Kerala High Court
Achuthan vs The District Collector on 30 July, 2021
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
WP(C) NO. 27485 OF 2019
PETITIONER:
ACHUTHAN,
AGED 61 YEARS
S/O.KARUNAKARAN, VADAKEVALATH HOUSE, CHERANALLOOR
VILLAGE, SOUTH CHITOOR.P.O, KOCHI-682027
BY ADV M.VANAJA
RESPONDENTS:
1 THE DISTRICT COLLECTOR,
COLLECTRATE, KAKKANAD-682021
2 THE REVENUE DIVISIONAL OFFICER,
FORTKOCHI-682001
3 THE SECRETARY
CHERANALLOOR GRAMA PANCHAYATH, CHERANELLOOR, SOUTH
CHITTOOR.P.O, KOCHI-682027
4 ADDL.R4.THANKAPPAN
AGED 68 YEARS
S/O.VASU, AGED 68,NADUVILMANAPURATHU,
VALAM KARA, EDAYAKUNNAM, CHERANALLOOR VILLAGE,
CHERANALLOOR, SOUTH CHITTOOR.P.O, KOCHI-682 027.
5 ADDL.R5.VALLY W/O.DASAN,
AGED 69, MATTUMMEL HOUSE,
VALAM KARA,EDAYAKUNNAM, CHERANALLOOR VILLAGE,
CHERANALLOOR, SOUTH CHITTOOR.P.O, KOCHI-682 027.
6 ADDL.R6.TASHMON S/O.DASAN,
AGED 48,MATTUMMEL HOUSE,
VALAM KARA,EDAYAKUNNAM, CHERANALLOOR VILLAGE,
CHERANALLOOR, SOUTH CHITTOOR.P.O, KOCHI-682 027.
ADDL.RESPONDENTS 4 TO 6 ARE IMPLEADED AS PER ORDER
DATED 7-11-2019 IN IA 1/2019.
7* ADDL. R7 THE TAHSILDAR,
WP(C) NO. 27485 OF 2019
2
KANAYANNUR TALUK, KANAYANNUR TALUK OFFICE,
ERNAKULAM
8* ADDL. R8 THE TALUK SURVEYOR,
KANAYANNUR TALUK, ERNAKULAM.
*(ADDITIONAL RESPONDENTS 7 AND 8 ARE IMPLEADED AS
PER ORDER DATED 30.07.2021 IN W.P(C)NO.27485 OF
2019)
BY ADVS.
GOVERNMENT PLEADER
SRI.T.K.AJITHKUMAR (VALATH)
P.MARTIN JOSE
SRI. SUNIL KUMAR KURIAKOSE - GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 30.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 27485 OF 2019
3
JUDGMENT
I had heard this writ petition earlier and had delivered a judgment dated 10.12.2019. However, the 3rd respondent filed R.P.No.492 of 2021, which was allowed, leading to the judgment being recalled for the reasons stated in the order therein.
2. It is in such circumstances that this matter is being considered by me today and both sides pray that the writ petition be disposed of afresh, taking note of the changed circumstances. I, had, therefore, heard the writ petition again today and thus proceed to dispose it of through this judgment.
3. The petitioner has approached this Court with a singular allegation that his property is inundated during rains on account of the fact that a nearby 'Thodu' which had been in existence from time immemorial, has been encroached upon by various persons, including respondents 4 and 6. He, therefore, prays that the 1st respondent - District Collector be directed to immediately reopen the WP(C) NO. 27485 OF 2019 4 'Thodu' with the assistance of the 3rd respondent - Secretary of the Cheranaloor Grama Panchayat, so as to avoid water-logging in future.
4. In response, the learned Senior Counsel, Sri.S.Sreekumar, instructed by Sri.Martin Jose, learned counsel appearing for respondents 4 to 6, submitted that a detailed counter affidavit has been filed on record by his clients, wherein, they have produced certain documents, including Ext.R4(h), which demonstrate that even though his clients' properties have been included as 'purambokku' in the new resurvey report, the original survey numbers would render it luculent that the said properties are not 'purambokku' but private lands. He says that when his clients attempted to approach the competent Authorities under the Survey and Boundaries Act, for correction of the new resurvey report and sketch, they have been informed, through the aforementioned document, that this cannot be done without the 'No Objection Certificate' of the Panchayat, though, conceding that the properties, as per the original WP(C) NO. 27485 OF 2019 5 survey numbers, are not included as 'purambokku'.
5. The learned Senior Counsel thus asserts that there is a great amount of confusion as to the nature of the 'Thodu', as also the survey numbers involved; adding that, as of now, there is no such 'Thodu' and that even if there was one in the past, it was a private one, which was intended only for the benefit of his clients and no one else. He, therefore, prayed that the Secretary of the Grama Panchayat be directed to take appropriate action to construct a new 'Thodu' or a drainage for the benefit of the petitioner, rather than trying to restore the alleged old one, which is no longer in existence.
6. The learned Standing Counsel for the respondent-Grama Panchayat submits that it is true that the petitioner specifically asserts that there was an old 'Thodu' in the area in question; but that as of now, it remains fully filled up and in the possession of respondents 4 to 6 and such other WP(C) NO. 27485 OF 2019 6 persons. He added that, in fact, the Panchayat had, therefore, taken an earlier decision, namely Ext.R3(b), to construct a new drain for the benefit of the petitioner and that an amount of Rs.10 Lakhs had been allotted for the same. He then explained that when this proposal was sought to be implemented, it was found that the public drain, to which the new construction was to be connected, was on a higher level and therefore, that the storm water would not flow in the manner as was expected.
7. The learned Standing Counsel then submitted that, therefore, the Panchayat has now approached the 1st respondent - District Collector, as well as the jurisdictional Tahsildar and Taluk Suveyor, for completing the survey of the 'Thodu' in question, so that they can then restore it and find a lasting solution to the problem faced by the petitioner and various other persons in the locality. He prayed that the Panchayat be allowed to complete the said work, with a consequential direction being issued to the competent Authorities to grant them a complete WP(C) NO. 27485 OF 2019 7 survey report and to assist them in undertaking the same.
8. The learned Government Pleader, Shri.Sunil Kumar Kuariakose, submitted that the survey of the 'Thodu' has been done by the jurisdictional Tahsildar and the Taluk Surveyor, but offered that the 1st respondent - District Collector will grant all assistance for this purpose, as and when the Panchayat approaches him for such. He prayed that, therefore, this Court may allow the 7th and 8th respondents herein to complete the survey of the 'Thodu', assuring that the same can be done within a time frame to be fixed by this Court.
9. It is obvious from the afore narration of facts that a lasting solution to the petitioner's grievance can be obtained only if the 'Thodu' is properly renovated and made ready to receive the storm water during the monsoons. Since there are allegations that the 'Thodu' has been encroached upon by various persons, including the party WP(C) NO. 27485 OF 2019 8 respondents herein, I am certain that a proper survey of the same will have to be conducted by the respondents 7 and 8 herein and that the 1 st respondent - District Collector must ensure that this is done effectively and without any delay.
10. I notice from the materials and pleadings on record that an Interim Order had been earlier issued by this Court directing the 1st respondent - District Collector to take necessary action to restore the 'Thodu'. It transpires that an inspection was thereafter conducted by the District Collector, with the assistance of the Tahsildar and a report as under was placed before this Court.
"As per the Tahsildar's report a private 'thodu' was existing in the alleged land. When Resurvey was conducted the above mentioned thodu was categorised as Section 2 puramboke. Tahsildar reported that no such thodu is existing now and the land was in possession of private authorities/persons. It is also reported that on Field verification by Tahsildar and team, it is found that even if the thodu is reinstated, the water-logging cannot be eliminated permanently. In the above situation the permanent solution recommended by the Tahsildar is to construct a drainage in the nearby road and water to be diverted to a Big drain situated in western side."
11. The learned Government Pleader, therefore, WP(C) NO. 27485 OF 2019 9 submits that, in such scenario, the restoration of the 'Thodu' may not be practically feasible.
12. When I go through the report of the Tahsildar as above, it is certain that a very difficult predicament is now faced by the petitioner and by the persons of the locality. It is without doubt that their problem of inundation of water during monsoons will require a solution to be effectively found by the competent Authorities. They cannot be left to their destiny to be submerged in the storm water whenever there is a rain; and am thus of the firm view that the 1 st respondent - District Collector must find a solution to this problem effectively, with the assistance of all stakeholders.
13. Since the Panchayat today maintains that the report of the Tahsildar extracted above may not be accurate and that a proper investigation and survey of the 'Thodu' would make it clear that the storm water will be drained away property, I deem it WP(C) NO. 27485 OF 2019 10 appropriate that the District Collector be directed to find a solution to this issue in his capacity as the Chairperson of the District Disaster Management Authority also.
14. Pertinently, as per the Disaster Management Act, the said Authority certainly obtain overriding powers to ensure that the problem in question is mitigated to the extent possible and I am sure that the said Authority must now act.
Resultantly, I order this writ petition and direct the 1st, 7th, 8th respondents and the Secretary of the Panchayat to immediately inspect the area in question and find a solution to the problem projected by the petitioner, either by restoration of the 'Thodu' or through such other apposite methods. Once a proper decision is arrived at through such inspection, the same shall be intimated to the Panchayat through a proper proceedings; in which event the said Authority will complete the works that are required as expeditiously as is WP(C) NO. 27485 OF 2019 11 possible. During such inspection the 1st respondent will be at liberty to involve the party respondents and the petitioner in this case, however, without giving them any opportunity of intervening; as also to inspect their title documents to verify whether the alleged 'Thodu' is a public one and whether there is any encroachments on the same. For this purpose the 1st respondent will notify the party respondents and the petitioner appropriately.
Since the petitioner has been litigating before this Court for a last more than two years, I order that the inspection as ordered above shall be completed within a period of two months from the date of receipt of a copy of this judgment; and the Panchayat will, thereafter, depending upon the decision to be taken during such inspection, complete the work - either for restoration of the old 'Thodu' or for construction of such other water channel as may be found feasible, as expeditiously as is possible, but not later than four months thereafter.
WP(C) NO. 27485 OF 2019 12 I close this judgment leaving liberty to any of the parties of this case to approach this court for any clarification that may be required in future.
Sd/-
DEVAN RAMACHANDRAN JUDGE MC/4.8 WP(C) NO. 27485 OF 2019 13 APPENDIX OF WP(C) 27485/2019 PETITIONER ANNEXURE ANNEXURE A TRUE COPY OF REPRESENTATION SUBMITTED BEFORE THE CHERANALLOOR GRAMA PANCHAYAT DATED 18/11/2016.
ANNEXURE B TRUE COPY OF DECISION NO.17/1 DATED 31/03/2017 ISSUED BY THE PANCHAYAT COMMITTEE.
EXHIBIT P1 TRUE COPY OF BTR OF THE THODU IN CHERANALLUR PANCHAYATH, IN SY.NO.154/5 EXHIBIT P2 THE TRUE COPY OF THE REPORT SUBMITTED BY THE 3RD RESPONDENT DATED 09.7.2013 EXHIBIT P3 THE TRUE COPY OF THE ORDER PASSED BY THE HUMAN RIGHTS COMMISSION, DATED 8.10.2013 EXHIBIT P4 THE TRUE COPY OF THE ORDER IN APPEAL NO.55/14 DATED 11.12.2018 BEFORE THE PRINCIPAL DISTRICT COURT EXHIBIT P5 TRUE COPY OF THE APPLICATION FILED BEFORE THE 1ST RESPONDENT DATED 26.09.2019 EXHIBIT P6 THE TRUE COPY OF THE APPLICATION FILED BEFORE THE 2ND RESPONDENT DATED 26.09.2019 EXHIBIT P7 THE TRUE COPY OF THE APPLICATION FILED BEFORE THE 3RD RESPONDENT DATED 26.09.2019 RESPONDENT EXHIBITS EXHIBIT R3(A) TRUE COPY OF THE ORDER DATED 25.8.11 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT R3(B) TRUE COPY OF THE DECISION DATED 31.3.2017 ISSUED BY THE COMMITTEE OF THE CHERANELLOORE GRAMA PANCHAYAT.
WP(C) NO. 27485 OF 2019 14 EXHIBIT R4(a) TRUE COPY OF COMPLAINT FILED BY ONE MR.
JOY KULANGARA AND THREE OTHERS BEFORE THE 2ND RESPONDENT.
EXHIBIT R4(b) TRUE COPY OF OBJECTION DATED 23-11-2010 FILED BY THE RESPONDENTS TO EXHIBIT R4(a) COMPLAINT.
EXHIBIT R4(c) TRUE COPY OF REPRESENTATION DATED 12-11- 2008 FILED BY THE RESPONDENTS BEFORE THE REVENUE MINISTER.
EXHIBIT R4(d) TRUE COPY OF LETTER DATED 09-10-2009 ISSUED BY THE RESURVEY SUPERINTENDENT TO THE 3RD RESPONDENT.
EXHIBIT R4(e) TRUE COPY OF SKETCH NUMBERED AS C2- 2028/2010 PREPARED BY THE RESURVEY SUPERINTENDENT AND ENDORSED "NOT APPROVED".
EXHIBIT R4(f) TRUE COPY OF REVISED SKETCH PREPARED BY THE RESURVEY SUPERINTENDENT WITH RESPECT TO THE PROPERTIES OF ADDL. RESPONDENTS 5 & 6.
EXHIBIT R4(g) TRUE COPY OF PROCEEDINGS OF RESURVEY SUPERINTENDENT DATED 07-01-2010. EXHIBIT R4(h) TRUE COPY OF LETTER HAVING NO.H4- 14375(2)/2010 DATED 30-07-2010. EXHIBIT R4(i) TRUE COPY OF JUDGMENT DATED 18-07-2011 IN W.P.(c) NO. 18364 OF 2011 OF THIS HON'BLE COURT.
EXHIBIT R4(j) TRUE COPY OF ADDITIONAL OBJECTION IN CASE NO.F.5233/ 2008 FILED BY THE RESPONDENTS 4,5 AND 6 BEFORE THE 2ND RESPONDENT. EXHIBIT R4(k) TRUE COPY OF APPLICATION FILED BY THE RESPONDENTS 4,5 AND 6 BEFORE THE 2ND RESPONDENT.
EXHIBIT R4 (l) TRUE COPY OF PROCEDURE NO.F 5233/08/K DIS. DATED 25-08-2011 OF THE 2ND WP(C) NO. 27485 OF 2019 15 RESPONDENT.
EXHIBIT R4(m) TRUE COPY OF REPRESENTATION DATED 18-11- 2016 SUBMITTED BY RESPONDENTS 4,5 AND 6 BEFORE THE 3RD RESPONDENT.
EXHIBIT R4(n) TRUE COPY OF DECISION NO.17/1 DATED 31- 03-2017 ISSUED BY THE PANCHAYAT COMMITTEE.
EXHIBIT R4 (o) TRUE COPY OF JUDGMENT DATED 14-11-2019 IN WP(c) NO.23831 OF 2011 OF THIS HON'BLE COURT.
EXHIBIT R4(p) TRUE COPY OF APPLICATION DATED 13-11-2019 FILED BY THE PETITIONERS BEFORE THE ADDITIONAL TAHSILDAR AND SURVEY SUPERINTENDENT, KANAYANNUR TALUK.