Friday, June 29, 2012

In Other Courts: K.K.Sachidanandan vs The District Collector,... on 16 March, 2011


IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 3890 of 2011(S)

1. K.K.SACHIDANANDAN,
... Petitioner
Vs

1. THE DISTRICT COLLECTOR, COLLECTORATE, ... Respondent
2. THE REVENUE DIVISIONAL OFFICER,
3. ARIMPUR GRAMA PANCHAYAT,
4. THE NAMBOORKKAVU DEVASWOM,

For Petitioner:SRI.P.B.SAHASRANAMAN For Respondent:GOVERNMENT PLEADER

The Hon'ble the Chief Justice MR.J.CHELAMESWAR The Hon'ble MR. Justice ANTONY DOMINIC Dated: 16/03/2011

O R D E R

J.Chelameswar, C.J. & Antony Dominic, J. ------------------------------------------ W.P.(C) No.3890 of 2011

------------------------------------------ Dated this the 16th day of March, 2011 JUDGMENT
J.Chelameswar, C.J.

The writ petition is filed with the prayers as follows: "i) To issue, a writ, direction or order in the nature of mandamus commanding the respondents 1 to 3 to take immediate measures to see that the pond in front of the temple of the 4th respondent at Veluthur Village in Arimbur Grama Panchayat is not reclaimed or trespassed, and to remove all trespassing and take all measures to maintain purity of the same, forthwith. ii) Such other reliefs which this Hon'ble Court deems fit and necessary in the circumstances of the case so as to protect the said pond referred to above and the costs of this case.

2. The facts are as follows: The petitioner is a resident of the Veluthur Village in Arimbur Grama Panchayat. It appears that there is a temple in the said village allegedly owned by the & quot; Uranma Devaswom& quot;. It also appears that there is a pond in front of the said temple. The petitioner asserts that the pond is 'puramboke' as defined under the Kerala Land Conservancy Act, 1957. The petitioner also asserts that the 4th respondent Devaswom have decided to construct a marriage hall by reclaiming the above mentioned pond and took certain steps for the said purpose. Therefore, the instant writ petition is filed complaining that though the state of affairs is brought to the notice of the other respondents no action was taken by them.

3. Having regard to the nature of the complaint we called upon the learned Government Pleader to obtain instructions in the matter. The learned Government Pleader filed a report dated 14th February, 2011. According to the said report, the land in question on which the pond exists is not 'puramboke', but 'nilam' land owned by the 4th respondent Devaswom. It is also admitted in the said report that the 4th respondent was attempting to fill up the said pond as alleged by the petitioner, but the police stopped the said activity.

4. In view of the said report, the assertion of the petitioner that an attempt is being made by the 4th respondent to fill up an existing tank is sufficiently established.

5.The Supreme Court in the case of Jagpal Singh & Others v. State of Punjab & others (CDJ 2011 SC 93) at paragraphs 18 and 19 held as follows: "18. Over the last few decades, however, most of these ponds in our country have been filled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country.

19. Also, many ponds are auctioned off at throw away prices to businessmen for fisheries in collusion with authorities/Grama Panchayat officials, and even this money collected from these so called auctions are not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop. The Supreme Court while dealing with the complaint regarding the filling up of ponds in this country further directed at paragraph 22 as follows:

& quot; Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village."

6. However, the question whether the pond exists on a land which can be classified under the revenue laws of the State of Kerala either as 'puramboke' or as 'nilam' is a question which depends upon the existence of certain facts. Depending upon the true nature of the land and the classification made of the same in the revenue records the right of the 4th respondent to fill up the land and the conditions subject to which such right can be exercised also vary. Determination of all these questions, in our opinion, require evidence to be recorded and documents to be examined which exercise is not normally undertaken by this Court under Article 226 of the Constitution of India. Sections 91 and 92 of the Code of Civil Procedure expressly provides for adjudication of such disputes.

7. We therefore deem it appropriate to close the present writ petition reserving the liberty of the petitioner to move the competent civil court for appropriate relief. We also deem it appropriate to direct the respondents to maintain the status quo existing as on today with regard to the above mentioned pond for a period of two months. It will be open to the petitioner to seek such appropriate interim orders from the competent civil court as and when the suit such as the one referred to above is instituted. J.Chelameswar,

Chief Justice
Antony Dominic,
Judge
vns

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