Dismissed

Anish v. District Collector, Pathanamthitta and

Kerala HC10 Nov 2011WP(C)/18822/2009

Case brief

AI extract

What is this about?

The petitioner challenged proceedings initiated under the Kerala Land Conservancy Act for unauthorized sand removal from a river vested in the Panchayat. The court held that the Land Conservancy Act remains applicable. The writ petition was dismissed, but the petitioner was granted six months to pay the fine in instalments.

What did the court decide?

The petitioner was permitted to pay the amount due under the impugned orders in six equal monthly instalments.

Anish Vs District Collector, Pathanamthitta and — Environment and Pollution | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE ANTONY DOMINIC

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THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933

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WP(C).No. 18822 of 2009(W) --------------------------

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PETITIONER(S):

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ANISH, AGED 32 YEARS, S/O.AMMINIKUTTAN, RESIDING AT S.N.NIVAS, IRAVON P.O., KONNY, PATHANAMTHITTA DISTRICT.

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BY ADV. SRI.V.PHILIP MATHEW

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RESPONDENT(S):

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DISTRICT COLLECTOR, PATHANAMTHITTA.

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TAHSILDAR, KOZHENCHERRY TALUK.

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VILLAGE OFFICER, IRAVON.

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ARUVAPULAM GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, PATHANAMTHITTA.

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TAHSILDAR (RR), PATHANAMTHITTA.

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STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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GOVERNMENT PLEADER SMT.M.J.RAJASHREE FOR R1,2,3,5,6

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC.18822/2009

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1 COPY OF THE PROCEEDINGS OF R2 DT 5.4.06. P2 COPY OF THE NOTICE DT 31.7.06 ISSUED BY R2. P3 COPY OF THE PROCEEDINGS OF R2 DT 12.10.06. P4 COPY OF THE DEMAND NOTICE. P5 COPY OF THE JUDGMENT DT 4.7.08. P6 COPY OF THE ORDER DT 8.4.09. P7 COPY OF THE APPEAL FILED BEFORE R1. P8 COPY OF THE ORDER DT 17.6.09.

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// True Copy //

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P.A. To Judge

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ANTONY DOMINIC, J.

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W.P.(C) No. 18822 of 2009 W

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Dated this the 10^th day of November, 2011

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~ ~ ~ ~ ~ ~ ~ ~ ~ ~

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Petitioner challenges Exts.P2 to P4 and P8. He also seeks a declaration that the proceedings initiated against him under the provisions of the Kerala Land Conservancy Act are illegal and unsustainable.

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Ext.P2 is a notice issued by the second respondent, exercising his powers under the Kerala Land Conservancy Act and calling upon the petitioner to appear before him for an enquiry, in connection with the alleged unauthorised removal of river sand from the bed of the Achankovil river. According to the petitioner, without conducting any enquiry, Ext.P3 order was passed directing him to remit an amount of `1,05,200/- towards the value of the river sand, royalty and fine. Against this order, petitioner filed Ext.P7 appeal before the District Collector, which was

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rejected by Ext.P8 order. It is challenging these proceedings, this writ petition is filed with the prayers mentioned above.

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Main contention raised by the learned counsel for the petitioner is that the Achankovil river is one vested in the fourth respondent Panchayat by virtue of Section 218 of the Kerala Panchayat Raj Act, 1994 and, therefore, the proceedings under the Kerala Land Conservancy Act initiated against him are without jurisdiction.

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A counter affidavit has been filed wherein the factual contentions raised by the petitioner are disputed. It is stated that, in response to Ext.P2 notice, though the petitioner appeared, he did not file any objection and it was in those circumstances, Ext.P3 order was issued. It is also stated that the petitioner had unauthorisedly removed and sold more than 100 loads of river sand from Achankovil river and that it was therefore proceedings were initiated culminating in Exts.P3 and P8 orders. It is also contended that even in spite of Section 218 of the Kerala Panchayat Raj Act, by virtue of the

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provisions contained in the Kerala Land Conservancy Act, the second respondent was justified in initiating the proceedings and passing the impugned orders.

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I have heard the learned counsel for the petitioner, the learned Government Pleader and the counsel appearing for the respondents. The main contention raised is regarding the competence of the respondents for initiating proceedings under the Kerala Land Conservancy Act . Section 218 of the Kerala Panchayat Raj Act provides for the vesting of water courses, springs, reservoirs, etc. in Village Panchayats. This Section reads thus:-

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“ 218. Vesting of water course, springs, reservoirs, etc., in Village Panchayats – (1) 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 water courses (other than rivers passing through more areas, than the Panchayat area which the Government may,

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by notification in the Gazette, specify), the beds and banks of rivers, streams, irrigation and drainage channels, canals, lakes, back waters and water courses and all standing and flowing water, springs, reservoirs, tanks, cisterns, fountains, wells, kappus, chals, stand pipes and other water works including those used by the public to such an extent as to give a prescriptive right to their use whether existing at the commencement of this Act or afterwards made, laid or erected and whether made, laid or erected at the cost of the Panchayat otherwise, and also any adjacent land, not being private property appertaining thereto shall stand transferred to, and vest absolutely in the Village Panchayat:

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Provided that nothing contained in this sub-section shall apply to any work which is, or is connected with, a work or irrigation or to any adjacent land appertaining to any such work.

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(2) Subject to the provisions of this

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Act, all rights and liabilities of the Government in relation to the water courses, springs, reservoirs, tanks, cisterns, fountains, wells, kappus, chals, stand pipes and other water works vested in the Village Panchayat under sub-section (1) shall from the date of such vesting, be the rights and liabilities of the Village Panchayat.

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(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), the Government may, by notification in the Gazette, assume the administration of any public source of water supply and public land adjacent and appertaining thereto after consulting the Village Panchayat and giving due regard to its objection, if any.

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(4) It shall not be lawful for any person to remove or appropriate for himself, any tree, earth, sand, metal, laterite, limeshell or such other articles of value as may be notified by the Village Panchayat, under this Act, whether a poramboke or not, except under and in accordance with the

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terms and conditions of a permit issued by the Village Panchayat in this behalf and on payment of such fees and compensation at the rate determined, by the Village Panchayat.”

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Reading of sub-sections (1) and (2) shows that notwithstanding anything contained in the Kerala Land Conservancy Act, 1957, the beds and banks of rivers passing through Panchayat area, shall stand vested absolutely in the Village Panchayats and that from the date of vesting, the rights and liabilities of the Government shall be the rights and liabilities of the Village Panchayat. In view of sub-section (4), it shall not be lawful for any person to remove and appropriate for himself any sand or other articles of value from the river vested in the Village Panchayat, except in accordance with a permit issued by the Village Panchayat. It should also be noticed that the State has no case that in respect of Achankovil river any notification has been issued or that the Government has taken over the administration of the river. It

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is also true that in the judgment in Parameswaran Nair Vs. Ettumanoor Panchayat [1986 KLT 951] this Court has held that a river takes in the river bed also. Thus, a reading of Section 218 would indicate that, irrespective of the provisions of the Kerala Land Conservancy Act, there has been an absolute vesting of the Achankovil river in the fourth respondent Panchayat.

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However, it is seen from the Kerala Land Conservancy Act that the lands belonging to any Panchayat as defined in the Kerala Panchayat Raj Act, 1994 are also properties of the Government in view of the IVth Explanation to Section 3 of the Kerala Land Conservancy Act, 1957. Section 3(1) of the Kerala Land Conservancy Act and Explanation IV thereof are extracted below for reference:-

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“ 3. Property of Government defined – (1) All public roads, streets, lanes and paths, the bridges, ditches, dykes and fences on or beside the the same the bed of the sea and of harbours and creeks below

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high water mark, the beds and banks of rivers, streams, irrigation and drainage channels, canals, tanks, lakes, backwaters and water courses, and all standing and flowing water, and all lands wheresoever situated, save in so far as the same are the property of -

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(a) Jenmies, Wargdars or holders of Inams; or

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(b) persons registered in the revenue records as holders of lands in any way subject to the payment of land revenue to the Government; or

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(c) any other registered holder of land in proprietary right; or

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(d) any person holding land under grant from the Government otherwise than by way of a lease or licence; or

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(e) any person claiming through or holding under any of the persons referred to in clauses (a), (b), (c) or (d), are, and are hereby declared to be, the property of Government, except as may be otherwise

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provided by any law for the time being in force, subject to all rights of way and other public rights and to the natural and easement rights of other land owners and to all customary rights legally subsisting.

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Explanation IV - (1) Lands belonging to the Government of any other State in India or the Kerala Stage Electricity Board or to a University established by law or to any Panchayat as defined in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or any Municipality as defined in the Kerala Municipality Act, 1994 (20 of 1994) owned or controlled by the Government of Kerala or to a Municipal Corporation shall be deemed to be the property of Government within the meaning of this section.

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(2) All unassessed lands within the limits of private estates used or reserved for public purposes or for the communal use of villagers, and all public roads and streets vested in any local authority shall, for the

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purpose of this Act, be deemed to be the property of Government.”

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A close perusal of Explanation IV to Section 3 shows that the Panchayat as defined in the Panchayat Raj Act, 1994 was included in Explanation IV, by an amendment as per Act 16/2000. Similarly, Section 20 of the Kerala Land Conservancy Act was also amended in 2000, enabling the Government to authorise officers including Secretaries of Panchayats to exercise all or any of the powers of the Collector under the Act. However, no such notification was brought to my notice. Therefore, although by virtue of Section 218 of the Kerala Panchayat Raj Act, 1994, Achankovil river is vested in the fourth respondent Panchayat absolutely, the legislature has subsequently chosen to amend Explanation IV to Section 3 of the Kerala Land Conservancy Act, in 2000 to retain the properties of the Panchayat also as Government properties.

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Relying on the Apex court judgment in State of

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Maharashtra Vs. Vithalrao Ganpatrao Warhade [1998 (8) SCC 284], the learned counsel for the petitioner contended that, when a subsequent Act amends an earlier Act, it is as if the altered words had been written into the earlier Act and that, since the Kerala Panchayat Raj Act is an Act of 1994, the provisions of the Panchayat Raj Act should prevail over the provisions of the Kerala Land Conservancy Act, 1957. He also emphasised the non-obstante clause contained in Section 218 of the Kerala Panchayat Raj Act to buttress his submission that the Panchayat Raj Act will prevail over the Kerala Land Conservancy Act. He also contended that the amendment in 2000 was only to the Explanation to Section 3 of the Kerala Land Conservancy Act and that the substantive provisions of the Act were not amended.

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Although these contentions of the learned counsel would appear to be attractive, on a closer scrutiny of the same, I am unable to accept it, for the reason that acceptance of these contentions would result in a situation where the

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provisions contained in Explanation IV to Section 3 of the Kerala Land Conservancy Act would be rendered meaningless. I say so for the reason that, when the legislature amended Explanation IV to Section 3 of the Kerala Land Conservancy Act, the legislature was fully conscious of the fact that in 1994, the Kerala Panchayat Raj Act was introduced and that, Section 218 of the Act contained a non obstante clause and contemplated an absolute vesting of river and the river beds in the Panchayats. It is despite this knowledge, in 2000, that the legislature amended the Explanation IV to Section 3 of the Kerala Land Conservancy Act and included the properties of the Panchayats also into the definition of Government property. This Court cannot assume that the said amendment was without any purpose and this Court is bound to give effect to each word of the statute. Such a purpose can only be that despite the vesting as per Section 218, the Government still wanted to retain at least a limited control over the properties of the Panchayat as

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well. This view has already been taken by this Court in Saidalavi Haji Vs. Tanur Grama Panchayat [2009 (2) KLT

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168], wherein it has been held thus:-

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“I am unable to read such a meaning into either S.169 of the Kerala Panchayat Raj Act or the Kerala Land Conservancy Act or both read together. At best it would mean that the power to evict unauthorised occupation from property of the Panchayat is concurrently vested with the Government and the Panchayat both. From the same I could not see any exclusion of this power of the Panchayat and conferring of exclusive jurisdiction on the Government in the matter of eviction of unauthorised occupation from land belonging to the Panchayat.”

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Learned counsel for the petitioner relied on the Division Bench judgment of this Court in Vathsan V. Vs. Government of Kerala and others [ILR 2002 (3) Ker 245], wherein it has been held thus:-

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“Thus in respect of lands belonging to a Municipality the provisions of the KLC Act, 1957 has no application since 30^th May 1994, i.e., the date of commencement of the Kerala Municipality Act, 1994 and the procedure provided in the Municipality Act, 1994 has to be applied for eviction of unauthorised encroachment of property vested in the Municipal Corporation.”

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Counsel also placed reliance on the judgment of this Court in John Abraham Vs. Pindimana Grama Panchayat and others [2007 KHC 3819]. However, a reading of these judgments shows that this Court did not refer the provisions of Section 3 of the Kerala Land Conservancy Act, while making the aforesaid observation. Therefore, these judgments are of no assistance to the petitioner. For the aforesaid reasons, I am not in a position to accept the contention of the learned counsel for the petitioner that by virtue of Section 218 of the Kerala Panchayat Raj Act, the Kerala Land Conservancy Act is inapplicable to the properties

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vested in the Panchayats. Therefore, the said plea raised by the petitioner is to be rejected and I do so.

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It was then contended that Ext.P3 order was passed without hearing the petitioner. However, specific averment in the counter affidavit shows that, though the petitioner appeared in response to the notice issued to him, he did not even file any objection in the matter. In such circumstances, when the petitioner did not contest the matter, I cannot find that respondents have violated the principles of natural justice even if they have decided the matter without hearing the petitioner. Therefore, I do not find any substance in this contention also.

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At this stage, counsel for the petitioner seeks an instalment facility to pay the amount due by Exts.P3 and P8. Having considered this submission, I direct that the petitioner will be permitted to pay the amount due under Exts.P3 and P8 in six equal monthly instalments, the first of which shall be paid on or before 01.02.2012 and the subsequent instalments

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shall be paid on or before the first day of every succeeding month without default. It is made clear that in case default is committed, the respondents will be free to recover the amount from the petitioner in accordance with law.

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Writ petition is disposed of as above.

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Sd/- (ANTONY DOMINIC, JUDGE)

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aks/11/11

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// True Copy //

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P.A. To Judge

Anish v. District Collector, Pathanamthitta and

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Anish v. District Collector, Pathanamthitta and

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