The Court dismissed a writ petition challenging the alignment of fishing stake nets. Finding the matter involved disputed questions of fact unsuitable for writ jurisdiction, the Court directed civil court remedy and dismissed the petition.
Original Petition dismissed; parties directed to approach civil court for factual disputes.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE V.K.MOHANAN
FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931
OP.No. 13823 of 1998(U)
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PETITIONER(S):
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1. PANANGADU CHOWKKEKADAVU CONNI UDUMA SANGHOM, PANANGAD P.O., REP.BY ITS PRESIDENT, N.K.MRUTHUNJAYAN, MUTHIKAYIL HOUSE, PANANGAD P.O., COCHIN 682 506.
2. K.A.RAJAN, EXECUTIVE COMMITTEE MEMBER, PANANGADU CHOWKKEKADAVU CONNI, UDUMA SANGHOM, PANANGADU P.O. COCHIN 682 506.
BY ADVS.MR.M.P.KRISHNAN NAIR MR.N.RADHAKRISHNAN
RESPONDENT(S):
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1. THE STATE OF KERALA, REP.BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.
2. THE DEPUTY DIRECTOR OF FISHERIES, ALAPPUZHA.
3. INSPECTOR OF FISHERIES, THEVARAVATTOM, POOCHAKKAL, CHERTHALA
OP. NO.13823/1998
6. DINAMONY, SURVEYOR, OFFICE OF THE TALUK SURVEYOR, CHERTHALA.
7. REGHUVARAN UPPUPADANNAYIOL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
8. PADMANABHAN ONAPARAMBIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
9. O.E.PRABAKARAN KATTITHARA NIKARATH, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPUZHA DISTRICT.
10. SANKARAN GOPI KOCHUKANNAMPRAMBU, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
11. CHAKRAPANI KATTUKULANGALTHARA NIKARATH AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
12. AYYAPPAN PADMANABHAN, ONAPARAMBIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
13. K.S.VIDYADHARAN, BIJU NIVAS, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA.
14. KANDAMBY MADHAVAN, KAVUNKAL KUMBEL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
15. VELAYUDHAN RAJU KAVUNKAL NIKARTHU, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
16. KRISHNAN RAGHAVAN, KIZHAKE NIKARTHU, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
OP. NO .13823/1998
17. K.R.SURENCRAN, KORAMBANMURI, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
18. K.V.SREEDHARAN, KUMBER NIKARTH, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
19. N.RAMANAN, KINATH KUMBEL AROOKUTTY VILLAGE , CHERTHALA TALUK, ALAPPUZHA DISTRICT.
20. VELU MOHANAN, KAVUNKAL NIKARH, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
21. D.PRASAD, MENAKUTTYCHIRA, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
22. V.K.VAMANAN, VADAKKEPAYATTUVELIYIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
23. P.E.GOPALAN, MENAKUTTYCHIRA AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
24. P.E.KRISHNANKUTTY, VADAKKEPAYATTUVELIYIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
25. P.E.SIVASANKARAN, CHOOLAKKAL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
26. M.SASI, PULIKKAL NIKARATH, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
27. M.MOHANDAS, PAYATTUVELIYIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
28. SREEDHARAN KRISHAKEMATTIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
29. NEELAMBARAN, KIZHAKKEMATTEL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
OP. NO.13823/1998
30. N.NARAYANAN, SURESH BHAVAN, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
31. K.E.DAMODHARAN, KINATHY KOMBEL, AROOKUTTY VILLAGE CHERTHALA TALUK, ALAPPUZHA DISTRICT.
32. K.K.JAYAPALAN, KIDASSERIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
33. A.BHASKARAN, BENNI NIVAS, AROOKUTTY VILLAGE, CHERTHALA TLAUK, ALAPPUZHA DISTRICT.
34. VAVA PADMANABHAN, KAVUNKAL KOOMBEL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
35. KANDAMBI KUMARAN, KAVUNKAL KOOMBEL, AROOKUTTY VILLAGE, CHERTHALA DISTRICT, ALAPPUZHA DISTRICT.
37. P.K.VELAYUDHAN, PULIKKAL , AROOKUTTY VILLAGE, CHERTHALA TLAUK, ALAPPUZHA DISTRICT.
38. M.P.DOMSN, KOOMBEL NIKARATH , AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
39. K.V.KARUNAKARAN, ALAPARAMBIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
40. K.V.ARAVINDAN, KADAVIN PARAMBIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
41. SHANKU BHUVANACHANDRAN, KUMBALAKKAL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
42. R.VASU, KUTTUKALTHAR, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
43. DINESHAN, S/O. LATE AYYAMMA, KOOMBER, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
44. SUDARSHAN, S/O. LATE AYYAMMA, KOOMBEL , AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
OP. NO.13823/1998
45. SADANANDHAN, S/O. LATE AYYAMMA, KOOMBEL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
46. SOMAN, S/O. LATE RAGHAVAN, ONAPARAMBU AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
47. PRASAD, S/O. LATE RAGHAVAN, ONAPARAMBU, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
48. KALASHAN, S/O. LATE RAGHAVAN ONAPARAMBU, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
49. SASI, S/O. LATE VELAYUDHAN, KIZHAKKAMATEL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
50. ASHOKAN, S/O. LATE VELAYUDHAN , KIZHAKKEMETTEL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
51. SOMAN, S/O. LATE P.E.VELAYUDHAN, CHOOLAKKAL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
52. PRAMOD, S/O. LATE P.K.DASAN, PAYATTUVELIYIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
53. SREEKUMAR, S/O. LATE P.K.DASAN, PAYATTUVELIYIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
54. CHANDRAN, S/O. LATE KRISHNAPPAN, KAVUNKAL KOOMBEL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
55. BABU, S/O. LATE KRISHNAPPAN, KAVUNKAL KOOMBEL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
56. SASI, S/O. LATE KRISHNAPPAN , KAVUNKAL KOOMBEL, AROOKUTTY VILLAGE,CHERTHALA TALUK, ALAPPUZHA DISTRICT.
57. SUSHAMA, W/O. LATE CHELLAPPAN, KAVUNKAL KOOMBEL, AROOKUTTY VILLAGE , CHERTHALA TALUK, ALAPPUZHA DISTRICT.
OP NO.13823/1998
58. MADANAN, S/O. LATE SANKUNNI, UPPUPADANNAYIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
59. DINESHAN, S/O. LATE KUMBER NIKARTH, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
60. SUDHEER, S/O. LATE R.VELAYUDHAN, KOOTUNKALTHARA, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
BY ADV. BY MR.P.K.SURESH KUMAR FOR R7,8,10TO 24, 26 TO 28, 30 TO 33, 37, 39 TO 41 R 45, 48,50, 54 & 57
SMT.M.R.SREELATHA FOR R30 TO 33 GOVERNMENT PLEADER MR.T.K.VIPIN DAS FOR MR.K.THAVAMONY FOR MR.S.P.CHALY FOR R 38 TO 42
THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 10/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ORDER ON CMP. NOS.24368/1998,28289/1998 , 4646/2001 IN OP 13823/1998
CLOSED
10/07/2009
SD/- V.K.MOHANAN, JUDGE
APPENDIX
PETITIONER'S EXHIBITS
P1:- COPY OF THE AGREEMENT DTD. 5.3.84 SIGNED BY THE PRESIDENT OF PANANGAD CHOWKKEKADAVU CONNI UDAMA SANGHOM ON BEHALF OF KAVUNGAL KIZHAKKE OONNIPAD.
P2:- COPY OF THE TRANSFER CERTIFICATE OF SANKU BHUVANACHANDRAN (RESPONDENT NO.41) DT. 5.10.91 ISSUED BY DIRECTOR OF FISHERIES.
P3:- COPY OF THE TRANSFER CERTIFICATE OF RAMAN VSU (RESPONDENT NO.42) DT. 1.10.91 ISSUED BY THE DIRECTOR OF FISHERIES.
P4:- COPY OF THE REPRESENTATION DT. 10.8.94 SUBMITTED BY THE PETITIONER S TO THE 2ND RESPONDENT.
P5:- COPY OF THE JUDGMENT IN WA. NO.189/96 PASSED BY THE DIVISION BENCH OF HONOURABLE HIGH COURT OF KERALA.
P6:- COPY OF THE SKETCH, DT. 12.1.98 ISSUED BY TALUK SURVEYOR N.RAMACHANDRAN .
P7:- COPY OF THE PROCEEDINGS NO.C.3701/94 DTD. 28.10.97 ISSUED BY THE 2ND RESPONDENT.
P8:- COPY OF THE JUDGMENT DTD. 9.3.98 IN OP. NO.3557/98 PASSED BY THE HONOURABLE HIGH COURT OF KERALA.
P9:- COPY OF THE AFFIDAVIT DTD. 14.7.98 FILED BY 2ND RESPONDENT BEFORE THE HONOURABLE HIGH COURT OF KERALA.
P10:- COPY OF THE LETTER NO.C 241/98 DT. 24.6.98 ISSUED BY THE 2ND RESPONDENT. P11:- COPY OF THE LETTER NO.4/96, DTD. 10.12.97 ISSUED BY THE 3RD RESPONDENT. P12:- COPY OF THE ROUGH SKETCH OF THE CONNIS (STAKES) SHOWING ALL DETAILS. P13:- COPY OF THE ORDER NO.C.241/98 DTD. 21.7.98 ISSUED BY THE 2ND RESPONDENT.
OP. NO.13823/1998
ANNEXURE A:- SKETCH SHOWING THE POSITION OF ALL THE CONNIS. ANNEXURE B:- SKETCH PREPARED BY THE SUPERINTENDENT OF SURVEY. RESPONDENT'S EXHIBITS
R2(a):- COPY OF THE LR. NO.H4/1193/09 DTD. 12.6.09 OF ADDL. TAHSILDAR, CHERTHALA.
R2(b):- SURVEY PLAN ISSUED BY THE TALUK SURVEYOR, CHERTHALA DTD. 11.6.09. R7(a):- COPY OF THE PLAN ATTACHED TO THE LICENCE GIVEN TO RESPONDENTS.
TRUE COPY
P.A. TO JUDGE
TSS
V.K.MOHANAN, J.
O.P.No. 13823 of 1998 U
Dated this the 10th day of July, 2009
J U D G M E N T
The first petitioner is the PanangadChowkkakadavu Oonnie Udama Sangham represented by its President and the second petitioner is a member of the Executive Committee of the above Sangham. They are the residents of Panangad in Ernakulam District. They approached this Court praying inter alia to quash Ext.P13 and also to issue a writ of mandamus or any other appropriate writ, order or direction declaring that the action of the second respondent in getting the second survey report from the sixth respondent and issuing Ext.P13 is illegal. The third prayer is to issue a writ of mandamus directing the second respondent to act upon the direction of this Court in the judgment in W.A.No.189 of 1996 and the order in O.P.No.3557 of 1998.
OP NO.13823 of 1998
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favour of the contesting respondents. Initially, against Exts.P2 and P3, the petitioner herein preferred O.P.No.11615 of 1994 and the said O.P. was disposed of by this Court along with C.R.P.No.173 of 1995. Against Exts.P2 and P3, the first petitioner filed Ext.P4 representation. By the common judgment of this Court in both the above cases, the learned single Judge directed the Director of Fisheries, Thiruvananthapuram to dispose of Ext.P4.
OP NO.13823 of 1998
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1974 regarding the distance.” The Division Bench in the above judgment further observed that the authorities would certainly implement Exts.P2 and P3 in accordance with the rules.
OP NO.13823 of 1998
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Arookutty Village. It is also stated that the
measurement or erection of stake line is commenced from this point and first stake net No.3 of Sri.Reghuvaran of Uppu Padannayil, Arookutty is planted 218 metres away in north-east direction in the above survey. It is the above order challenged by the petitioners in this writ petition.
OP NO.13823 of 1998
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Pleader submits that in Ext.P2, what stated is not with respect to any particular property lying in any one of the survey numbers, but the entire property, spread over the survey numbers mentioned therein, has to be taken as one for the purpose of measurement. Therefore, according to the learned counsel and the learned Government Pleader, in Ext.P13, the second respondent has made it clear in the following words.
“...... the pattayam Eluga of the Kavungal Kizhakke Stake Line is measured from the survey stone of South-East corner of Kavungal Koombal Purayidom comprised in Sy.Nos.224/16,17 and 225/1 of Arookutty Village and ............”
But the learned counsel for the petitioners submits that the above order of the second respondent is incorrect when it is considered on the strength of the description given in Exts.P2 and P3. The case of counsel for the petitioner is that in spite of the direction issued by this Court as per Ext.P8 judgment, the respondents have not complied with such direction.
OP NO.13823 of 1998
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on 17.12.2008, this Court directed the second respondent to make a report after the spot inspection. Accordingly, the second respondent has filed an affidavit dated 1.7.2009 wherein he had stated that he had personally visited the spot on 10.6.2009 along with the Taluk Surveyor and also stated that he had perused the revenue records pertaining to the properties and on such perusal of records, according to him, the properties were comprised in Sy.Nos. 224/16,224/17 and 225/1. Regarding these aspects, there is no dispute. He had further reported that the Kavungal Kizhakku stake line plan fixed from taking measurements from the point where line measuring 27.9 and 10.5 intersects and he had verified the present location of the stake nets and stated that there is no violation of the licence. It is also reported that during his inspection, it has been ascertained that shifting of the stake nets towards the shore would cause obstruction to the National Water Way and therefore, shifting of the line towards the shore is undesirable.
OP NO.13823 of 1998
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OP NO.13823 of 1998
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obstruction to the National Water Way.
OP NO.13823 of 1998
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Subject to the above observation, the Original
Petition is dismissed.
V.K.Mohanan, Judge
MBS/
OP NO.13823 of 1998
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V.K.MOHANAN, J.
O.P.NO. 13823 OF 1998
J U D G M E N T
DATED: 10-7-2009
OP NO.13823 of 1998
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2 issues framed by the court
Whether disputed questions of fact regarding alignment of stake nets can be resolved in proceedings under Article 226.
Whether the respondents complied with previous court directions regarding the measurement of stake lines.
PANANGADU CHOWKKEKADAVU CONNI UDUMA SANGHOM
K.A.RAJAN
THE STATE OF KERALA
THE DEPUTY DIRECTOR OF FISHERIES
INSPECTOR OF FISHERIES
N. RAMACHANDRAN
V.K.MOHANAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
