Disposed

Lilly v. the State of Kerala

Kerala HC23 Nov 2021WP(C)/10584/2020

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of a writ petition filed by Lilly challenging alleged illegal encroachments and failure to implement disaster management orders regarding water channel reconstruction. The Court directed the District Collector to coordinate with PWD and Panchayat to resolve the issue within six months, ensuring no further destruction of property.

What did the court decide?

Direction to the District Collector to coordinate with PWD and Panchayat to resolve the issue within six months from receipt of the judgment.

Lilly Vs the State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2021)

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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 P.V.KUNHIKRISHNAN

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TUESDAY, THE 23RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943
WP(C) NO. 10584 OF 2020

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PETITIONER:

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LILLY

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AGED 48 YEARS
D/O.CHIRAYATH DEVASSY, ANTHIKAD P.O., ANTHIKAD
VILLAGE, THRISSUR-680641.
BY ADV G.SREEKUMAR (CHELUR)

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RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE DISTRICT COLLECTOR, COLLECTORATE, AYYANTHOLE, THRISSUR-680002.

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3 THE VILLAGE OFFICER,

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ANTHIKAD VILLAGE OFFICE, THRISSUR-680641.

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4 THE ANTHIKAD GRAMA PANCHAYATH, REP. BY ITS SECRETARY, ANTHIKAD P.O., THRISSUR680641.

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OTHER PRESENT:

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SMT.DEEPA NARAYANAN, SR.GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 23.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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W.P.(C).No.10584/2020

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P.V.KUNHIKRISHNAN, J.

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W.P.(C).No.10584 of 2020

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Dated this the 23^rd day of November, 2021

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JUDGMENT

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This writ petition is filed with following prayers:

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i. Call for the records leading to Ext-P13 and may be pleased to issue a writ of Certiorari to quash the same in the interest of justice.

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ii. Issue a writ of Mandamus or any other appropriate writ, order or direction commanding the 2^nd respondent to detect all the encroachments and the illegal reclamation of the area, by not sparing any person who has effected the same, and thus bringing forth a permanent solution for the problem as reflected in Ext.P13, in a determined period of time, in the interest of justice.

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iii. To pass any such or further orders as the petitioner may seek and this Hon’ble Court deem fit to grant.

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Petitioner is aggrieved by the alleged illegality perpetrated especially at the instance of the 4^th respondent in as much as inspite of there being clarity in the order passed by the 2^nd respondent, invoking the provisions of the Disaster Management Act, 2005, which obviously was only a temporary

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W.P.(C).No.10584/2020

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order, still the 4^th respondent attempted to cause further destruction of the property of the petitioner. It is the case of the petitioner that taking note of Ext.P5 order passed by the 2^nd respondent being the authority under the Disaster Management Act and finding that no perceivable disaster subsist in the property in question, to restore the original position in the property in question orders ought to have been had, but under one pretext or another the request of the petitioner was not adhered to. It is the case of the petitioner that she had to approach this Court and orders were passed and now the whole exercise is sought to be repeated again. Ext.P5 is an order passed by the District Collector in his capacity as Chairperson of the District Disaster Management. The grievance of the petitioner is that no further action is taken based on Ext.P5 and as per the minutes as evident by Ext.P13, the respondents are going against Ext.P5 decision of the District Collector. Hence this writ petition.

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Heard the counsel for the petitioner, Government Pleader and the counsel for the Panchayat.

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I perused Ext.P5 order in which the District Collector, who is the Chairperson of the District Disaster

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W.P.(C).No.10584/2020

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Management, issued certain directions to the authority concerned, to see that there is no further problem. Clause (6) of Ext.P5 shows that this issue is to be resolved finally after the rainy season, in consultation with PWD and Panchayat. Ext.P5 order is of the year 2018. It is the case of the petitioner that no further steps are taken in accordance to Ext.P5.

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On the other hand, the Government Pleader takes me through a report submitted by the District Collector. It will be better to extract the instructions given by the District Collector to the Advocate General:

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“Kind attention is invited to the reference cited. The District Collector, Thrissur is the second respondent in the said writ petition. A narrow water channel was dug through the petitioner's property towards the public canal during 2018 & 2019 to avoid flooding of the KMG L.P. school premises at Anthikkad on the Peringotukara - Kanjani PWD road. The property under dispute was a paddyland which was later converted. Earlier, there existed a water channel through the said property, which is now been levelled up. In order to avoid flooding, a canal 1.50 metre deep should be constructed through the PWD road. But, it is not feasible due to the following reasons:

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i. The said PWD road is too narrow for the construction of canal. In most places, the width of the road is less than 7 metres. Due to this,

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W.P.(C).No.10584/2020

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traffic cunjunction is frequent in this area.

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ii. In most places, the width of the berm is about 50cm to 60 cm. Therefore the construction of canals in both sides may lead to road accidents.

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iii. Building such a canal in the LP school premises may lead to obstruction for students and pedestrians.

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iv. The electric connection and drinking water connection pipes passes through the narrow berm.

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At present there is no other way to drain the flood water other than the erstwhile course of water channel present in the petitioner's property. Severe water-logging will contaminate the nearby wells and other fresh water sources and may lead to epidemic which will cause a hazardous situation.

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The prayer of the petitioner is to pass an interim order directing the respondents 2 to 4, to take urgent steps to construct canals on either sides of the PWD road and the encroachment if at all any is removed.

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Executive Engineer (PWD Roads) has already directed to report for encroachments if any. If at all the encroachment is found, the eviction of the same and the widening of the road and the construction of canal is a time consuming process. Any action in the matter can only be taken by the Authorities of PWD. ”

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I don’t want to make any observation about the contention of the petitioner or the Chairperson of the District

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W.P.(C).No.10584/2020

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Disaster Management. According to me, these are matters to be dealt with by the officer concerned in accordance to law after considering the ground reality of that particular area. Admittedly Ext.P5 is an order passed by the Chairperson of the District Disaster Management. I am of the view that there can be a direction to the District Collector to co-ordinate PWD and Panchayat to resolve the issue in this area finally within a time frame. The Government Pleader submitted that Ext.P13 is a proceedings in continuation of Ext.P5. But the counsel for the petitioner says that Ext.P13 is not in continuation of Ext.P5 and it is against Ext.P5. Whatever that may be, according to me, a quietus is necessary to this issue. The District Disaster Management Authority will do the needful to see that the problem of the inhabitants of this particular area is redressed.

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Therefore, this writ petition is disposed of directing the 2^nd respondent to do the needful in accordance to Ext.P5 and take appropriate measures to see that the problem in this area is resolved, as expeditiously as possible, at any rate, within six months from the date of receipt of a copy of this judgment.

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sd/-

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P.V.KUNHIKRISHNAN JUDGE

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W.P.(C).No.10584/2020

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APPENDIX OF WP(C) 10584/2020

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PETITIONER EXHIBITS
EXHIBIT P1A TRUE COPY OF THE TAX RECEIPT IN THE
NAME OF THE CHILDREN OF CHIRAYATH
DEVASSY ISSUED BY THE ANTHIKAD VILLAGE
OFFICER DATED 30.6.2015.
EXHIBIT P2A TRUE COPY OF THE DOCUMENT BEARING
NO.1052 OF 01 DATED 4.5.01 OF THE
ANTHIKAD S R O.
EXHIBIT P3A TRUE COPY OF THE TAX RECEIPT IN THE
NAME OF THE BADRUDEEN ISSUED BY THE
ANTHIKAD VILLAGE OFFICER DATED
30.6.2015.
EXHIBIT P4A TRUE COPY OF THE JUDGMENT AND DECREE
IN OS NO.5036 OF 2015 DATED 4.7.2017
ON THE FILE OF THE 3RD ADDL. MUNSIFF
COURT, THRISSUR.
EXHIBIT P5A TRUE COPY OF THE ORDER PASSED BY THE
SECOND RESPONDENT DATED 23.6.2018.
EXHIBIT P6A TRUE COPY OF THE REQUEST OF THE
PETITIONER BEFORE THE FOURTH
RESPONDENT DATED 28.9.2018.
EXHIBIT P7A TRUE COPY OF THE RECEIPT ISSUED BY
THE DISTRICT COLLECTOR, THRISSUR DATED
3.10.2018.
EXHIBIT P8A TRUE COPY OF THE REQUEST OF THE
PETITIONER BEFORE THE ANTHIKAD POLICE
DATED 20.6.2018.
EXHIBIT P9A TRUE COPY OF THE RECEIPT ISSUED BY
THE ANTHIKAD POLICE DATED 20.6.2018.
EXHIBIT P10A TRUE COPY OF THE ORDER PASSED IN WPC
NO.9045 OF 2019 DATED 25.3.2019.
EXHIBIT P11A TRUE COPY OF THE PHOTOGRAPHS TAKEN
BY THE PETITIONER RECENTLY.
EXHIBIT P12A TRUE COPY OF THE COUNTER FILED IN
WPC NO.9045 OF 2019 DATED 27.6.2019.
EXHIBIT P13A TRUE COPY OF THE ORDER PASSED BY THE
SECOND RESPONDENT DATED 6.5.2020.

Lilly v. the State of Kerala

Case brief

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Lilly v. the State of Kerala

Case brief

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