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.
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 "Uranma Devaswom". 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
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