are brought to their notice. 12. There are several statutes in play in the various allegations in these writ petitions. 13. 12. There are several statutes in play in the various allegations in these writ petitions. 13. As I have already noticed, the essential allegation is against a certain Sri. Paulachan Maniyamkot that he has encroached into the Vembanad Lake and that he has accomplished this by manipulations and interpolations of the revenue and attendant records. 14. I am not saying that these allegations are proven. I am not even saying that these allegations are credible. I am saying that these are the allegations made. 15. On these allegations, I have to ask myself whether I should go into any inquiry or whether I should now make the statutory and competent authorities exercise jurisdiction that is vested in them, by the various statues, culminating in appropriate orders and action against the perpetrators of violation or acts of offence in terms of such Statutes or Regulations. 16. I am certain in my opinion that if it is not within the jurisdictional confines of this Court to act like an investigator or to probe inquisitorially into any of these allegations or any of the actions that are attributed to the alleged offenders. These are issues which will have to be looked into and which is better done by the experts in the field who have the competence to evaluate the facts much more than this Court as also the infrastructure to cause inquiry and investigation into these acts as are alleged. 17. Being guided by this view of mine, I have earlier issued two orders in this writ petition; one on 20.02.2017 directing the District Collector, Ernakulam to obtain reports from respondents 4 and 6, namely, the Tahsildar, Kanayannoor and Superintendent of Survey and Land (Re-survey), Tripunithura and to bestow his personal attention to the allegations contained in the writ petition on an urgent footing; and the second on 16.03.2017, where I directed the District Collector, Ernakulam to inform this Court the violations that he has noticed, if there are any, and the action that he proposes. I had also, by order dated 03.03.2017, permitted the Coastal Zone Management Authority to identify the violations, as has been recorded by them in their reports, and granting them liberty to initiate and pursue action as are required by the law relating to the Coastal Zone Management. 18. In response to my order dated 16.03.2017 the District Collector, Ernakulam is present in Court personally. 18. In response to my order dated 16.03.2017 the District Collector, Ernakulam is present in Court personally. I had, therefore, the opportunity of interacting with him and he told me that he has visited the site personally and that he intends to take action as would be appropriate, going by the inquiry and investigation to be conducted ahead. He has also filed a report on record, wherein, in obedience to the directions that I have issued on 16.03.2017, he has detailed the suspected violations, the actions that he proposes to initiate and the manner in which it will be pursued. The relevant portions of that report requires to be read in full and I, therefore, deem it necessary to extract the same, which is as under: "As per the aforesaid order, this Hon'ble Court directed to file a report specifying the following: (i) The provisions of law suspected to have been violated. (ii) The actions proposed in the matter and the manner in which the actions are to be taken. (i) Suspected violations (a) There is strong suspicion that CRZ notification has been violated. (b) As there is allegation that Survey Adalath records were manipulated and there is suspicion that they were so manipulated, this if proved correct amounts to violation of the provisions of Survey and Boundaries Act and Rules. (c) If the allegation of manipulation in survey Adalat records are correct it will attract offences under the Indian Penal Code. And action there under will be taken. (d) If there is such manipulations involving the officials it may amount to violation of the Kerala State Subordinate Service Rules. (e) As there is allegation that the Pattayams involved in the matter are forged there is suspicion of forgery which may attract offences under Indian Penal Code and violation of the Kerala Aland Assignment Act and Rules. (ii) The actions proposed and the manner in which actions are to be taken. (a) On the alleged CRZ violation, the Secretary, Kumbalam Grama Panchayath and Village Officer, Kumbalam will be directed to take action. Action has also to be taken to the CRZ activities. (b) Enquiry will be conducted by the Deputy Director of Survey and Land Records on the alleged anomalies in the Survey Adalat Files. (a) On the alleged CRZ violation, the Secretary, Kumbalam Grama Panchayath and Village Officer, Kumbalam will be directed to take action. Action has also to be taken to the CRZ activities. (b) Enquiry will be conducted by the Deputy Director of Survey and Land Records on the alleged anomalies in the Survey Adalat Files. (c) If any forgery or manipulation is detected appropriate action will be taken against the culprits including registering cases for commission of offences under the Indian Penal Code. (d) If trespass on Government land is detected necessary action will be taken under the Kerala Land Conservancy Act. (e) If the pattayams are found to be not genuine appropriate action under the Kerala Land Assignment Act and Rules will be taken by giving appropriate directions to the Tahsildar, Kanayannur." 19. It is gratifying that the District Collector, Ernakulam has now taken it upon himself to ensure that the violations, as are alleged and as are noticed, be addressed and taken care appropriately in terms of law. The District Collector, as is discernible from his report above, appears to suspect that there is violation of the CRZ notifications and that there are manipulations in the survey and other records and also that the Pattayams which have been issued may also have been forged or otherwise manipulated. 20. These are only suspicions and I affirm it only as such. Any action subsequent to these suspicions and allegations will have to be mounted and foundationalised on proper enquiry and investigation to be conducted by the various authorities acting under the command of the District Collector. The Coastal Zone Management Authority would also have a role to play in this and the District Collector will be required to take them also into confidence while proceeding further to take recourse to the action that he has proposed in his report. 21. I see several actions that are proposed in the report as has been extracted above. I hope and I am certainly confident that the District Collector, who is present before me today, will rise to the occasion and take such action as is required, based on apposite investigation and enquiry, as would be appropriate to redress all the allegations as also the suspected transgressions and offences alleged to have been committed by various offenders. 22. This is not merely an adversarial lis. 22. This is not merely an adversarial lis. I am concerned about the lakes and the biodiversity that will have to be protected for public good and not allowed to be depredated for private interests. Lakes are the greatest source of water and it is based on this that the entire biodiversity of our nation depends on. It is the statutory duty of the District Collector, as the head of the District, to take action when it is brought to his notice that violations and transgressions are being committed without having to wait for any formal orders from this Court. 23. I am concerned that even though these writ petitions have been pending for the last three or four years, action was proposed and initiated only when this Court passed orders in a slightly harsh tenor. The intention of this Court is not to recriminate any Officer as being suspect or guilty. My intention is to ensure that action is taken as per the various Statues, Rules and Regulations, in the manner as is mandated, and to culminate and conclude it appropriately, in terms of the law, without reservation and without exception. This is my sole endeavour and I am sure, as I have indicated above, that the District Collector will not fail me. 24. I have said that I have confidence in him because the report that has now been filed luculently specifies the action that he proposes and clearly denotes as to why he proposes such action. This is worth of praise and I commend him for the effort in making the report that has been placed before this Court. 25. The above having been said, the intrinsic worth of the report will be tested by and will depend upon the action to be taken on it to make it really worthwhile. If no action is taken pursuant to these reports, such reports are worth not even the paper it is printed on. Therefore, the reports will have to be justified by the action that is proposed and such action will have to be foundationalised on the rule of law and the march of due procedure, as is required. 26. I must hasten that even though actions are proposed in the report, such action will have to be taken only by following the procedure, as is prescribed under law. 26. I must hasten that even though actions are proposed in the report, such action will have to be taken only by following the procedure, as is prescribed under law. What I mean to say is if any action is proposed against any of the offenders, he will have to be notified in the manner as is legally required and such action be taken strictly in conformity and compliance of all the relevant Statues and procedures as are imperated under them. No action can be taken without a proper and valid notice to those against whom it is proposed and without following the mandatory processual requirements. This, I think would be the best way forward for the administration to take action against the violations and the offenders. 27. I propose to close these writ petitions by the these directions because I think it will be now left to the District Collector to take such fitting action as is warranted. 28. I am also firm that the directions in this judgment may not be construed to be authorising any action to the detriment of the alleged offenders except as per the provisions of law. They would obviously have all remedies, as are available to them under the various statues, as when action is proposed by the District Collector or by the various other competent authorities or agencies. 29. As far as the petitioners in these writ petitions are concerned, they have played their role with aplomb by placing before this Court materials and documents in support of their allegations that certain violations have been committed and that competent action be taken. That having been done, their role is now complete but they would have all liberty to approach the District Collector or such other competent authority, as and when it is required and if they are of the view that any further material or information is to be provided, which material or information will definitely be taken into account by the competent authorities, including the District Collector in their enquiry or investigation into the alleged violations as are projected in these writ petitions. 30. It is needless to say that the respondent against whom these violations are alleged, namely Sri. 30. It is needless to say that the respondent against whom these violations are alleged, namely Sri. Paulochan Maniyamkot, would also have every liberty to place before the District Collector or such other competent authorities such information or such materials as would be required and requisite for proving his case or his claims over the property. Nothing contained in this judgment shall be construed as inhibiting the rights of any of the parties in these cases in proving their assertions or in having an opportunity of substantiating their part of their claim. 31. Since I am asking the District Collector to have a comprehensive and holistic view of all the issues in these writ petitions, I direct him to cause such inquiry and investigation, if required, afresh without being constrained by any of the proceedings in these writ petitions or by any of the interim orders passed by this Court, except where such orders have mandated and authorised him to take such action as is warranted under the various statutes. 32. I know and notice that several orders are impugned in these writ petitions. I hear the various counsel, including the learned Senior Counsel Sri. Raju Joseph appearing for the petitioners, seek vehemently that these orders be set aside. I do not propose to do so because I trust the District Collector to see whether any further action pursuant to such orders will be required to be taken. If, after the inquiry and investigation as ordered herein, the District Collector is of the view that the impugned orders are bad for any reason or that no further action need be taken pursuant to those, he will be at liberty to pass fresh orders on such issues and the parties will abide by the directions contained therein, subject of course to their remedies or rights as are conceded under the statutes and laws. 33. I direct the District Collector to complete this exercise as afore directed, as expeditiously as possible, but not later than six months from the date of receipt of a copy of this judgment. In the meanwhile any improvement or construction or any change in the nature of the land involved in these cases will be done by the parties only with the explicit and express permission of the District Collector and in no other situation whatsoever. In the meanwhile any improvement or construction or any change in the nature of the land involved in these cases will be done by the parties only with the explicit and express permission of the District Collector and in no other situation whatsoever. I hope that the District Collector would be in a position to complete this inquiry within the time granted herein but, if for any reason he requires further time, I give him the liberty to seek such extension, as is imperatively warranted, which will be considered by this Court depending upon the status of the enquiry at the relevant time. 34. The writ petitions are thus ordered. In the facts and circumstances of the case, I make no order as to costs and the parties are directed to suffer their respective costs.