Kerala High Court
P.Sankara Pillai vs The Chief Secretary To The Government Of ... on 29 January, 2020
Equivalent citations: AIRONLINE 2020 KER 39
Author: Shaji P. Chaly
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
WEDNESDAY, THE 29TH DAY OF JANUARY 2020 / 9TH MAGHA, 1941
WP(C).No.7379 OF 2018(S)
PETITIONER:
P.SANKARA PILLAI
AGED 70 YEARS,S/O. LATE P.PARAMESWARAN
PILLAI,SANKARAYALAM HOUSE,
MUTHUPILAKKADU WEST,PORUVAZHY.P.O., KOLLAM DISTRICT,
PIN-690520.
BY ADV. SANKARA PILLAI (PARTY IN PERSON)
RESPONDENTS:
1 THE CHIEF SECRETARY TO THE GOVERNMENT OF KERALA
SECRETARIAT, THIRUVANANTHAPURAM,KERALA,
PIN- 695 001
2 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,LOCAL SELF
GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT,
GOVERNMENT OF KERALA,THIRUVANANTHAPURAM- 695 001
3 STATE OF KERALA
REPRESENTED BY SECRETARY TO WATER
RESOURCES,GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM- 695 001
4 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT PUBLIC WORKS
DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-
695 001
5 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT REVENUE
DEPARTMENT,GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-
695 001
6 THE DIRECTOR OF PANCHAYATH
GOVERNMENT OF KERALA,THIRUVANANTHAPURAM- 695 001
7 THE DIRECTOR GENERAL OF POLICE (ADMN)
WP(C).No.7379 OF 2018 2
VAZHUTHACAD, THIRUVANANTHAPURAM- 695 033
8 THE DISTRICT COLLECTOR
KOLLAM DISTRICT- 691 013
9 THE CHIEF ENGINEER
PROJECT II, KALLADA IRRIGATION
PROJECT(KIP),THIRUVANANTHAPURAM-695033
10 THE CHIEF ENGINEER
PUBLIC WORKS DEPARTMENT,THIRUVANANTHAPURAM- 695 033
11 THE CHIEF ENGINEER
NATIONAL HIGHWAYS,THIRUVANANTHAPURAM- 695 033
12 THE REVENUE DIVISIONAL OFFICER
CIVIL STATION, KOLLAM, PIN-691 013
13 THE EXECUTIVE ENGINEER
PUBLIC WORKS DEPARTMENT AND NATIONAL
HIGHWAYS,CHINNAKKADA, KOLLAM- 691 002
14 THE EXECUTIVE ENGINEER
KALLADA IRRIGATION PROJECT,CANAL DIVISION,NO.5,
ASRAMAM, KOLLAM- 691 002
15 THE SECRETARY
DISTRICT PANCHYATH,KOLLAM, THEVALLI.P.O.
KOLLAM-691009
16 THE SECRETARY
SASTHAMCOTTA GRAMA PANCHAYATH,P.O.
SASTHAMACOTTA,KOLLAM DISTRICT, PIN- 690 521
17 THE ASSSITANT EXECUTIVE ENGINEER
KALLADA IRRIGATION PROJECT, CIVIL STATION,
KARUNAGAPPALLY.P.O., KOLLAM DISTRICT, PIN- 690 518
18 THE ASSISTANT EXECUTIVE ENGINEER
PUBLIC WORKS DEPARTMENT AND NATIONAL
HIGHWAYS,KARUNAGAPPALLY,.P.O., CIVIL STATION,
KOLLAM DISTRICT- 690 518.
SENIOR GOVERNMENT PLEADER SRI.TEK CHAND FOR
RESPONDENTS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.7379 OF 2018 3
JUDGMENT
SHAJI P. CHALY,J This writ petition is filed by the petitioner as a public interest litigation. Petitioner appears in person. The grievance of the petitioner is that, the public of Bharanikavu locality in Kollam District complained to all concerned authorities to re-survey and remove the encroachment for constructing a canal road for the purpose of a way to the public, who are residing in that place, and also to survey the National Highways and Public Works Department roads for removing the encroachment on sides of road upto 230 meters from Bharanikavu junction. According to the petitioner, though representations were submitted before various statutory authorities and M.L.A as well as M.P., no action was initiated to remove the encroachments. It is submitted that the inaction on the part of the respondents interferes with the fundamental rights conferred on the residents of the locality guaranteed under Article 21 of the Constitution of India since proper civic amenities are not provided by the administration. Petitioner has also produced various paper publications in order to show that the grievance highlighted by the petitioner is a grievance of the general public and petitioner is espousing a public cause. It is also pointed out that, petitioner is prosecuting this writ petition without any financial aid from any persons residing in the locality and petitioner has no personal interest in the same.
WP(C).No.7379 OF 2018 4
2. That apart it is submitted that, various judgments of the Apex Court show that if there is any encroachment to the pubic roads, the local Panchayat as well as statutory authorities are duty bound to remove the same without fail. With the above background facts petitioner seeks direction to respondents 8 to 11 right from the District Collector, Kollam and various authorities of the National Highway as well as Public Works Department to re-survey the Chavara Distributory canal road from Bharanicavu to Manacadu about 600 meter right side and Bharanicavu junction and around 230 meters area of all the four sides of Public Works Department road and National Highways, and remove all illegal encroachment of canal road, main road, plantations, trees etc. etc. Petitioner has also sought for a direction for concreting of canal road about 600 meter length right side from Bharanicavu to Manacadu and 10 meter cut and cover near comfort station of Bharanicavu on the basis of a resolution taken by the local panchayat and also seeking direction to transfer fund to the tune of Rs.12 lakhs to Rs.15 lakhs from the share of District Panchayat members of this area, to the Assistant Executive Engineer, Kallada Irrigation Project (KIP), Karunagapally before 31.3.2018, on receipt of budget allotment from Government. Other consequential reliefs are also sought for.
3. Right from the filing of this writ petition, interim orders were being passed by this court directing the statutory authorities to take up WP(C).No.7379 OF 2018 5 appropriate action to carry out the survey in order to identify the encroachments, and reports were also sought for by this court from the District Collector. One such report filed along with a memo is dated 27 th March, 2018 wherein it is stated that the petitioner has submitted an application before the Tahsildar, Kannur on 23.12.2017 for re-fixation of the KIP canal boundary of Chavara Distributory canal from Bharanicavu junction to Manacadu Bridge in Sasthamcotta village, Kunnathur Taluk and also requested to evict the encroachers, if any, in the above said land. An application was also filed by the petitioner before the District Collector on 7.3.2018, which was forwarded to the Village Officer, Sasthamcotta for appropriate action. Accordingly the Taluk Surveyor inspected the site and reported that about 4 Kms of cannal comprised in Re-sy Nos.104/38, 105/13, 106/9 and 107/15 of Block No.13 in Sasthamcottah Village has to be re-fixed for the purpose of measurement. The surveyor also pointed out, most of the boundary stones in the area in question were lost and therefore, about 50 boundary stones were required to re-fix the boundary. It was also found that there is encroachment on the sides of the cannal and encroachers have used the land for cultivation including rubber plantation.
4. Based on the above report and since the ownership and management of the said cannal is under Kallada Irrigation Project (KIP), the Assistant Engineer, KIP, Sasthamcotta was intimated to provide WP(C).No.7379 OF 2018 6 necessary boundary stones for the re-fixation of the land and to make necessary arrangements for the survey. That apart it is pointed out, for re-fixation of the land necessary notice as specified in Kerala Survey and Boundaries Act was to be issued to the adjacent land owners within the area of 4 Kms, and that strength of the surveyors in Taluk office was not enough to complete the survey and hence a special survey team including three surveyors is required for conducting survey. Therefore, six months time was sought to complete the survey as directed by this court in its interim order. Later a statement is filed for and on behalf of the District Collector, Kollam dated 18.3.2019 explaining the circumstances under which the survey could not be carried out and sought further six months time to complete the survey. On going through the interim orders passed by this court, it is seen that, various statements were filed before the Court explaining the developments that have taken place consequent to the directions and also seeking time for completion of the survey.
5. The statement filed by the Tahsildar dated 3.6.2019 is relevant. It is stated thereunder that, the Taluk Surveyor has inspected the land on the basis of land acquisition sketch and re-survey sketch and surveyed boundaries of disputed area of Chavara Distributory canal extending from Bharanicavu junction to Manacadu junction, prepared a correction sketch as a prelude to rectification of mistakes in the re-survey sketch. As per WP(C).No.7379 OF 2018 7 the correction sketch prepared, there is a difference in common boundaries of canal land comprised in block No.13 of survey No.104/38 and land comprised in sub division Nos.104/2, 3, 8, 13, 14, 16, 17, 42, 53, 54 and 55 of Sasthamcotta Village.
6. It is also pointed out that, the properties included in the sub divisions are mutated and the lands cannot be distinguished as there are no boundaries. Therefore, in order to conduct survey and preparation of sketch, each land should be distinguished and notices were issued to 13 thandaper account holders and the notice period was to expire on 24.5.2019. Within the time limit, 10 thandaper holders out of 13, to whom notices were issued, demarcated their boundaries and survey in sub division work in respect of such lands were completed.
7. It is relevant to note that, the Tahsildar has reported that the remaining three thandaper holders, who have not carried out the demarcation of the boundaries are (1) Sri.Sankara Pillai i.e., the petitioner, (2) Smt.Sumangala Amma, petitioner's wife and (3) Smt.Chandra Prabha, petitioner's daughter. Therefore, the survey work could not proceeded further and same has been temporarily stopped. Thereafter, notices were issued to the aforesaid three persons on 31.5.2019 directing them to demarcate the boundaries with respect to their land. Further it is pointed out that, there is a mistake in re-survey records and re-fixation of boundaries on the disputed lands can be made WP(C).No.7379 OF 2018 8 only after preparation of revised sketch of the land and conduct of survey process on the basis of the holdings of each thandaper holders including the petitioner and his two family members, which was required as identification of each holdings can be made only on the basis of the limits of enjoyment as seen on the ground i.e., boundary of the land. But the holdings of the petitioner and his family members had no boundary and the petitioner and his two family members are reluctant to demarcate their lands. Therefore, the survey process could not be proceeded and the team included in the survey is compelled to wait until demarcation of boundaries is undertaken by the petitioner and his family members.
8. Anyhow it was also brought to the notice of this Court that, as per the Survey and Boundaries Act, after completion of the survey work, it is mandatory to issue notice in Form No.14 of the Survey and Boundaries Rules to all parties affected by the survey, and 15 days time has to be granted to submit their objections. Therefore, sought further time. Accordingly, time was granted to complete the survey, and thereafter filed a report of the District Collector dated 4.1.2020 as per a memo dated 6.1.2020, wherein it is stated that, Form No.14 notice under the Survey and Boundaries Rules, 1964 was served on all parties affected by the survey, and the sketch with the report pertaining to the disputed land i.e., the area extending from Bharanicavu junction to Manacaud junction was handed over to the Assistant Engineer, Sasthamcottah on WP(C).No.7379 OF 2018 9 25.11.2019 for taking further steps on eviction of encroachers. On 16.12.2019, the Assistant Engineer, Sasthamcottah reported that, all boundary stones were placed except at one point near Ayurvedic Hospital, Bharanicavu junction. The survey stone with respect to the Ayurvedic Hospital could not be placed as the point of fixation of survey stones comes within the Ayurvedic Hospital building. Therefore, the surveyors marked this point and pointed out the same to the KIP authorities. While so, two persons viz., Babu and Dr.Ajith, owner of Ayurvedic hospital filed O.S.No.188/2019 seeking declaration before the Munsiff Court, Sasthamcottah. Accordingly the Assistant Executive Engineer, KIP reported that, notices were issued to 9 encroachers on 6.12.2019 and 24.12.2019 for demolishing the unauthorised constructions on or before 31.12.2019. A meeting was conducted by the District Collector and it was decided that, the Assistant Executive Engineer, KIP should evict the encroachers by 31.1.2020. Names of the encroachers are also provided and petitioner's name is figured out as Sl.No.(i). It is also stated thereunder that the encroachers should be evicted before 31.1.2020 and it will be reported before this court.
9. Learned Senior Government Pleader has also pointed out that one among the notices i.e., Sl.No.(h) in the report viz., one Babu has filed a writ petition before this Court and secured an interim order. Petitioner has also filed I.A.Nos.1 & 2 producing various documents, and also WP(C).No.7379 OF 2018 10 submitted that the survey conducted by the authorities was not in accordance with law and therefore, the report submitted by the District Collector may not be accepted and further directions may be issued.
10. We have heard the petitioner, and learned Senior Government Pleader, Sri.Tek Chand, and perused the pleadings and documents on record.
11. We are of the opinion a public interest litigation would be espousing the general/public cause of a group of people who are unable to approach a court of law for various reasons, and the person approaching the court should be bonafide. That is to say, the expression is to mean, a legal action initiated by a bonafide person before a court of law for and on behalf of the public or a group of people for implementation of a general public cause in regard to any legal or statutory rights failed to be discharged by a public authority. In effect the connotation, " public interest litigation by a bonafide person" carries a very significant meaning, that it is not to ventilate the individual grievances either of the petitioner, or for and on behalf of any person with private and vested interest. Rather a public interest litigant should point out clear violation on the part of a public authority to discharge a duty cast upon him and consequently remaining disadvantages to the public or group of people. Bearing in mind the said legal principle, our venture firstly is to identify whether any manner of public interest is WP(C).No.7379 OF 2018 11 involved affecting the public or affecting the interest of the society or community at large.
12. Normally it is a difficult task to be discharged by a court and undoubtedly, it should be discharged very cautiously also. The relevance and importance of a public interest litigation was considered by the Apex Court in Bandhua Mukti Morcha v. Union of India and others [AIR 1984 SC 802] in the realm of Article 32 of the Constitution of India. Paragraphs 10 & 13 of the said judgment is relevant to the context, which read thus:
10. Moreover, when a complaint is made on behalf of workmen that they are held in bondage and are working and living in miserable conditions without any proper or adequate shelter over their heads, without any protection against sun and rain, without two square meals per day and with only dirty water from a nullah to drink, it is difficult to appreciate how such a complaint can be thrown out on the ground that it is not violative of the fundamental right of the workmen. It is the fundamental right of everyone in this country, assured under the interpretation given to Article 21 by this Court in Francis Mullin case1 to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f ) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work WP(C).No.7379 OF 2018 12 and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State -- neither the Central Government nor any State Government -- has the right to take any action which will deprive a person of the enjoyment of these basic essentials. Since the Directive Principles of State policy contained in clauses ( e) and (f ) of Article 39, Articles 41 and 42 are not enforceable in a Court of law, it may not be possible to compel the State through the judicial process to make provision by statutory enactment or executive fiat for ensuring these basic essentials which go to make up a life of human dignity but where legislation is already enacted by the State providing these basic requirements to the workmen and thus investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 21, more so in the context of Article 256 which provides that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State. We have already pointed out in Asiad Construction Workers case that the State is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when he belongs to the weaker sections of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him.
13. But the question then arises as to what is the power which may be exercised by the Supreme Court when it is moved by an "appropriate" proceeding for enforcement of a fundamental right. The only provision made by the Constitution-makers in this behalf is to be found in clause (2) of Article 32 which confers power on the Supreme WP(C).No.7379 OF 2018 13 Court "to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for enforcement of any of the fundamental rights". It will be seen that the power conferred by clause (2) of Article 32 is in the widest terms. It is not confined to issuing the high prerogative writs of habeas corpus, mandamus, prohibition, certiorari and quo warranto, which are hedged in by strict conditions differing from one writ to another and which to quote the words spoken by Lord Atkin in United Australia Limited v. Barclays Bank Ltd.4 in another context often "stand in the path of justice clanking their mediaeval chains". But it is much wider and includes within its matrix, power to issue any directions, orders or writs which may be appropriate for enforcement of the fundamental right in question and this is made amply clear by the inclusive clause which refers to in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is not only the high prerogative writs of mandamus, habeas corpus, prohibition, quo warranto and certiorari which can be issued by the Supreme Court but also writs in the nature of these high prerogative writs and therefore even if the conditions for issue of any of these high prerogative writs are not fulfilled, the Supreme Court would not be constrained to fold its hands in despair and plead its inability to help the citizen who has come before it for judicial redress, but would have power to issue any direction, order or writ including a writ in the nature of any high prerogative writ. This provision conferring on the Supreme Court power to enforce the fundamental rights in the widest possible terms shows the anxiety of the Constitution-makers not to allow any procedural technicalities to stand in the way of enforcement of fundamental rights. The Constitution-makers clearly intended that the Supreme Court should have the amplest power to issue whatever direction, order or writ may be appropriate in a given case for WP(C).No.7379 OF 2018 14 enforcement of a fundamental right. But what procedure shall be followed by the Supreme Court in exercising the power to issue such direction, order or writ? That is a matter on which the Constitution is silent and advisedly so, because the Constitution-makers never intended to fetter the discretion of the Supreme Court to evolve a procedure appropriate in the circumstances of a given case for the purpose of enabling it to exercise its power of enforcing a fundamental right. Neither clause (2) of Article 32 nor any other provision of the Constitution requires that any particular procedure shall be followed by the Supreme Court in exercising its power to issue an appropriate direction, order or writ. The purpose for which the power to issue an appropriate direction, order or writ is conferred on the Supreme Court is to secure enforcement of a fundamental right and obviously therefore, whatever procedure is necessary for fulfilment of that purpose must be permissible to the Supreme Court. It is not at all obligatory that an adversarial procedure, where each party produces his own evidence tested by cross-examination by the other side and the Judge sits like an umpire and decides the case only on the basis of such material as may be produced before him by both parties, must be followed in a proceeding under Article 32 for enforcement of a fundamental right. In fact, there is no such constitutional compulsion enacted in clause (2) of Article 32 or in any other part of the Constitution. It is only because we have been following the adversarial procedure for over a century owing to the introduction of the Anglo-Saxon system of jurisprudence under the British Rule that it has become a part of our conscious as well as subconscious thinking that every judicial proceeding must be cast in the mould of adversarial procedure and that justice cannot be done unless the adversarial procedure is adopted. But it may be noted that there is nothing sacrosanct about the adversarial procedure and in fact it is not followed in many other countries where the civil system WP(C).No.7379 OF 2018 15 of law prevails. The adversarial procedure with evidence led by either party and tested by cross-examination by the other party and the Judge playing a passive role has become a part of our legal system because it is embodied in the Code of Civil Procedure and the Indian Evidence Act. But these statutes obviously have no application where a new jurisdiction is created in the Supreme Court for enforcement of a fundamental right. We do not think we would be justified in imposing any restriction on the power of the Supreme Court to adopt such procedure as it thinks fit in exercise of its new jurisdiction, by engrafting adversarial procedure on it, when the Constitution-makers have deliberately chosen not to insist on any such requirement and instead, left it open to the Supreme Court to follow such procedure as it thinks appropriate for the purpose of securing the end for which the power is conferred, namely, enforcement of a fundamental right. The adversarial procedure has, in fact, come in for a lot of criticism even in the country of its origin, and there is an increasing tendency even in that country to depart from its strict norms. Lord Delvin speaking of the English judicial system said : "If our methods were as antiquated as our legal methods, we should be a bankrupt country". And Foster Q.C. observed : "I think the whole English system is nonsense. I would go to the root of it -- the civil case between two private parties is a mimic battle ... conducted according to rules of evidence." There is a considerable body of juristic opinion in our country also which believes that strict adherence to the adversarial procedure can sometimes lead to injustice, particularly where the parties are not evenly balanced in social or economic strength. Where one of the parties to a litigation belongs to a poor and deprived section of the community and does not possess adequate social and material resources, he is bound to be at a disadvantage as against a strong and powerful opponent under the adversary system of justice, because of his difficulty in getting WP(C).No.7379 OF 2018 16 competent legal representation and more than anything else, his inability to produce relevant evidence before the Court. Therefore, when the poor come before the Court, particularly for enforcement of their fundamental rights, it is necessary to depart from the adversarial procedure and to evolve a new procedure which will make it possible for the poor and the weak to bring the necessary material before the Court for the purpose of securing enforcement of their fundamental rights. It must be remembered that the problems of the poor which are now coming before the Court are qualitatively different from those which have hitherto occupied the attention of the Court and they need a different kind of lawyering skill and a different kind of judicial approach. If we blindly follow the adversarial procedure in their case, they would never be able to enforce their fundamental rights and the result would be nothing but a mockery of the Constitution. We have therefore to abandon the laissez faire approach in the judicial process particularly where it involves a question of enforcement of fundamental rights and forge new tools, devise new methods and adopt new strategies for the purpose of making fundamental rights meaningful for the large masses of people. And this is clearly permissible on the language of clause (2) of Article 32 because the Constitution-makers while enacting that clause have deliberately and advisedly not used any words restricting the power of the Court to adopt any procedure which it considers appropriate in the circumstances of a given case for enforcing a fundamental right. It is true that the adoption of this non- traditional approach is not likely to find easy acceptance from the generality of lawyers because their minds are conditioned by constant association with the existing system of administration of justice which has become ingrained in them as a result of long years of familiarity and experience and become part of their mental make-up and habit and they would therefore always have an unconscious predilection for WP(C).No.7379 OF 2018 17 the prevailing system of administration of justice. But if we want the fundamental rights to become a living reality and the Supreme Court to become a real sentinel on the qui vive, we must free ourselves from the shackles of outdated and outmoded assumptions and bring to bear on the subject fresh outlook and original unconventional thinking.
13. Therefore, the principle that could be culled out from the judgment of the Apex Court is that, a public interest litigation could be entertained by a constitutional court for and on behalf of poor litigants, departing from the adversarial system, to render justice. However, we are of the opinion that such a person should approach constitutional courts with clean hands and bonafide intentions. The facts and circumstances available from the report filed by the District Collector show that, petitioner and his family members have encroached into public property and has carried out agricultural operations. So much so other residents of the area have also encroached into public property in question, and is enjoying the same.
14. Anyhow it is stated that necessary steps are being taken to remove the encroachment to widen the width of the road so as to have access to the general public. Therefore, it is evident that more than a public interest, a private interest is projected by the petitioner, prima facie to cover up and protect the illegalities committed by the petitioner. The judgment of the Apex Court in S.P.Gupta v. Union of India [1981 Supp SCC 87], is relevant to the context. Paragraphs 24 & 25 read thus: WP(C).No.7379 OF 2018 18
24. But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective.
Andre Rabie has warned that "political pressure groups who could not achieve their aims through the administrative process" and we might add, through the political process, "may try to use the courts to further their aims". These are some of the dangers in public interest litigation which the court has to be careful to avoid. It is also necessary for the court to bear in mind that there is a vital distinction between locus standi and justiciability and it is not every default on the part of the State or a public authority that is justiciable. The court must take care to see that it does not overstep the limits of its judicial function and trespass into areas which are reserved to the Executive and the legislature by the Constitution. It is a fascinating exercise for the court to deal with public interest litigation because it is a new jurisprudence which the court is evolving, a jurisprudence which demands judicial statesmanship and high creative ability. The frontiers of public law are expanding far and wide and new concepts and doctrines which will change the complexion of the law and which were so far as embedded in the womb of the future, are beginning to be born.
25. Before we part with this general discussion in regard to locus standi, there is one point we would like to emphasise and it is, that cases may arise where there is undoubtedly public injury by the act or omission of the State or a public authority but such act or omission also causes a specific legal injury to an individual or to a specific class or group of individuals. In such cases, a WP(C).No.7379 OF 2018 19 member of the public having sufficient interest can certainly maintain an action challenging the legality of such act or omission, but if the person on specific class or group of persons who are primarily injured as a result of such act or omission, do not wish to claim any relief and accept such act or omission willingly and without protest, the member of the public who complains of a secondary public injury cannot maintain the action, for the effect of entertaining the action at the instance of such member of the public would be to foist a relief on the person or specific class or group of persons primarily injured, which they do not want.
15. So also in Sachidanand Pandey v. State of West Bengal [1987(2)SCC 295] the Apex Court had occasion to consider the issue in the realm of a public interest litigation, and paragraph 61 is relevant to the context, which read thus:
"61. It is only when courts are apprised of gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. I will be second to none in extending help when such help is required. But this does not mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self-imposed restraint on public interest litigants."
16. In Janata Dal v. H.S.Chowdhary [(1992)4 SCC 305, it was WP(C).No.7379 OF 2018 20 held by the Apex Court in paragraph 109 & 110 is as follows:
109. It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance, deserves rejection at the threshold.
110. The busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either for themselves or as proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffling their faces by wearing the mask of public interest litigation, and get into the courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the courts and as a result of which the queue standing outside the doors of the Court never moves which piquant situation creates a frustration in the minds of the genuine litigants and resultantly they lose faith in the administration of our judicial system."
17. In Narmada Bachao Andolan v. Union of India [(2000) 10 SCC 664] at paragraph 232 it is held as follows:
"232. While protecting the rights of the people from being violated in any manner utmost care has to be taken that the court does not transgress its jurisdiction. There is, in our constitutional framework a fairly clear demarcation of powers. The court has come down heavily whenever the executive has sought to impinge upon the court's jurisdiction."WP(C).No.7379 OF 2018 21
18. Still later, after undertaking a detailed survey of the judgements rendered by the Apex Court, in Balco Employees' Union (Regd.) v. Union of India and others [(2002) 2 SCC 333], the parameters required for entertaining a public interest litigation was laid down at paragraph 78, which read thus:
"78. While PIL initially was invoked mostly in cases connected with the relief to the people and the weaker sections of the society and in areas where there was violation of human rights under Article 21, but with the passage of time, petitions have been entertained in other spheres. Prof. S.B. Sathe has summarised the extent of the jurisdiction which has now been exercised in the following words:
"PIL may, therefore, be described as satisfying one or more of the following parameters. These are not exclusive but merely descriptive:
-- Where the concerns underlying a petition are not individualist but are shared widely by a large number of people (bonded labour, undertrial prisoners, prison inmates).
-- Where the affected persons belong to the disadvantaged sections of society (women, children, bonded labour, unorganised labour etc.).
-- Where judicial law making is necessary to avoid exploitation (inter-country adoption, the education of the children of the prostitutes).
-- Where judicial intervention is necessary for the protection of the sanctity of democratic institutions (independence of the judiciary, existence of grievances redressal forums).
-- Where administrative decisions related to development are harmful to the environment and jeopardize people's right to natural resources such as air or water."
19. After laying down the principles, it was observed by the Apex Court that in recent years, a feeling which is not without any foundation WP(C).No.7379 OF 2018 22 that public interest litigation is now tending to become publicity interest litigation or private interest litigation and has a tendency to be counter productive. It was also found, the public interest litigation is not a pill or a panacea for all wrongs and it was essentially meant to protect the basic human rights of the weak and the disadvantaged and was a procedure, which was innovated where a public spirited person files a petition in effect on behalf of such persons who on account of poverty, helplessness or economic and social disabilities could not approach the court for relief. Bearing in mind the enunciated principles, we do not think that the petitioner has approached this court with clean hands, rather his intentions are really doubtful and suspicious dissuading us to stretch our hands and extend help to resolve the issues raised.
20. Evaluated so taking into account the rival submissions and the facts and circumstances before us, we are of the view, there is no public interest at all involved in the case put forth by the petitioner and eventually it has come out that even the petitioner and his family members have encroached into the properties, which disables the authority to construct a road by the side of Kallada Irrigation Project Canal to have access to the residential properties of the people residing in the area. It is also clear from the reports filed by the District Collector that, several residents of the locality have encroached into large extent of the public property and have carried out cultivation in the same and steps are being WP(C).No.7379 OF 2018 23 taken to evict them from the premises. Therefore, we are unable to find out any public interest as was often repeated by the petitioner in the course of arguments. Thus taking into account the principles of law laid down by the Apex Court in the judgements discussed above, we are constrained to hold that petitioner has made out any case of public interest to protect the interest of the community or society as such. We are also of the opinion that neither the petitioner nor any of the persons residing in the locality, encroached into the public property, are entitled to get any orders from this court in the guise of public interest. If at all there is any interest, it is nothing but pure private interest and therefore, it is to be sorted out by the petitioner and other residents of the locality in accordance with law before appropriate forum. So also, in the backdrop of the facts discussed, petitioner is not entitled to secure any orders from this court exercising the powers under Article 226 of the Constitution of India to conduct any further land survey, on the ground that the survey conducted by the statutory authorities is not in accordance with law. More over the pleadings put forth by the petitioner does not instil confidence in us to grant any such reliefs and he has raised such objections only in the affidavits filed supporting interlocutory applications for acceptance of documents, which can never be termed pleadings in the writ petition. That apart the case put forth by the petitioner in the writ petition, is contradicted by his own versions in such affidavits, and thereby disputed and complex fact situations WP(C).No.7379 OF 2018 24 have arisen, which this court is not expected to adjudicate for very many reasons. In that view of the matter, if at all petitioner has any such case, it is for the petitioner to seek statutory remedies under law.
21. Upshot of the above discussion is, petitioner is not entitled to get any relief as is sought for in the writ petition. Resultantly, writ petition fails, accordingly it is dismissed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
smv JUDGE
WP(C).No.7379 OF 2018 25
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE ARTICLE 21 OF
CONSTITUTION OF INDIA
EXHIBIT P2 A TRUE COPY OF APEX COURT DIVISION BENCH
VERDICT IN AIR 1997 SC 152 DATED 11.10.1996
EXHIBIT P3 A TRUE COPY OF THE ARTICLE 141 OF
CONSTITUTION OF INDIA
EXHIBIT P4 A TRUE COPY OF SECTION 170 OF KERALA
PANCHAYATH RAJ ACT, 1994
EXHIBIT P5 A TRUE COPY OF SECTION 220(A) & (B) OF
KERALA PANCHAYATH RAJ ACT, 1994
EXHIBIT P6 (A&B A TRUE COPY OF SECTION 235 (F&G) OF (A) OF
KERALA PANCHAYATH RAJ ACT, 1994 AND 235(L)
(B)
EXHIBIT P7 A TRUE COPY OF SCHEDULE III, SUB SECTION
(1) OF SECTION 166 OF KERALA PANCHAYATH RAJ
ACT, 1994
EXHIBIT P8 A TRUE COPY OF SCHEDULE V, SUB SECTION (1)
OF SECTION 173 OF KERALA PANCHAYATH RAJ
ACT, 1994
EXHIBIT P9 A TRUE COPY OF MATHRUBHUMI PAPER REPORT
DATED 29.10.2017 REGARDING APPROVAL OF RS.
551/- CRORE ACCORDED FOR VARIOUS
DEVELOPMENT OF ROAD CONSTRUCTION OF KOLLAM
DISTRICT PANCHAYATH DURING THIS FINANCIAL
YEAR I.E, 2017-18
EXHIBIT P10 A TRUE COPY OF STATE PUBLIC INFORMATION
OFFICER AND VILLAGE OFFICER, SANTHAMCOTTA
LETTER NO: 9/2017 DATED 17.6.2017 REGARDING
AVAILABILITY OF SUFFICIENT WIDTH OF ABOUT
26 METER AREA AVAILABLE AS AGAINST THE
REQUIREMENT OF 6 METER FOR UTILIZATION OF
M.P. DISTRICT PANCHAYATH FUND FOR
CONSTRUCTION OF ROAD.
EXHIBIT P11 A TRUE COPY OF MASS PETITION BY PEOPLE
SUBMITTED TO THE GOVT./M.P/MLA/DISTRICT
PANCHAYATH, KOLLAM ETC.
EXHIBIT P12 (A) A TRUE COPY OF THE LETTER DATED 4.3.2013 OF
MLA KUNNATHUR TALUK ADDRESSED TO HON'BLE
WP(C).No.7379 OF 2018 26
MINISTER WATER RESOURCES FOR CONSTRUCTION
OF 25 METER CUT & COVER AND ANOTHER LETTER
DATED 1.6.2017 OF MLA ADDRESSED TO THE
CHIEF ENGINEER K.I.P. TRIVANDRUM FOR
CONSTRUCTION OF ROAD, 500 MTR. CUT & COVER
NEAR BHARANICAVU AND PANCHAYATH RESOLUTION
DATED 1.3.2013 FOR 25 METER CUT & COVER.
EXHIBIT P13 (A) A TRUE COPY OF THE MATHRUBHUMI NEWS PAPER
REPORT DATED 6.11.2017 REGARDING DECISION
OF KUNNATHUR TALUK COMMITTEE UNDER THE
CHAIRMANSHIP OF MLA FOR REMOVAL OF
ENCROACHMENT OF BHARANICAVU TO AJILIMOODU
ROAD
EXHIBIT P14 A TRUE COPY OF APPLICATION DATED 07.03.2018
SUBMITTED BY SRI. P.SANKARA PILLAI THE
PETITIONER REGARDING RE-SURVEY,
CONSTRUCTION OF CANAL ROAD & REMOVAL OF
ENCROACHMENT OF CANAL ROAD, MAIN ROAD OF
BHARANICAVU TO ALL THE FOUR SIDES, UPTO 230
METRE AREA OF MAIN ROADS ALONG WITH ENGLISH
TRANSLATION.
EXHIBIT P15 FEW PHOTOS OF ILLEGAL CONSTRUCTION OF
HOUSES, AYURVEDIC HOSPITAL, PLANTATION OF
RUBBER, THE LAND ACQUIRED FOR CANAL ROAD
AND PARKING OF MOTOR CYCLE THE PATH WAY OF
CANAL ROAD.
EXHIBIT P16 A TRUE COPY OF LETTER DATED 13/06/2019 OF
PETITIONER ADDRESSED TO THE DISTRICT
COLLECTOR KOLLAM AND ENGLISH TRANSLATION
REGARDING DETAILMENT OF OTHER SURVEYOR.
EXHIBIT P17 A TRUE COPY OF LETTER DATED 08/11/2018 OF
PETITIONER REGARDING DETAILMENT OF
EXPERIENCED SURVEYORS FROM OTHER TALUK, NON
FIXING BOUNDARY STONE BY SURVEY OFFICER ON
18/06/2018 AFTER RE-SURVEY SENDING WRONG
REPORT BY KUNNATHUR TALUK TEHSILDAR ON
09/07/2018 TO THE DISTRICT COLLECTOR,
KOLLAM.
EXHIBIT P18 PUBLIC INFORMATION OFFICER AND DY.
TEHSILDAR LETTER DATED 31/08/2018 REGARDING
WIDTH AND LENGTH OF CANAL AND NON RECEIPT
OF ANY REPRESENTATION FROM ANY ONE AGAINST
RE-SURVEY AND ENGLISH TRANSLATION.
EXHIBIT P19 TRUE COPY OF LETTER DATED 09/07/2018 OF
TAHSILDAR, KUNNATHUR TALUK REGARDING
FORWARDING SURVEY REPORT CARRIED OUT FROM
WP(C).No.7379 OF 2018 27
11/06/2018 TO 18/06/2018 TO THE DISTRICT
COLLECTOR, KOLLAM FOR ONWARD SUBMISSION TO
THE HON'BLE HIGH COURT OF KERALA.
EXHIBIT P20 TRUE COPY OF LETTER DATED 13/06/2019 OF
PETITIONER ADDRESSED TO THE DISTRICT
COLLECTOR, KOLLAM AND ENGLISH TRANSLATION
REGARDING DETAILMENT OF SURVEYORS FROM
OTHER DISTRICT / CENTAL GOVERNMENT AGENCY.
EXHIBIT P21 TRUE COPY OF LETTER DATED 08/11/2018 OF
PETITIONER REGARDING DETAILMENT OF
EXPERIENCED SURVEYORS FROM OTHER TALUK /
DISTRICT NON-FIXING OF BOUNDARY STONE BY
SURVEY OFFICER ON 18/06/2018 AFTER SURVEY,
SENDING WRONG REPORT BY THE THEN TAHSILDAR
OF KUNNATHUR TALUK TO THE DISTRICT
COLLECTOR, KOLLAM.
EXHIBIT P22 TRUE COPY OF LETTER OF PUBLIC INFORMATION
OFFICER AND DEPUTY TAHSILDAR, KUNNATHUR
TALUK DATED 31/08/2018 REGARDING WIDTH AND
LENGTH OF CANAL AND CANAL ROAD AND NON-
RECEIPT OF ANY REPRESENTATION FROM ANYONE
AGAINST RE-SURVEY AND ENGLISH TRANSLATION.
EXHIBIT P23 TRUE COPY OF SECTIONS 7 TO 9 & 15 OF THE
KERALA LAND CONSERVANCY ACT, 1957 AND RULE
1 TO 4 OF KERALA LAND CONSERVANCY RULES
1958.
EXHIBIT P24 TRUE COPY OF SETTLEMENT DEED OF 9 1/2 AND
LAND PURCHASED BY GOVERNMENT OF KERALA KIP
FOR CANAL AND CANAL ROAD FROM SRI.SANKU,
FATHER OF SRI.BABU, OWNER OF AYURVEDIC
HOSPITAL OF BHARANICAVE, NEAR COMFORT
STATION - MALAYALAM & ENGLISH TRANSLATION.
EXHIBIT P25 TRUE COPY OF SECTIONS 50, 53, 58 & 83 OF
THE KERALA SURVEY AND BOUNDARIES RULES,
1964.