Kerala High Court
K.J.Tomy vs State Of Kerala on 9 June, 2020
Equivalent citations: AIRONLINE 2020 KER 264
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 09TH DAY OF JUNE 2020 / 19TH JYAISHTA, 1942
WP(C).No.1812 OF 2016(S)
PETITIONER:
K.J.TOMY, AGED 63 YEARS,
S/O.JOSEPH, JESUS BHAVAN, KOCHAKKANADU,
KONTHURUTHY, ERNAKULAM.
BY ADV. SRI.RONY JOSE
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETRY TO GOVERNMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE CORPORATION OF COCHIN,
REPRESENTED BY THE SECRETARY, PIN-682 018.
3 THE DISTRICT COLLECTOR, ERNAKULAM 682 030.
4 THE TAHSILDAR,
KANAYANNUR TALUK, ERNAKULAM-682 021.
5 BHOORAHITHA SAMRAKSHANA SAMITHI,
AYIKODAN MANDIRAM, PERUMANOOR, KOCHI-682 015.
REPRESENTED BY ITS SECRETARY, SRI.P.R.RANEESH.
6 JOSEPH, AGED 45 YEARS,
S/O. CHACKO, PALAKAPILLY HOUSE, HOUSE NO.1830,
KONTHURUTHY-682 013.
* ADDL.R7 STEPHEN P.M., AGED 54 YEARS,
S/O. MATHEW PULICKAL PARAMBIL, ALEX ROAD, THEVARA,
ERNAKULAM VILLAGE, KONTHURUTHY P.O, PIN-682013.
* ADDL.R8 P.P. JOSEPH, AGED 67 YEARS,
S/O S/O THOMMAN, PARIMANATH, THEVARA,
ERNAKULAM VILLAGE, KONTHURUTHY P.O, PIN-682013.
W.P.(C).No.1812/2016 2
* ADDL.R9 T.A. FRANCIS, AGED 49 YEARS,
S/O. ANTONY, THALIKKASSERY, THEVARA,
ERNAKULAM VILLAGE, KONTHURUTHY P.O, PIN-682013.
* ADDL. ANTONY SILVIN, AGED 39 YEARS,
R10 S/O. T.O. ANTONY, THALIKKASSERY, THEVARA,
ERNAKULAM VILLAGE, KONTHURUTHY P.O, PIN-682013.
* (ADDL.R7 TO R10 ARE IMPLEADED AS PER ORDER
DATED 06/03/2017 IN IA.2864/2017)
ADDL. T.V. MATHAI, S/O.LATE VARGHESE, AGED 71 YEARS,
R11 THEKKEKANATTU HOUSE, THEVARA P.O., KONTHURUTHI
ROAD, KOCHI-682 013.
ADDL. MOLLY GORGE, W/O.LATE A.S. GEORGE,
R12 AGED 75 YEARS, ANDTHATHU HOUSE, THEVARA P.O.,
KONTHURUTHI ROAD, PIN-682 013.
** (ADD. R11 & R12 ARE IMPLEADED VIDE ORDER
DATED 06/01/2020 IN IA.3/2019.)
R1, R3 & R4 BY SENIOR GOVERNMENT PLEADER
SRI.ARAVINDAKUMAR BABU
R2 BY ADV. SRI.V.E.ABDUL GAFOOR,SC,COCHIN
CORPORATION
R6 BY ADVS. SRI.SAM ISAAC POTHIYIL
SMT.TINU JOHNSON
SRI.VISHNU DAS
SRI. SRUTHI DAS
SRI.JOMON P MOHAN
R7 TO R10 BY ADV. SRI.SAJI VARGHESE
KAKKATTUMATTATHIL
R11 BY ADV. SRI.J.ABHILASH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 27-01-2020, THE COURT ON 09-06-2020 DELIVERED THE
FOLLOWING:
W.P.(C).No.1812/2016 3
JUDGMENT
Dated this the 9th day of June, 2020 S.Manikumar, CJ.
Instant public interest writ petition has been filed assailing inaction on the part of respondents 1 to 4, i.e. State of Kerala, represented by the Chief Secretary to Government; Corporation of Cochin, represented by the Secretary; District Collector, Ernakulam; and Tahsildar, Ernakulam, in taking adequate steps to prevent illegal encroachments and reducing the width of Konthuruthy river at the behest of Bhoorahitha Samrakshana Samithi, Perumanoor, Kochi, represented by its Secretary, (respondent No.5). The reliefs sought for in the writ petition are as under:
"i) Issue a writ of mandamus or other appropriate writ, order or direction, directing respondents 1 to 3 to restore Konthuruthy River in its entirety to the width of 48 metres as admitted in Exhibit-P13 statement filed by the 3rd respondent in W.P.(C) No.13927/2012 dated 4.3.2013 in a time bound manner.
ii) Issue a writ of mandamus or other appropriate writ, order or direction, directing respondents 1 to 3 to evict all encroachments carried out over the Konthuruthy River.
iii) Issue a writ in the nature of a declaration, declaring that no part of the Konthuruthy River or its puramboke can be assigned to any person.W.P.(C).No.1812/2016 4
iv) Issue a writ in the nature of a declaration, declaring that if any part of the Konthuruthy river or its puramboke is already assigned, then such assignment is void abinitio.
v) Issue a writ of mandamus or other appropriate writ, order or direction directing respondents 1 to 3 to demolish the road that has been constructed over the Konthuruthy river in violation of the statutory norms and reconstruct the same after restoring the river."
2. Short facts leading to the filing of the writ petition are that, petitioner herein is a public spirited individual, who always stood up for the cause of public. He is a resident of Thevara-Konthuruthy region, within the limits of Corporation of Kochi. He had taken up the cause of Konthuruthy river before several authorities and filed W.P.(C) No.13927 of 2012 before this Court, which was later transferred to the National Green Tribunal, Chennai. Thereafter, the said writ petition was withdrawn with liberty to initiate fresh proceedings.
3. Konthuruthy river is situated in Sy. No.1006 of Elamkulam village, Kanayannur taluk, Ernakulam district. The river connects Thevara canal to the backwaters of Nettoor and was originally used as a major navigational channel under Section 2(26) of the Cochin Public Canals and Back Water Navigation Rules, 1114. According to the petitioner, due to the widespread encroachments made by the members of the 5 th respondent, Konthuruthy W.P.(C).No.1812/2016 5 river is facing a slow death. As per survey records, the river originally had a width of 48 metres, but now has been reduced to a width of 3 metres. The starting point of the said encroachments commenced with the destruction of an over bridge across the river about 26 years ago. The bridge was destroyed and a road was constructed over the river without leaving access for flow of water through the river.
4. It is trite law that encroachment over public property by whomsoever cannot be regularised and the same ought to be removed at the earliest. In this regard, he had submitted Exhibits-P1 to P5 representations before the above specified authorities requesting to take action for removal of encroachments from the river. Finally, he received Exhibit-P8 letter dated 18.11.2011 issued on behalf of the Tahsildar, Ernakulam, respondent No.4, stating that the Village Officer concerned was directed to prepare a sketch regarding the alleged encroachments. Thereafter, he received another letter dated 4.1.2012 (Exhibit-P9) stating that Taluk Surveyor, Ernakulam has been directed to specifically identify the encroachments in Konthuruthy river. Petitioner came to understand that pursuant to Exhibits-P8 and P9, the Taluk Surveyor has conducted a survey and reported that there were widespread encroachments on the river as complained by him, and it was informed by Exhibit-P10 letter W.P.(C).No.1812/2016 6 dated 23.01.2012 that necessary action would be taken to evict encroachers. Pursuant to Exhibit-P10, the 2 nd respondent through Exhibit- P11 letter dated 8.2.2012 informed the petitioner that they had received a report from the 5th respondent's office stating that there has been encroachments in the river and necessary steps have been taken to remove the same. In spite of the assurance given, no action was taken by respondents 1 to 4 to evict the encroachers under the Kerala Land Conservancy Act, 1957. Hence, he filed W.P.(C) No.13927 of 2012 seeking appropriate action to restore the Konthuruthy river and to take adequate steps to evict the encroachers.
5. When the above said writ petition came up for admission, this Court by Exhibit-P12 order dated 15.07.2012 directed the 3 rd respondent, District Collector, Ernakulam, to submit a report as to why the river was allowed to be encroached and virtually blocked at several areas, within a period of three weeks after studying the encroachment, and also as to whether the encroachments can be removed and that the river can be restored to its original shape and size. In furtherance of Exhibit-P12 order, the 3rd respondent has filed a counter affidavit admitting the averments in the writ petition and also the fact that various persons had encroached the river and are residing therein. It is further stated that Irrigation W.P.(C).No.1812/2016 7 Department is liable to protect the river by surveying the land and erecting boundary stones at every 15 metres. The report further states that the Additional Tahsildar had started survey process and boundary of both sides of the river to an extent of 2 kms. stood demarcated.
6. Meanwhile, the National Green Tribunal of the Southern Zone was constituted and this Court vide order dated 20.08.2013 transferred W.P.(C) No.13927 of 2012 to the National Green Tribunal assuming that the matter relates to pollution. When the matter came up for hearing before the National Green Tribunal on 11.05.2015, taking note of the widespread encroachments in Konthuruthy river and that the river is facing imminent danger, the Tribunal by Exhibit-P15 order directed the Tahsildar, Ernakulam, respondent No.4, to see that no further encroachments are made on the banks of the river, and the existing width of the river shall be maintained without further encroachments until further orders. The Tribunal further observed that since the issue involved did not relate to pollution, but that of encroachment, it could be tried only under Article 226 of the Constitution of India. Since, the Tribunal had no power to re-transfer the matter back to this Court petitioner filed a memo to withdraw the case with liberty to file a fresh writ petition. The Tribunal vide Exhibit-P16 permitted the petitioner to withdraw Application W.P.(C).No.1812/2016 8 No.292/2013 with liberty to approach the appropriate forum. The Tribunal further in its order observed that considering the relief claimed in the application, which is primarily that of eviction of encroachments on Konthuruthy river, the same does not fall within its jurisdiction and, therefore, the application itself was not maintainable before the Tribunal. Petitioner has contended that in spite of Exhibits-P12 and P15 orders directing the 2nd respondent to ensure that no further encroachments of Konthuruthy river are carried out, rampant encroachments are taking place, and the respondents are remaining as mute spectators.
7. Being aggrieved, he has filed the instant writ petition basically contending that, the inaction on the part of respondents 1 to 4 in taking adequate measures to evict illegal encroachments on Konthuruthy river is per se illegal, arbitrary, unwarranted and violative of Article 14 of the Constitution of India, that as per the Directive Principles of State Policy in Article 39 of the Constitution of India, it is the obligation of the State to ensure that the resources of the Community are distributed so as to sub- serve the common good. A river is a natural resource of the Community. The common good is best sub-served when the river, continues to flow in the natural state and successive generations enjoy the river in its entire splendor. The inaction on the part of the State Government to protect the W.P.(C).No.1812/2016 9 Konthuruthy river and restore it to its original width and condition is an intrusion to the Constitutional safeguards and protection for the common good. It is obligatory on the part of the State to protect and improve environment as per Article 48A of the Constitution and is essential that the said Directive Principles of State Policy is given effect to and prevent the Konthuruthy river from being destroyed. If the encroachers are permitted to reside, in violation of the Constitutional mandate, the State would be destroying the environment, which is liable to be protected for all generations to enjoy, that even though Article 51A of the Constitution is intended as a fundamental duty upon every citizen, the same applies in all its vigor to the State also. As per Article 51A(g), every citizen is bound to protect and improve the natural environment, including lakes and rivers. When the State attempts to assign river or river puramboke to persons, who have encroached upon those areas, State is acting against its own interest and violates the Constitutional provisions. Thus, the action of the State Government in delaying to evict the encroachers on Konthuruthy river is totally arbitrary, unreasonable and violative of Article l4 of the Constitution of India.
8. Petitioner has further contended that the fact that illegal encroachments are existing in Konthuruthy river is admitted by the W.P.(C).No.1812/2016 10 respondents, as is evident from Exhibits-P10, P11 and P13. Even after admitting the said fact, respondents 1 to 4 are not taking any action to evict the encroachers as contemplated under law. According to the petitioner, such an action is per se arbitrary and is done with vested interests, in order to protect the members of 5 th respondent. Political will is absent to evict the encroachers, since the trespassers are regarded as a huge vote bank for all political parties. As stated by the 3 rd respondent in Exhibit-P13, several persons have illegally encroached Konthuruthy river and reduced its width by 3 metres from its original width of 48 metres. Petitioner has further contended that respondents 1 to 3 are bound to take action under law to evict the illegal encroachers of Konthuruthy river and to store its width to 48 metres.
9. It is the case of the petitioner that destruction of Konthuruthy river has commenced with the construction of a road across it during the mid 1980's. Resultantly, free flow of water through the river is curtailed thereby making the river a stagnant water body. As a result of the same, people have started to dump waste in the river and soon the river has become a dumping ground. Subsequently, encroachments commenced and as a result of widespread encroachments on Konthuruthy river, the width of the river, which was initially 48 metres, has now been reduced to W.P.(C).No.1812/2016 11 2 or 3 metres at certain locations. The slow death of Konthuruthy river is caused by the lethargic and languid attitude of the respondents in not taking appropriate measures to evict the encroachers from the property of the Government. The preliminary step that ought to have been taken in order to save the river is to remove the road that has been constructed across the river. Unless and until the same has been done by the authorities, free flow of water through the river till Thevara Canal will not be possible and the encroachments cannot be removed.
10. It is further contended that the respondents have a bounden duty under law to take adequate measures to remove the encroachments over Government lands. The Kerala Land Conservancy Act, 1957 provides for adequate mechanism to evict illegal occupants of rivers and Government lands. Explanation (iv) to Section 8 of the Kerala Land Conservancy Act clearly states that the land belonging to Municipal Corporation shall be deemed to be the property of the Government within the meaning of the section. Even though Konthuruthy river vests with the 2nd respondent, provisions of the Kerala Land Conservancy Act are applicable and proceedings can be initiated under the Land Conservancy Act, to remove the illegal encroachments carried out by the members of the 5th respondent. Further, Section 11 of the Act provides for the mode of W.P.(C).No.1812/2016 12 eviction of those, who are found to be in unauthorized possession of Government property. As is evident from Exhibit-P13, respondents 1 to 4 have categorically admitted the fact that there are widespread encroachments on Konthuruthy river. This being an admitted fact and the same is within the knowledge of respondents from the year 2007 onwards, inaction on their part in taking appropriate action as contemplated under the Kerala Land Conservancy Act, 1957 is per se arbitrary, defiance of rule of law, and an abdication of the duty vested on them.
11. Most importantly, it is contended that State is taking steps to assign the river and its puramboke to the members of the 5 th respondent, which is arbitrary and unconstitutional. It is declared by this Court in O.P No.17233/1996, that no part of river puramboke can ever be assigned to any person. Thus, if there is any step initiated to assign the river or its puramboke to any person or if already assigned, the same is void ab initio. Rivers, air forest and other water bodies are natural resources, over which the State has a bounden duty as the custodian to protect. Under the doctrine of public trust, a duty is cast on the State to act as trustees of these natural resources. The Public Trust doctrine primarily rests on the principle that natural resources like, river, water bodies, forests etc., have W.P.(C).No.1812/2016 13 such a great importance to the people as a whole that it would be unjustified to make them subject to private ownership. These resources are gifts of the nature, which every generation has a right to enjoy, including future generations. A duty is cast on the State to protect its resources for enjoyment of general public rather than to permit their use for private ownership. The doctrine casts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest at large. Action of respondents 1 to 3 in keeping a blind eye to the widespread encroachments of Konthuruthy river and subsequent action to assign such land to people, including the 7 th respondent, is illegal and should be prevented. The doctrine of Public trust mandates effective and affirmative state action for effective management of natural resources and empowers the citizens to question ineffective management thereof.
12. During the course of hearing, I.A. No.3 of 2019 has been filed by two persons to get themselves impleaded, stating that they are interested persons likely to be affected by any orders passed by this Court and they are residents of the buildings situated on the puramboke for the last several decades. According to them, the whole set of facts raised in the writ petition are distorted and not true, the attempt of the petitioner is W.P.(C).No.1812/2016 14 to evict legitimate settlements in the area with ulterior intent to be gratified, and that the petitioner is a proponent of some vested real estate interests. Therefore, the I.A. was allowed and the impleaded persons were also heard.
13. Kochi Corporation has filed a statement dated 19.12.2019, contending that Corporation Council in the meeting held on 13.12.19, have decided to prepare an action plan to restore the Konthuruthy river, and the decisions read thus:
"(i) Decided to prepare an action plan to submit before this Court and to include the following decisions in the action plan.
(ii) Decided to maintain the maximum width in the areas available and in the areas where the river is narrowed, it has been decided to restore it to 16 metres width to enable smooth flow of water and water transport.
(iii) Decided to prepare beneficiary list.
(iv) Decided to demolish the road lying across the river and to construct a new bridge for transport.
(v) Decided to call for a report from the Engineering Department of the Corporation for avoiding water logging.
(vi) Decided to rehabilitate the evictees in the remaining area after restoring the river.
(vii) Decided to request the State Government for providing fund for implementing the Project.
(viii) Decided to request the Hon'ble High Court 2 months' time to prepare the action plan and another 6 months' time to implement the same.
(ix) Decided to request the District Collector to include the Project in 'Break Through' Scheme.
(x) Decided to convene a meeting of MP, MLA, District Collector, Councilors and other officers."W.P.(C).No.1812/2016 15
14. Based on the above said decisions taken by the Council of the Corporation, two months' time is requested for preparing the action plan and another six months' time for implementing the same. Therefore, it is prayed that this Court may consider the above said facts while disposing the above writ petition.
15. The 2nd respondent as per the direction of this Court on 13.01.2020, has filed a counter counter affidavit, wherein it is stated that, on 15.01.2020, this Court passed an interim order directing the Secretary to appear before the Court and produce the entire files regarding the encroachments in Konthuruthy river. On 13.01.2020, this Court had directed the Corporation to file a counter affidavit explaining as to how the width of the river stated to be restored to 29 metres has now come down to 16 metres. In the "Mass Communication Programme" of the Hon'ble Chief Minister, petitioner had filed a complaint alleging encroachment on Konthuruthy river during the year 2011. The complaint was handed over to the Taluk Surveyor and the Surveyor, on 23.01.2012, has reported that the river puramboke has been encroached. On the basis of the directions issued by this Court in W.P.(C) No. 13972 of 2012 to evict the encroachers, on 07.08.2012, a meeting was held in the presence of the District Collector, in which the Corporation was directed to submit a report as to W.P.(C).No.1812/2016 16 whether the evictees can be rehabilitated. On the basis of this, the Town Planning Committee on 16-10-2012 decided that, as the Corporation is not having the land to rehabilitate the evictees, if the District Administration provides the land, then the Corporation will allot funds to construct houses from the Poverty Alleviation Programme as per the rules. The Corporation Council approved this decision on 14.03.2013. Joint survey of the Revenue Department, Irrigation Department and Corporation was completed on 17- 12-2012. The boundaries have been demarcated by laying survey stones.
16. Thereafter, the case was transferred to the National Green Tribunal, Chennai and before the Tribunal, Corporation had reported on 22.05.2015 that rehabilitation would be possible only with the help of State Government. A meeting was convened on 03.11.2016, in the presence of the Hon'ble Revenue Minister and the revenue department had submitted that the river puramboke cannot be assigned. The meeting was concluded observing that further discussions are necessary. The Hon'ble Revenue Minister informed that a high level committee, including revenue department, Local Self Government Department and other officials will be formed and suitable decisions will be taken after the meeting of the committee.
17. On 13.11.2019, Corporation Council has decided to place before W.P.(C).No.1812/2016 17 this Court that it is prepared to restore the river to a width of 16 metres and to rehabilitate the evictees. It was also decided to request the District Collector to include this project under the 'break through' scheme. On 06.01.2020, request has been officially made to the District Collector to include the restoration of Konthuruthy river in 'break through' scheme. However, the District Collector has given a report stating that the river can be restored to 29 metres. The Corporation has filed a statement incorporating the decisions taken by its Council and stated to restore the river to a width of 16 metres. Dissatisfied with the reduction of the width to which the river has to be restored, this Court passed an interim order dated 15.01.2020 directing the Secretary of the Corporation to appear on 27.01.2020 with the entire records. The Kerala State Inland Navigation Corporation (KSINC) with the help of NATPAC has prepared a detailed project report for integrated urban regeneration and water transport system in Cochin. On the basis of this, the minimum width required for Inland Navigation and Water Transport is fixed at 16.5 metres. The following canals are going to be developed by Kochi Metro Rail Limited (KMRL). The Edapally Canal (11.236 km), Thevara Perandoor canal (11.5 km), Chilavannoor canal (9.88 km), Thevara canal (14.05 km) and Market canal (0.664 km). Based on this, Corporation has decided to request this W.P.(C).No.1812/2016 18 Court to restore the river to 16 metres. Moreover, the number of families to be evicted will be less, if the width is fixed to 16 metres.
18. In the light of the order passed by this Court on 15.01.2020, a survey was conducted by the Corporation on 18.01.2020. As per the District Collector's report, if the river is restored to 29 metres' width, almost 94 houses from both sides of the river have to be demolished, of which, 88 houses have UA number and 6 houses without UA number. The exact number of houses to be demolished can be ascertained only after the revenue department puts the boundary stones after demarcating the width of the river as 29 metres. If the width is fixed at 16 metres, which is the minimum width required for water transport as requested by the Corporation, then 34 houses have to be demolished, of which 28 houses have UA number and 6 houses without UA number. For the rehabilitation of evictees, suitable land is not available with the Corporation. Land for rehabilitation can be secured/acquired only with the help of State Government. These are the basic material facts available for consideration of the rival contentions raised.
19. Heard learned counsel for the parties and perused the material available on record.
W.P.(C).No.1812/2016 19
20. From the facts stated above, it clear that the encroachment made by various persons in Konthuruthy river is an admitted fact. Going through the records of the District Collector, Ernakulam, it is evident that the river originally had a width of 48 metres and at present, due to the encroachments, it has reduced to 3 metres. It is also an admitted fact that the river was a navigable one and was beneficial to the people for undertaking various activities using the water body. The situation having been found to be very grievous, petitioner has submitted Exhibit-P2(a) representation dated 31.05.2007 to the then Revenue Minister explaining the nature of encroachments and the difficulties faced by the people residing in that area. Likewise, he has submitted Exhibit-P3(a) representation dated 21.05.2007 before the Secretary, Kochi Corporation. However, no action was initiated. Thereupon, Exhibit-P4(a) representation dated 08.05.2007 has been submitted before the District Collector, Ernakulam and on 10.11.2010, Exhibit-P5(a) representation has been submitted before the Mayor, Kochi Corporation.
21. Even though the petitioner has highlighted various difficulties faced by the people and the unhygienic situation prevailing in the area in question, due to the encroachments, dumping of waste and construction of bund across the river, no action was initiated by any of the authorities. W.P.(C).No.1812/2016 20 While so, consequent to the representations made by the petitioner before the then Revenue Ministers, and the Hon'ble Chief Minister, in the people contact programme, some directions have been given to the Tahsildar of Kanayannur Taluk Office, pursuant to which, action was initiated to ascertain the extent of encroachments of Konthuruthy river, as evident from Exhibit-P8 letter dated 18.11.2011 issued by the Tahsildar, Kanayannur Taluk Office to the petitioner. The petitioner was also informed that a letter has been issued by the Tahsildar, Kanayannur Taluk Office to the Secretary of Kochi Corporation dated 23.01.2012 as evident from Exhibit-P10(a), wherein it is stated that Konthuruthy river is lying in Survey No.1006 of Elamkulam Village and there is encroachment in several areas of the river, and requested to remove the encroachment. Anyhow, no action seemed to have been initiated thereafter.
22. Pursuant to the above, petitioner has filed W.P.(C) No.13927 of 2012 before this Court, wherein various interim orders were passed and consequent to which, the District Collector has filed a detailed statement before this Court admitting encroachments and construction of various buildings in the encroached area. A final report dated 15.06.2020 is also submitted by the District Collector pursuant to the interim order passed by this Court in the said writ petition, wherein it is stated that pursuant to the W.P.(C).No.1812/2016 21 directions issued, a meeting of all the concerned department officials at the district level was convened by the District Collector and decisions were taken to find out the extent of encroachments by demarcating the boundaries of the river, deploying Taluk Surveyors of Kanayannur Taluk. It is also stated that the total length of the river to be surveyed is about 5 kms. By 30.10.2012, survey of 2 kms were over and now the survey work of the remaining 3 kms has also been completed. Thereafter, boundary stones have been planted and copy of the sketch prepared is also enclosed with the report. As per the report of Village Officer, Elamkulam, 167 persons have altogether encroached and occupied 374165 acres of land, and that most of them have been given the record of possession by the revenue authorities.
23. It was also stated in Exhibit-P14 final report that since the river puramboke is vested with the local body concerned, Kochi Corporation was directed to take up eviction proceedings. In the action taken report of the Secretary, Kochi Corporation dated 8.1.2013, it has been stated that the issue was resolved in the meeting of the town planning committee of the Corporation held on 16.10.2012 and it has been decided that if the District Administration provides adequate land, the encroachers would be sanctioned fund for house construction as a part of poverty alleviation W.P.(C).No.1812/2016 22 schemes which are being implemented by them subject to the terms and conditions thereof. The action taken report of the Secretary, Kochi Corporation dated 8.1.2013 is enclosed along with the report of the District Collector. However, it is stated by the District Collector that no land is separately available with the district administration to set apart for that purpose. To restore the Konthuruthy river to its minimum width of 29 metres, it is stated that the encroachment within the area of 29 metres has to be evicted. However, since the Corporation has already stated their inability to evict the encroachers, restoring that much width is found to be a matter, to be resolved at Government level.
24. Later, W.P.(C) No.13927 of 2012 was transferred to the National Green Tribunal, Chennai and as discussed above, the writ petition was withdrawn, having found to be not maintainable. It was thereafter, petitioner has again submitted representations before the District Collector, State Government as well as the Corporation authorities. However, no action was initiated. It was under such compelled circumstances, instant writ petition has been filed by the petitioner.
25. As per the directions of this Court, files were produced by the District Collector and from the available records, it can be deduced that at Government level, various meetings were held in order to resolve the issue W.P.(C).No.1812/2016 23 of rehabilitating the encroachers and then to restore the width of Konthuruthy river. It is also evident from the records that some of the buildings were constructed several decades back. However, the District Collector has reported to the Government that there is no other way except to restore the width of Konthuruthy river after removing the encroachments, and further that the properties in which the buildings are constructed, cannot be assigned, since there is no provision under the Land Assignment Act, 1960. Report dated 01.11.2016 provided by the District Collector to the Principal Secretary, Revenue (A) Department, which is relevant to the context, reads thus:
""L1-84081/2016 Collectorate, Ernakulam
Date : 01.11.2016
From
The District Collector,
Ernakulam.
To
The Principal Secretary,
Revenue (A) Department,
Government Secretariat,
Thiruvananthapuram.
Sir,
Sub: Land Assignment-River poramboke land comprised in Survey No.1006 of Elamkulam village - Reg:
Ref:
1) Government Letter No.40252/A3/2016/Rev. dated 21.10.2016 W.P.(C).No.1812/2016 24
2) Government Letter No.3830/A3/2013/Rev. dated 30.10.2015
3) Report No.L1-3502/2016 dated 26-10-2016 & 31-10-2016 from Tahsildar, Kanayannur.
Your kind attention is invited to the References cited. It has been intimated vide Ref(1) that a meeting was scheduled to be held at 12.00 hrs on 03.11.2016 chaired by the Hon'ble Minister for Revenue, at the Assembly Complex to discuss the matter of pattayam for the residents residing at Manava Nagar, Konthuruthy, Ernakulam and that the District Collector has to take part in the meeting with details regarding the same. Tahsildar of Kanayannur, has conducted site inspection and submitted report in the matter. The details known as per the report are furnished below.
Tahsildar of Kanayannur has reported that the land is a river poramboke land comprised in Elamkulam village Survey No. 1006, that 42 families are residing in a river poramboke land named Manava Nagar having an extent of about 1 3/4 acres on east side of the river, that encroachments have taken place on the land so that river conservation is impossible that all the encroachments are having more than 35 years antiquity, all the aforesaid people are granted possession certificates, all the aforementioned people are given Ration Card, Identity Card and electricity - water connection, that depth and flow are seen depleted as a result of encroachment over the river and that the Corporation of Kochi couldn't take any action for conservation of river, for last 35 years.
Tahsildar of Kanayannur has reported further that the said river had around 15 metres width and currently it has W.P.(C).No.1812/2016 25 been reduced to 5 metres at Manava Nagar colony area, the Corporation of Kochi has built stone wall on the river shore till the hall portion, but it is evident in the site inspection that, since houses have been constructed encroaching river, exceeding the stone wall on the south of the colony, the river has been transformed to a brook reducing its width and depth which has been drawn to the attention of the Town Planner, Corporation of Kochi, in person by Tahsildar, that even though a letter was served on the Corporation Secretary to intimate the opinion of the Corporation regarding grant of Pattayam through Corporation, ensuring conservation of river and enabling the service roads on the sides of river for traffic, no reply was furnished yet, and that the river itself would cease to exist in future if pattayam is granted to those who reside on river poramboke.
The case No. WP(C)-13927/12 filed by Sri. K.J. Tomy regarding reinstatement of the Konthuruthy river is pending before the National Green Tribunal, Chennai and an additional reply to the same has been furnished as in the File No. L-45631/2012 of this office. In the above circumstances, it is found that the steps to grant Pattayam to 42 families residing in river poramboke comprised in Elamkulam village Survey No.1006, Kanayannur taluk cannot be initiated. Instead, it is viewed that the Corporation of Kochi may be directed, at Government level, to initiate steps to rehabilitate the entire 42 families.
Yours faithfully, (Sd/-) District Collector By Order. Deputy Collector (L.R.)"
W.P.(C).No.1812/2016 26
26. Perusal of the said letter makes it clear that the District Collector has suggested steps to be taken at the Government level to rehabilitate the entire 42 families residing in the river puramboke, in order to restore the width of the river. It is also evident that on 3.11.2016, the Hon'ble Minister for Revenue has conducted a meeting in the Assembly Complex to discuss the matter of granting pattayam for the residents, who are admittedly, encroachers of Konthuruthy river.
27. It is also evident from the records that the MLA of Ernakulam Constituency has requested for a viable discussion on the part of the Government in the matter of granting pattayams to the residents, who have been residing for about 45 years on the eastern side of the Konthuruthy river in Elamkulam Village, Kanayannur Taluk. The District Collector, Ernakulam has reported that the aforementioned land is a river puramboke having an extent of 1 3/4 acres on its eastern side, comprised in Survey No.1006 of Elamkulam Village, Kanayannur Taluk and the encroachment is 35 years old. Therefore, the conservation is impossible.
Corporation of Kochi has also participated in the said meeting and conveyed that if land is made available, construction cost of the residential buildings for rehabilitating the encroachers can be provided by the Corporation. The District Collector in the meeting expressed that there is W.P.(C).No.1812/2016 27 every likelihood of flood in the near future owing to current encroachment being severe in nature and the width as well as depth of the river has been reduced considerably. The District Collector, therefore, has reported that pattayam cannot be granted to the aforementioned 42 families as per the Land Assignment Rules, 1964 and requested that the Corporation authorities be directed to take adequate steps to rehabilitate the entire 42 families. However, without taking any material decision, the meeting was adjourned basically arriving at the conclusion that no pattayam can be granted to the encroachers since the same being a river puramboke.
Even though various other meetings were held, nothing materialised.
28. From the note file produced by the Government also, we find that several meetings were held to resolve the issue. However, no actions were initiated, either to remove the encroachments or to restore the width of the river. We have gone through the records produced by the Government as well as Corporation of Kochi. On an evaluation, we find that there is no dispute with respect to the encroachments made. It is also an admitted fact that various buildings were constructed and certain revenue records were submitted to the Corporation by the revenue department. However, the buildings constructed are not given building numbers by the Corporation of Kochi obviously for the reason that the W.P.(C).No.1812/2016 28 constructions are not legal. Anyhow, unauthorised numbers are provided to 89 buildings and six buildings are not provided with any number.
Learned counsel for the petitioner submitted that as per the provisions of Kerala Irrigation and Water Conservation Act, 2003, Government have the duty to protect the river and water courses. Sections 3 and 5 of the Act, 2003 which are relevant to the context, read thus:
"3. Water courses and water in water courses to be Government property.-- Notwithstanding anything to the contrary contained in any other law for the time being in force, or in any custom or usage or in any contract or other instrument but subject to the provisions of section 218 of the Kerala Panchayat Raj Act, 1994 (13 of 1994) and section 208 of the Kerala Municipality Act, 1994 (20 of 1994), all water courses and all water in such water courses in the State shall be the property of the Government, and the Government shall be entitled to conserve and regulate the use of such watercourses and the water in all those water courses for the purposes of irrigation and the generation of Electricity and for matters connected therewith or for both."
5. Regulation on construction of reservoirs, anicut etc.- (1) No person or agency or local authority shall construct any reservoir or anicut or weir or any other permanent structure in or across any water course for the purpose of diverting water therefrom except with the previous sanction of the Government or such authority as W.P.(C).No.1812/2016 29 may be authorised by the Government in that behalf and subject to such terms and conditions as the Government or such authority may impose.
(2) Where any structure is constructed in violation of the provisions of subsection (1), the Government or the authority authorised by the Government under that subsection shall, without prejudice to any other action that may be taken for such violation, have power to remove such structure or cause it to be removed and to recover the cost of such removal from the person or persons responsible for such construction."
29. Section 3 makes it clear that the power conferred under Act, 2003 is subject to the powers conferred under Section 208A of the Kerala Municipality Act, 1994. Section 208A of the Kerala Municipality Act, 1994 deals with transfer of water courses, springs, reservoirs etc., to Municipalities, wherein it is stated that notwithstanding anything contained in the Kerala Land Conservancy Act, 1957 (8 of 1958) or in any other law for the time being in force, all public watercourses, including those which the public have been using so as to give them easement rights over them, (other than rivers flowing through the municipal areas and other areas as may be specified by Government, by notification in the Gazette) whether existing at the commencement of this Act or were made; set up or constructed, thereafter whether made or constructed at the cost of the W.P.(C).No.1812/2016 30 Municipality or not, along with their river beds, banks, springs, channels for irrigation and drainage, canals, lakes, backwaters, water courses all water whether standing, or flowing streams, reservoirs, ponds, water beds, fountains, wells, 'Kappus' channels stand pipes, and other water reservoirs and any land appertaining there to other than private property shall stand transferred to and shall absolutely vest in the Municipality. Therefore, it is clear that consequent to the enactment of the Kerala Municipality Act, 1994, Konthuruthy river stood vested with the Municipality and, therefore, maintenance of the river is left with the Municipality absolutely. We have gone through the provisions of the Kerala Land Conservancy Act, 1957 and the rules framed thereunder, and the Assignment of Land within Municipal and Corporation Areas Rules, 1995. However, we could not find any provisions whereby the Government or the Municipality conferred with any power to assign a river puramboke. In that view of the matter and since it is an admitted fact that substantial encroachments are made in Konthuruthy river, there is an obligation on the part of the Corporation of Kochi to remove the encroachments and to restore the width of the river so as to ensure free flow of water through the same.
W.P.(C).No.1812/2016 31
30. During monsoon, the flow of water through the river would be maximum and if any obstruction is created to the natural flow of water, the flow gets deflected and there is every likelihood of water gushing to the nearby properties 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. It is also a fact that river may become dry due to various reasons, either partially or fully. It is also a ground reality that a river flows in its full capacity during monsoon when rains are heavy, especially in a State like Kerala. But, when the rain recedes, water level may come down, the river gets dried up and the flow of water may be limited to a small extent leaving both sides of the river dry, and there may be formation of island, deltas, etc. During summer season, the rivers may become pasture fields for animals, since they may convert themselves as W.P.(C).No.1812/2016 32 grass lands. But, that does not permit human intervention by putting up any permanent structures and farming activities. There are also chances that if the monsoon during a particular year is very weak, a river bed may lie as such in a dry state. However, that will also not permit any human intervention in its lie and nature, which thus means that no citizen has the right to tinker with the river bed merely because it is remaining dry for several months or years. There could be a heavy monsoon like the one happened in Kerala during the years 2018 and 2019, and also due to the encroachment of rivers, lakes and water channels, there was heavy flooding, especially within the limits of Kochi Corporation and many of the housing colonies were water logged for several days together and caused severe economic, financial, and other adverse impacts, and environmental imbalances interfering with normal human life. It is also a fact that the Government as well as the Local Self Government Institutions are trustees of the properties and the trust so reposed by the people shall be discharged by the State as well as other authorities with utmost care, caution, duty, obligation and circumspection. This question was considered by the Hon'ble Supreme Court in Susetha v. State of Tamil Nadu and Others [(2006) 6 SCC 543], wherein at paragraphs 14, 19 and 21, held thus:
W.P.(C).No.1812/2016 33
"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. [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)]
19. The matter has also been considered in some detail by this Court in Intellectuals Forum [2006 (3) SCC 549] wherein again while dealing with natural resources, it was opined:
"This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust. Formulated from a negatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the State holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny on any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinise such actions of the Government, the courts must make a distinction between the Government's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources."
(emphasis supplied) W.P.(C).No.1812/2016 34
21. In Bombay Dyeing and Manufacturing Co. Ltd. (3) v. Bombay Environmental Action Group [(2006) (3) SCC 434] referring to a large number of decisions, it was stated that whereas the need to protect the environment is a priority, it is also necessary to promote development stating:
"The harmonisation of the two needs has led to the concept of sustainable development, so much so that it has become the most significant and focal point of environmental legislation and judicial decisions relating to the same. Sustainable development, simply put, is a process in which development can be sustained over generations. Brundtland Report defines 'sustainable development' as development that meets the needs of the present generations without compromising the ability of the future generations to meet their own needs. Making the concept of sustainable development operational for public policies raises important challenges that involve complex synergies and trade offs."
31. So also, in M.C.Mehta v. Union of India [(1997) 3 SCC 715], the Hon'ble Apex Court had an occasion to consider a similar situation and held that State shall strive hard to avoid environmental degradation where there is a threat of irreparable damage. Precautionary principle was discussed in the said judgment taking into account Articles 21, 47, 48A and 51A(g) of the Constitution. In Intellectuals Forum, Tirupathi v. State of A.P. And Ors. [(2006) 3 SCC 549], the Hon'ble Apex Court had considered the importance of conservation of water resources, the concept W.P.(C).No.1812/2016 35 of sustainable development and the duty of the Government and other authorities to protect natural resources. Paragraphs 67 and 68 relevant to this context, read thus:
"67. The responsibility of the State to protect the environment is now a well accepted notion in all countries. It is this notion that, in international law, gave rise to the principle of "State responsibility" for pollution emanating within one's own territories [Corfu Channel case (ICJ Rep 1949 (4))]. This responsibility is clearly enunciated in the United Nations Conference on the Human Environment, Stockholm 1972 (Stockholm Convention), to which India was a party. The relevant clause of this declaration in the present context is para 2, which states:
"The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate."
Thus, there is no doubt about the fact that there is a responsibility bestowed upon the Government to protect and preserve the tanks, which are an important part of the environment of the area.
68. The respondents, however, have taken the plea that the actions taken by the Government were in pursuance of urgent needs of development. The debate between the developmental and economic needs and that of the environment is an enduring one, since if the environment is destroyed for any purpose without a compelling developmental cause, it will most probably run foul of W.P.(C).No.1812/2016 36 the executive and judicial safeguards. However, this Court has often faced situations where the needs of environmental protection have been pitched against the demands of economic development. In response to this difficulty, policy makers and judicial bodies across the world have produced the concept of "sustainable development". This concept, as defined in the 1987 report of the World Commission on Environment and Development (Brundtland Report) defines it as "Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs." Returning to the Stockholm Convention, a support of such a notion can be found in para 13, which states:
"In order to achieve a more rational management of resources and thus to improve the environment, States should adopt an integrated and coordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve environment for the benefit of their population."
32. The Hon'ble Apex Court in Intellectuals Forum, Tirupathi (cited supra) has also considered the Doctrine of Public trust with reference to the judgment of the Hon'ble Supreme Court of United States in Illinois Central Railroad Co. v. People of the State of Illinois [146 US 387 - 36 LEd 1018 (1892)], wherein it is observed that bed or soil of navigable waters is held by the people of the State in their character as sovereign in trust for public uses for which they are adapted and the State holds title to the bed of navigable waters upon a public trust, and no alienation or W.P.(C).No.1812/2016 37 disposition of such property by the State which does not recognise and is not in execution of this trust, is permissible. That apart, the Hon'ble Apex Court has considered the principles of Inter-Generational Equity and sustainable development in the above said decision and held that no citizen has the right to interfere with the environment so as to cause prejudice to the future generations. Paragraphs 82 to 84 relevant to the context, read thus:
"82. Art.48A of the Constitution of India mandates that the State shall endeavour to protect and improve the environment to safeguard the forests and wildlife of the country. Art.51A of the Constitution of India, enjoins that it shall be the duty of every citizen of India, inter alia, to protect and improve national environment including forests, lakes, rivers, wild life and to have compassion for living creatures. These two Articles are not only fundamental in the governance of the country but also it shall be the duty of the State to apply these principles in making laws and further these two articles are to be kept in mind in understanding the scope and purport of the fundamental rights guaranteed by the Constitution including Articles 14, 19 and 21 of the Constitution of India and also the various laws enacted by the Parliament and the State Legislatures.
83. On the other hand, we cannot also shut our eyes that shelter is one of the basic human needs just next to food and clothing. Need for a national housing and habitat policy emerges from the growing requirements of shelter and related infrastructure. These requirements are growing in the context of W.P.(C).No.1812/2016 38 rapid pace of urbanization, increasing migration from rural to urban centres in search of livelihood, mismatch between demand and supply of sites and services at affordable cost and inability of most new and poorer urban settlers to access formal land markets in urban areas due to high costs and their own lower incomes, leading to a non-sustainable situation. This policy intends to promote sustainable development of habitat in the country, with a view to ensure equitable supply of land, shelter and services at affordable prices.
84. The world has reached a level of growth in the 21 st Century as never before envisaged. While the crisis of economic growth is still on, the key question which often arises and the Courts are asked to adjudicate upon is whether economic growth can supersede the concern for environmental protection and whether sustainable development which can be achieved only by way of protecting the environment and conserving the natural resources for the benefit of the humanity and future generations could be ignored in the garb of economic growth or compelling human necessity. The growth and development process are terms without any content, without an inkling as to the substance of their end results. This inevitably leaves us to the conception of growth and development which sustains from one generation to the next in order to secure "our common future". In pursuit of development, focus has to be on sustainability of development and policies towards that end have to be earnestly formulated and sincerely observed. As Prof. Weiss puts it, "conservation, however, always takes a back seat in times of economic stress."
It is now an accepted social principle that all human beings have a fundamental right to a healthy environment, commensurate W.P.(C).No.1812/2016 39 with their well being, coupled with a corresponding duty of ensuring that resources are conserved and preserved in such a way that present as well as the future generations are aware of them equally."
33. However, it is clear from the records that restoration of the river was being protracted obviously for the reason that about 96 houses are built encroaching into the river. But, in our considered view, that by itself cannot be a ground in the matter of protection of the river for the common good. The Hon'ble Apex Court had occasion to consider the issue in Virendra Gaur v. State of Haryana [(1995) 2 SCC 577] and insisted on the demolition of a structure which has been constructed on the lands reserved for common purposes. Likewise, in M. I. Builders Private Limited v. Radhey Shyam Sahu and Others [(1996) 6 SCC 464], the Hon'ble Apex Court directed dismantling of a park to its original condition, having found that the construction was unauthorised, which was a shopping complex, constructed at a cost of Rs.100 Crores.
34. In National Institute of Medical Science University, Rajasthan and Ors. v. State of Rajasthan and Ors. [(2018) 13 SCC 390], a similar question of constructions made encroaching into a dam area was considered by the Hon'ble Apex Court and ordered demolition of constructions carried out, having found that, due to the unlawful W.P.(C).No.1812/2016 40 constructions carried out, a lake has become dry, thus causing acute scarcity for drinker water.
35. In Sarvepalli Ramaiah (Dead) As Per Legal Representatives and Others v. District Collector, Chittoor District and Others reported in [(2019) 4 SCC 500], the Hon'ble Apex Court had occasion to consider the issue of protecting water bodies and, at paragraphs 44 & 45, held thus:
"44. The decision of the Collector was based on materials and thus not liable to be interfered with. The High Court very rightly did not interfere with the decision. It was not for the High Court, exercising its extraordinary power of judicial review, to re-analyse the evidence on record and adjudicate the disputed question of whether the Mahanth of the Mutt had at all granted Saswatha Patta to the predecessors in interest of the appellants, whether the takeed was duly executed by the Mahanth, whether the ryotwari pattas were genuine or otherwise valid or not. Nor was it for the High Court to adjudicate the disputed fact of whether the land in question was in fact a water body or the dried bed of a water body. Cultivation is often carried out on the dried bed of water bodies. That does not denude the land of its character as a water body.
45. The High Court rightly based its decision on the declaration of the entire survey area as water body and W.P.(C).No.1812/2016 41 held, in effect, that the plots in question had vested in the government free from all encumbrances under Section 2A of the 1956 Act. The respondents could not, therefore, be compelled to grant ryotwari pattas in respect of the said plots."
36. Taking into account all these aspects and keeping in mind the constitutional obligations of the State and its authorities, as discussed above, we are of the considered opinion that in order to avoid future calamities due to flooding and other ecological imbalances, within the limits of Kochi Corporation, necessary action will have to be taken to remove the encroachments, failing which, State and its authorities will be doing great injustice to the citizens residing within the Corporation limits.
37. It is an admitted fact that Corporation of Kochi has decided to utilise the funds from various sources for rehabilitating the people residing in the buildings put up on the river bed. However, Kochi Corporation has a case that it has no sufficient funds for acquiring properties for rehabilitating the encroachers. From the discussion made above, it is clear that the Corporation may not be able to set apart properties for rehabilitating the encroachers. In that view of the matter, we are of the opinion that necessary directions will have to be issued to the State as well as the Corporation.
W.P.(C).No.1812/2016 42
In the result, this writ petition is allowed with the following directions are issued:
A) Within three months from the date of receipt of a copy of this judgment, the Secretary, Revenue Department is directed to convene a meeting of the District Collector, the authorities of Kochi Corporation, and all other stakeholders, including the members of Legislative Assembly, and members of the Parliament, to find out a solution for providing land to the Kochi Corporation for rehabilitating the encroachers of Konthuruthy river.
B) No assignment shall be given to any one afresh or already encroached into the river puramboke.
C) No further construction shall be permitted by Kochi Corporation, on the river bed, as is discernible from the revenue records.
D) Under any circumstances, encroachments in the river puramboke shall be removed, within a period of one year from the date of receipt of a copy of this judgment, in order to make the river navigable, after rehabilitating the encroachers within the said period by the State Government and the Kochi Corporation.
E) After the removal of encroachments, embankment shall be done on both sides of the river by the appropriate statutory authority.W.P.(C).No.1812/2016 43
F) Necessary steps shall be taken to remove the bund by constructing a bridge over the river in order to ensure free flow of water.
G) Corporation of Kochi shall ensure that no wastes are being dumped into the river and take steps to remove the silt and waste on a war-footing. Corporation shall also ensure that no filthy or dirty water is drained out into the river by the residents of the locality.
H) No permanent building numbers shall be granted to the constructions carried out by the encroachers, without finalising the above directions.
I) No costs.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P. CHALY JUDGE krj W.P.(C).No.1812/2016 44 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 COPY OF THE IMAGE OF THE KONTHURUTHY REGION AS DEPICTED THROUGH 'GOOGLE MAPS'.
EXT.P1(A) : COPY OF THE SATELLITE IMAGE OF THE THEVARA KONTHURUTHY REGION FROM THE 'GOOGLE EARTH'.
EXHIBIT P2 TRUE COPY OF THE SATELLITE IMAGE OF THE THEVARA KONTHURUTHY REGION FROM THE 'GOOGLE EARTH'.
EXT.P2(A) : TRUE ENGLISH TRANSLATION OF EXT.P2.
EXHIBIT P3 COPY OF THE REPRESENTEATION DATED 31.5.2007 SUBMITTED BY THE
PETITONER TO THE REVENUE MINISTER.
EXT.P3(A) : TRUE ENGLISH TRANSLATION OF EXT.P3.
EXHIBIT P4 COPY OF THE REPRESENTATION DATED 8.5.2007 SUBMITTED BY THE
PETITONER BEFORE THE 3RD RESPONDENT.
EXT.P4(A) : TRUE ENGLISH TRANSLATION OF EXT.P4.
EXHIBIT P5 COPY OF THE REPRESENTATION DATED 10.11.2010 SUBMITTED BY THE
PETITIONER BEFORE THE MAYOR OF COCHIN.
EXT.P5(A) : TRUE ENGLISH TRANSLATION OF EXT.P5.
EXHIBIT P6 COPY OF THE REPORT DATED 16.3.2012 IN "RASHTRADEEPILA" DAILY.
EXT.P6(A) : TRUE ENGLISH TRANSLATION OF EXT.P6.
EXHIBIT P7 COPY OF THE REPORT DATED 18.5.2007 PUBLISHED IN MATHRUBHUMI.
EXT.P7(A) : TRUE ENGLISH TRANSLATION OF EXT.P7.
EXHIBIT P8 COPY OF THE LETTER DATED 18.11.2011 ISSUED ON BEHALF OF BY THE
4TH RESPONDENT TO THE PETITIONER.
EXT.P8(A) : TRUE ENGLISH TRANSLATION OF EXT.P8.
EXHIBIT P9 COPY OF THE LETTER DATED 04.01.2012 ISSUED BY THE 4TH RESPONDENT
TO THE PETITIONER.
EXT.P9(A) : TRUE ENGLISH TRANSLATION OF EXT.P9.
EXHIBIT P10 COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT DATED
23.01.2012.
W.P.(C).No.1812/2016 45
EXT.P10(A) : TRUE ENGLISH TRANSLATION OF EXT.P10.
EXHIBIT P11 COPY OF THE LETTER DATED 8.2.2012 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.
EXT.P11(A) : TRUE ENGLISH TRANSLATION OF EXT.P11.
EXHIBIT P12 COPY OF THE ORDER DATED 15.7.2012 IN W.P.(C) NO.13927/2012.
EXHIBIT P13 TRUE COPY OF THE STATEMENT ALONG WITH THE DOCUMENTS FILED ON BEHALF OF THE 3RD RESPONDENT DATED 4.3.2013 IN WP(C) NO.13927/2012.
EXHIBIT P14 TRUE COPY OF THE REPORT DATED 15.1.2013 NUMBERED AS L8.45631/12 FILED BY 3RD RESPONDENT IN WP(C) NO.13927/2012.
EXHIBIT P15 COPY OF THE ORDER DATED 11.5.2015 IN APPLICATION NO.292/2013 OF THE NATIONAL GREEN TRIBUNAL.
EXHIBIT P16 COPY OF THE ORDER DATED 24.9.2015 IN APPLICATION NO.292/2013 PASSED BY THE NATIONAL GREEN TRIBUNAL.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1(A): TRUE COPY OF THE REPORT FURNISHED BY THE DISTRICT COLLECTOR, ERNAKULAM.
//TRUE COPY// P.A. TO CJ