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2025 DIGILAW 788 (KER)

Aji Joseph S/o C. v. Joseph VS State Of Kerala

2025-04-02

ANIL K.NARENDRAN, MURALEE KRISHNA S.

body2025
JUDGMENT Muralee Krishna, J. These writ petitions are filed under Article 226 of the Constitution of India by the petitioners who are occupying properties by the side of Panniyar river at Pooppara in Idukki District. W.P.(C)No.17702 of 2024 is filed by the petitioner therein seeking a writ of mandamus commanding the 5 th respondent to decide on the regularisation and occupation of 5 cents of property in survey No.23/1 of Pooppara Village under the Kerala Land Assignment (Regularisation of Occupation of Forest Lands prior to 1.1.1977) Special Rules 1993, within a time limit fixed by this Court and a writ of mandamus commanding respondents 2 to 4 not to evict the petitioner from the aforesaid 5 cents of property before deciding the entitlement of the petitioner for regularization of occupation/assignment by the 5 th respondent. W.P.(C)No.20022 of 2024 is filed by the petitioners therein seeking a writ of mandamus commanding the respondents not to evict them before deciding the scope of rehabilitation of affected persons of the eviction drive of the 1 st respondent State of Kerala as ordered by this Court in Ext.P19 common order dated 14.02.2024 in W.P.(C) Nos.4224 and 5077 of 2024 and a writ of mandamus commanding respondents 2 to 4 not to evict the petitioners from the properties in their possession before finalisation of S.L.P. (Civil) No.17060 of 2024 before the Apex Court. 2. The petitioner in W.P.(C)No.17702 of 2024 pleaded that his father C.V Joseph purchased 7 cents of property in survey No.23/1 of Pooppara Village prior to 1977 from one P.V Pappachan. His father had constructed a building bearing No.472/III of Santhanpara Panchayat and it was renovated from time to time. Tea Shops, stationery shops and even toddy shops were running in the building with the licence issued by the Panchayat. Even prior to 1977 the petitioner and his family possessed the land and the building. The petitioner has applied for assignment and regularisation of possession of 5 cents out of these 7 cents. On 20.10.2023 the Secretary of Santhanpara Panchayat issued Ext.P5 memo to the petitioner directing to demolish the unauthorized construction allegedly made in the building. Even prior to 1977 the petitioner and his family possessed the land and the building. The petitioner has applied for assignment and regularisation of possession of 5 cents out of these 7 cents. On 20.10.2023 the Secretary of Santhanpara Panchayat issued Ext.P5 memo to the petitioner directing to demolish the unauthorized construction allegedly made in the building. The Tribunal for Local Self Government Institution, Thiruvananthapuram passed Ext.P6 order dated 02.11.2023 restraining the Panchayath from taking any action on the basis of Ext.P5 memo and directed the Panchayat to take fresh proceedings after identifying the property of the petitioner and demarcating the alleged encroachment over the puramboke land. One Thaskand and Baiju who made constructions in river puramboke in survey No.23/1 of Pooppara village were ordered to be evicted by the 2 nd respondent and the said order was challenged by them before this Court by filing W.P.(C)No. 37424 of 2023. In that writ petition, the learned Government Pleader submitted that 56 encroachers of river Purmaboke were identified by the Government. Accordingly, by Ext.P7 interim order dated 21.11.2023 this Court directed the Revenue officials to remove the identified 56 encroachers in a time-bound manner. Subsequently, by Ext.P8 final judgment dated 17.01.2024 in that writ petition this Court directed removal of the encroachers in a time-bound manner. On the basis of Ext.P7 order, the 4 th respondent issued Ext.P9 order dated 16.12.2023 directing eviction of 42 persons including the petitioner. The petitioner was issued with Ext.P10 notice dated 16.12.2023 by the 4 th respondent under Section 13A of the Kerala Land Conservancy Rules. On 07.02.2024 without prior information, the respondents came with Police assistance and took possession of a portion of the building of the petitioner and permitted him to occupy the portion where the employees are residing. Against Exts.P9 and P10, the petitioner preferred Ext.P13 revision petition dated 03.02.2024 before the 2 nd respondent District Collector, Idukki. The petitioner challenged the eviction proceedings also before this Court by filing W.P.(C)No.5077 of 2024. Some other evictees also filed W.P.(C)No.4224 of 2024 before this Court. By Ext.P14 common order dated 14.02.2024 both the writ petitions were disposed of by this Court directing the 2 nd respondent District Collector and Santhanpara Grama Panchayat to consider the scope of rehabilitation of the evictees. Some other evictees also filed W.P.(C)No.4224 of 2024 before this Court. By Ext.P14 common order dated 14.02.2024 both the writ petitions were disposed of by this Court directing the 2 nd respondent District Collector and Santhanpara Grama Panchayat to consider the scope of rehabilitation of the evictees. Only a portion of the building is situated in the river puramboke and the remaining portion of the building is situated in Government puramboke property suitable for assignment /regularisation of occupation as per Special Rules 1993. The name of the petitioner is included in the list of persons eligible for assignment of property under Special Rules 1993. If respondents 2 to 4 succeed in evicting the petitioner from the remaining portion of the building before deciding his eligibility for assignment of land, irreparable injury and great hardship will be caused to him. Hence he filed the writ petition. 3. According to the petitioners in W.P.(C)No.20022 of 2024 they have been in occupation of portions of vast puramboke property available by the side of Panniyar River for more than 40 years. They have put up houses on that property. The 2 nd respondent District Collector ordered eviction of one Thaskand and Baiju who made constructions in the river puramboke in survey No.23/1 of Pooppara Village. The said order was challenged by those persons before this Court in W.P.(C)No. 37424 of 2023. The said writ petition was finally disposed of by Ext.P15 judgment dated 17.01.2024 which is mentioned as Ext.P8 in W.P.(C)No. 17702 of 2024. On the basis of Ext.P14 order, the 4 th respondent Tahsidlar, Udumbanchola issued Ext.P16 order dated 16.12.2023 directing eviction of 42 persons including the petitioners. On 07.02.2024 the respondents came to the building of the petitioners with Police assistance and took possession of a portion of the buildings and permitted them to occupy the residential buildings, by preparing Exts.P17 and P18 mahazars dated 07.02.2024. The petitioners further pleaded that as per Ext.P19 common order dated 14.02.2024 of this Court in W.P.(C) Nos. 4224 of 2024 and 5077 of 2024 the 2 nd respondent was directed to consider the scope of rehabilitation of affected persons. In that order, it was further directed that any obstructive construction hindering the free flow of water in the river shall be removed and no action shall be initiated against other buildings without intimating this Court. 4224 of 2024 and 5077 of 2024 the 2 nd respondent was directed to consider the scope of rehabilitation of affected persons. In that order, it was further directed that any obstructive construction hindering the free flow of water in the river shall be removed and no action shall be initiated against other buildings without intimating this Court. It is also pleaded by the petitioners that some evictees approached the Hon’ble Supreme Court by filing S.L.P. (Civil) No.17060 of 2024 challenging Ext.P15 judgment of this Court wherein by Ext.P20 order dated 30.04.2024 the Hon’ble Apex Court ordered status quo with respect to persons who approached the Apex Court. The petitioners are also entitled for similar treatment as the Apex Court has already seized with the matter and similarly situated persons were granted interim order against further proceedings. 4. In W.P.(C)No.17702 of 2024, the 4 th respondent Tahsildar Udumbanchola filed a counter affidavit dated 08.11.2024 opposing the averments in the writ petition producing therewith Exts.R4(a) to R4(e) documents. Paragraphs 4 to 7, 9 and 10 of that counter affidavit read thus: “4. It is submitted that the petitioner had constructed a two storied building in 0.0316 Ha of land in resurvey numbers 185, 186 and 189 of Block 12 and a hotel and other commercial establishments were being run in the building. The building was evicted free of encroachment and the same was sealed. However a small portion of the building where some migrant employees were accommodated was left as such. 5. It is submitted that the instant writ petition is filed with a prayer to consider the assignability of land before demolition of the building in the encroached land. The petitioner is said to have submitted applications for assignment of the land under the provisions of the Kerala Land Assignment (Regularisation of Occupation of Forest Lands Prior to 01.01.1977) Special Rules, 1993 as evidenced by Exhibit P16 register. It is further contended that the petitioner is not eligible for assignment under the Rules as per Exhibit P15 Register prepared as part of resurvey. 6. It is submitted that as per Rule 2(f) of the Kerala Land Assignment (Regularisation of Occupation of Forest Lands Prior to 01.01.1977) Special Rules, 1993, the lands eligible for assignment should have been converted for non- cardamom cultivation prior to 1.1.1977 and covered in the Resurvey Records. 6. It is submitted that as per Rule 2(f) of the Kerala Land Assignment (Regularisation of Occupation of Forest Lands Prior to 01.01.1977) Special Rules, 1993, the lands eligible for assignment should have been converted for non- cardamom cultivation prior to 1.1.1977 and covered in the Resurvey Records. The occupation of the petitioner in 0.0316 Ha of land stands surveyed and demarcated as follows. Resurvey No. Extent Status of land as per Resurvey records 189 0.0171 Ha Government Road Puramboke 185 0.0089 Ha Government River Puramboke 186 0.0056 Ha Government Rock Puramboke land 0.0316 Ha 7. It is submitted that none of the parcels of land are recorded to have been occupied and converted for non- cardamom cultivation prior to 1.1.1977. Therefore, the question of assignment of land in favour of the petitioner does not arise at all. The petitioner, in the Writ Petition, undertakes to demolish the building in Road and River portions and specifically demands assignment of Rock Puramboke land. It is to be noted that the Rock Puramboke land in unauthorised possession of the petitioner is only a meagre 56 square metres in extent. Apart from a mentioning to the effect that one Mr. T K Poulose has encroached the land, there are no recordings in resurvey records to the effect that the petitioner has any pre - 1977 occupation in the land in question. As such, the petitioner has no eligibility for assignment of land in his favour. xxxxx 9. It is submitted that since the constructions made by the petitioner and others are encroaching the river puramboke, the Disaster Management Authority has initiated proceedings under the Disaster Management Act . The District Collector as the Chairperson of the Disaster Management Authority has issued proceedings dated 11.06.2024 to demolish 74 structures out of the 84 structures, as in the 14 buildings litigations pending before the Supreme Court. True copy of the proceedings of the District Collector and Chairperson of the District Disaster Management Authority, Idukki dated 11.06.2024 is produced herewith and marked as Exhibit R4(c). Subsequently, the Disaster Management Authority has conducteda meeting on 15.07.2024 and ratify the proceedings of the Chairperson, District Disaster Management Authority, Idukki, as contemplated under Section 26(2) of the Disaster Management Act . True copy of the proceedings of the District Disaster Management Authority, Idukki dated 15.07.2024 is produced herewith and marked as Exhibit R4(d). 10. Subsequently, the Disaster Management Authority has conducteda meeting on 15.07.2024 and ratify the proceedings of the Chairperson, District Disaster Management Authority, Idukki, as contemplated under Section 26(2) of the Disaster Management Act . True copy of the proceedings of the District Disaster Management Authority, Idukki dated 15.07.2024 is produced herewith and marked as Exhibit R4(d). 10. It is submitted that the petitioner had filed a Revision Petition before the District Collector as Ext.P13, challenging the proceedings of the Tahsildar, Udubanchola. After considering the said Revision Petition, the District Collector has rejected the same stating that the Revision is not maintainable and the appeal has to be filed before the RDO/Sub Collector under Section 16. True copy of the communication dated 16.08.2024 issued by the District Collector is produced herewith and marked as Ext.R4(e).” 5. In W.P.(C)No.20022 of 2024 also the 4 th respondent filed a counter affidavit dated 19.10.2024 opposing the averments in the writ petition and producing therewith Exts.R4(a) to R4(d) documents. It is contended in that counter affidavit that the land possessed by the petitioners is a river puramboke and not a road puramboke as claimed. Paragraphs 11 to 14 of that counter affidavit read thus: “11. The issues relating to eviction and demolition of structures as well as rehabilitation of evictees is being considered by the Hon'ble High Court of Kerala in WP(C) 1801 of 2010. Later, as directed by the Hon'ble High Court, a joint inspection of the area was ordered by the District Collector and the same has been completed by officers of the Departments of Revenue, Minor Irrigation, Local Self Government, Public Works and representative of the District Disaster Management Authority. It is found that during rainy seasons in the year, Panniyar River becomes flooded with water from tributaries as well as spilled water from Anayirankal Reservoir. During other seasons also the river is seen flooded owing to opening of Anayirankal Dam. On the day of inspection, even in summer, considerable flow of water through the river is noticed. The Joint Inspection Team has concluded that all the constructions in River Purampoke are causing obstruction to free flow of water. As such, all the constructions in the identified encroached land are to be demolished in order to ensure free flow of water through Panniyar river and to avoid contamination of river water. The Joint Inspection Team has concluded that all the constructions in River Purampoke are causing obstruction to free flow of water. As such, all the constructions in the identified encroached land are to be demolished in order to ensure free flow of water through Panniyar river and to avoid contamination of river water. True copy of the report submitted by Joint Inspection Team, dated nil is produced herewith and marked as Exhibit R4(a). True copy of sketch showing encroachment in river course and National Highway by the petitioners is produced herewith and marked as Exhibit R4(b). 12. It is submitted that since the constructions made by the petitioners and others are encroaching the river puramboke, the Disaster Management Authority has initiated proceedings under the Disaster Management Act . The District Collector as the Chairperson of the Disaster Management Authority has issued proceedings dated 11.06.2024 to demolish 74 structures out of the 84 structures, as in the 14 buildings litigations pending before the Supreme Court. True copy of the proceedings of the District Collector and Chairperson of the District Disaster Management Authority, Idukki dated 11.06.2024 is produced herewith and marked as Exhibit R4(c). Subsequently, the Disaster Management Authority has conducted a meeting on 15.07.2024 and ratify the proceedings of the Chairperson, District Disaster Management Authority, Idukki, as contemplated under Section 26(2) of the Disaster Management Act . True copy of the proceedings of the District Disaster Management Authority, Idukki dated 15.07.2024 is produced herewith and marked as Exhibit R4(d). 13. It is submitted that a number of encroachers are still utilising buildings in the encroached land for accommodation. This includes usage for purely residential accommodation as well as for accommodation to run the business in encroached lands. Three cases of encroachment are by construction of religious structures. Further, some of the evictees are still occupying space in front of the evicted structures and carrying out petty commercial business, even after eviction. The action further causes congestion in the National Highway passing nearby. The issue has to be taken care of by the authorities of National Highway Authority of India. 14. It is submitted that the flow of water through Panniyar river would be maximum during monsoon and when water from Anayirankal Reservoir is released occasionally. The action further causes congestion in the National Highway passing nearby. The issue has to be taken care of by the authorities of National Highway Authority of India. 14. It is submitted that the flow of water through Panniyar river would be maximum during monsoon and when water from Anayirankal Reservoir is released occasionally. Obstruction created to the natural flow of water has, in past, caused the flow to get deflected and water gushing to the buildings creating havoc to the entire human life and destruction to the private and public properties, and assets. Nobody has the right to interfere with the free flow of rivers and water channels, because the river flowing in its natural way is entitled to be protected and preserved for the welfare and well being of the people and future generations to come. So also, carrying out constructions by encroaching river bed is an act interfering with the right of citizenry to enjoy the free flow of river through its natural bed and thereby to live peacefully without any danger or destruction caused by the calamities occurring due to such human intervention. Still gravious is the contamination caused to river water which is being used by thousands of people downstream for their homely needs. The Government as well as the Local Self Government Institutions are trustees of the properties and the trust so reposed by the people are to be discharged by the State as well as other authorities with utmost care. Considering a similar situation the Hon'ble Supreme Court in Susetha v. State of Tamil Nadu and Others [ (2006) 6 SCC 543 ] held that "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 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. 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 )].” 6. Heard the learned counsel for the petitioners and the learned Senior Government Pleader. 7. The learned counsel for the petitioners submitted that the petitioners have been in occupation of property in question for the last several decades and their eviction from that property will cause irreparable hardship to them. 8. The learned Senior Government Pleader submitted that the Special Leave Petition filed by some other encroachers before the Apex Court was dismissed as per the order dated 28.01.2025. The petitioners have encroached into a river puramboke and made constructions, so as to prevent free flow of water through the river. The District Collector being the Chairman of the District Disaster Management Committee already took a decision against the petitioners. Hence the petitioners are not entitled for the reliefs sought in the writ petition. 9. The perusal of materials on record would show that this Court by an interim order dated 21.11.2023 in W.P.(C) 37424 of 2023 directed to remove the encroachers from the Government property in Pooppara Village. That direction was made absolute as per the judgment dated 17.01.2024 passed in that writ petition. The Special Leave Petition filed by some of the encroachers before the Apex Court is now stand dismissed as per the order dated 28.01.2025 in petition for Special Leave to Appeal (C) No.10637 of 2024 which was previously bearing Special Leave Petition (Civil) diary No.17060 of 2024. The claim of the petitioners in these writ petitions was based on the interim order dated 30.04.2024 granted by the Apex Court in that Special Leave Petition. Since the Special Leave Petition now stands dismissed, the petitioners’ claim based on the interim order initially granted by the Apex Court will not stand at present. 10. The Government has already taken a decision to evict the petitioners from the encroached land and they were partially evicted by invoking the provisions under the Kerala Land Conservancy Act . Since the Special Leave Petition now stands dismissed, the petitioners’ claim based on the interim order initially granted by the Apex Court will not stand at present. 10. The Government has already taken a decision to evict the petitioners from the encroached land and they were partially evicted by invoking the provisions under the Kerala Land Conservancy Act . It was at that time some of the encroachers approached this Court by filing W.P.(C) No.4224 and 5077 of 2024 and W.P(C)No. 37424 of 2023. But all those writ petitions were disposed of by this Court as said above. In the judgment dated 17.01.2024 in W.P.(C)No.37424 of 2023, this Court directed the removal of encroachment in a time-bound manner and that was partially effected also. However, further proceedings were stalled due to the pendency of the Special Leave Petition before the Apex Court. Now that proceedings also ended in dismissal. 11. From the documents produced along with the counter affidavit it is evident that the District Disaster Management Committee found that the unauthorised construction effected by the petitioners caused hindrance to the free flow of water through the river. The petitioners could not produce any documents to prove that their occupation of the river puramboke can be regularised under any of the provisions of law. The pleadings pertaining to the same are completely absent in these writ petitions. In such circumstances, the petitioners are not entitled for the reliefs sought in the writ petitions. In the result the writ petitions stand dismissed.