Disposed

Onjithodu Samrakshana Janakiya Samiti v. State of Kerala (Deleted)

Kerala HC18 Nov 2021WP(C)/9562/2021

Case brief

AI extract

What is this about?

The petition concerned delayed survey and removal of encroachments for canal revival. The court disposed of it with directions to survey, earmark and remove encroachments as set out in the Tahsildar's report, while requiring the matter to be posted after four months to ascertain compliance.

What did the court decide?

Respondents directed to survey, earmark and remove encroachments as set out in the report; matter to be posted after four months to ascertain compliance.

Onjithodu Samrakshana Janakiya Samiti Vs State of… — Environment and Pollution | 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 THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 18^TH DAY OF NOVEMBER 2021 / 27TH KARTHIKA, 1943 WP(C) NO. 9562 OF 2021

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PETITIONER/S:

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ONJITHODU SAMRAKSHANA JANAKIYA SAMITI REPRESENTED BY ITS CONVENER SRI.K.S PRAKASHAN S/O. K.M SIVARAMAN, KOLLAMPARAMBIL KADUNGALLOOR WEST, ALUVA 683 110.

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BY ADVS. S.KARTHIKA SMT.PREETHY KARUNAKARAN SMT.K.MEERA SMT.ANJANA M VADHYAR

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RESPONDENT/S:

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1 STATE OF KERALA (DELETED) REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN 682 030.

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[RESPONDENT NO. 1 DELETED AS PER ORDER DATED 12.08.2021 IN IA1/21 IN WPC 9562/2021]

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2 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, IRRIGATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-682 030.

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3 THE PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM PIN 695 001.

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4 DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION KAKKANAD, ERNAKULAM, PIN-682 030.

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5 TAHSILDAR (L.R)

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1ST FLOOR, POLICE STATION ROAD, ABOVE SUB REGISTRAR OFFICE, NORTH PARAVUR PIN 683 513.

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6 KADUNGALLOOR GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, MUPPATHADAM P.O, ALUVA 683 110.

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7 ALANGAD GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, NEERIKODE P.O, ALANGAD 683 511.

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BY ADVS. R2-R5 BY SRI. K.P. HARISH, SR. GOVERNMENT PLEADER R6 & R7 BY SRI. DINESH MATHEW J.MURICKEN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No. 9562/2021

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Dated this the 18^th day of November, 2021

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JUDGMENT

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S. MANIKUMAR, CJ.

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Petitioner, a society registered under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act, 1955, bearing reg. No. EKM/TC/585/18, has filed this writ petition as a Public Interest Litigation.

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Being aggrieved by the inaction on the part of the respondents in carrying out survey of the land on the sides of 'Onjithodu' canal in Ernakulam District, to verify the encroachments as a pre-requisite for the revival project of the canal, instant Public Interest Litigation is filed seeking the following reliefs:

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a) to issue a writ of mandamus or other appropriate writ, order or direction directing the 4^th respondent to issue orders for survey of the land on either side of the 'Onjithodu' in Ernakulam district as a preliminary step to remove encroachments and unscientific constructions as opined by Chief Engineer (Irrigation) in Ext.P2 report.

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b) to issue a writ of mandamus or other appropriate writ, order or direction directing the 5^th respondent to deploy a special survey team to carry out survey of the land on either side of 'Onjithodu' which has been encroached upon as referred in Ext.P9 letter issued by him.

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c) to issue a writ of mandamus or other appropriate writ, order or direction directing the 4^th respondent to initiate steps under Kerala Land Conservancy Act 1957 to remove the encroachments on either side of 'Onjithodu' Canal, Ernakulam District.

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d) to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents 1 to 5 to initiate steps for the revival of 'Onjithodu' Canal in Ernakulam District.

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e) to issue a writ of mandamus or other appropriate writ, order or direction directing the 4^th respondent to constitute a Joint Committee to oversee the revival of 'Onjithodu' by including all stake holders including the petitioner herein.

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f) to issue a writ of mandamus or other appropriate writ, order or direction directing 1 to 5 respondents to initiate steps for the revival of 'Onjithodu' canal and deploy a special survey team to carry out survey of the land on either side of 'Onjithodu' which has been encroached upon.

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On 29.07.2021, we passed the following order:

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“Petitioner/Onjithodu Samrakshana Janakiya Samiti is a society registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955.

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Being aggrieved by the inaction on the part of the respondents in carrying out survey of the land on the sides of 'Onjithodu' canal in Ernakulam District to verify the encroachments as a pre-requisite for the revival project of the cananl, instant public interest litigation is filed.

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Prayers sought in this writ petition are as follows:

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c) to issue a writ of mandamus or other appropriate writ, order or direction directing the 4^th respondent to initiate steps under Kerala Land Conservancy Act, 1957 to remove the

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encroachments on either side of 'Onjithodu' Canal, Ernakulam District.

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d) to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents 1 to 5 to initiate steps for the revival of 'Onjithodu' Canal in Ernakulam District.

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On this day, Mr. Aravindakumar Babu, learned Senior Government Pleader, submitted that the land on either side of the 'Onjithodu' in Ernakulam district has been surveyed in the year 2008 and demarcation has also been made by the Tahsildar (L.R.), North Paravur and that survey report has been handed over to the respective panchayats namely, Kadungalloor Grama Panchayat/respondent No.6 and Alangad Grama Panchayat/respondent No.7, as the subject areas are vested with the abovesaid panchayats.

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Per contra, by inviting the attention of this court to the documents produced as Exhibits P1 to P13, Smt.S.Karthika, learned counsel for the petitioner submitted that there is inaction on the part of the respondents, in removing the encroachments and unscientific constructions, as opined by the Chief Engineer (Irrigation) in Ext.P2 report.

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The Chief Engineer (Irrigation) by Ext.P2 letter dated 17.4.2019 addressed to the Additional Chief Secretary, Water Resources Department (MI), Thiruvananthapuram, has reported that a detailed master plan is required to be

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made after evicting the encroachments. For brevity, english translation of Ext.P2 is reproduced hereunder:

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“No:W.2/R/38011/2018 Office of the Chief Engineer, Minor Irrigation and Administration Thiruvananthapuram Date-17-04-2019

From

Chief Engineer

Additional Chief Secretary, Water Resources Department (MI), Thiruvananthapuram

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Sir,

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Sub: Protection of Onjithodu- Reg.

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Ref: 1. Government Letter No: MI 1/86/2019 dated 02-04-2019 2. SE, M.I.C.C., Ernakulam Letter No: D-1-1100/2019 dated

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05-04-2019.

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Government Letter No: M.I. 1/272/2018-WRD dated

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08- 02-2019 4. Letter No: 1940/M (WRD)/ ORD/2018 Dated 09-10- 2018

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Your kind attention is invited into the references above. Onjithodu is a branch of Periyar starting from Elookkara in Kadungalloor and ending in Chirayam in Alangad Grama Panchayath, having a total length of 7.50 Kilometers. This canal, which had a width of more than 25 Meters and was used for water transport is now reduced to a more than Meters. The reason for the present pitiable condition of the canal is the unscientific construction of culverts on both the sides of the canal.

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Kadungalloor Grama Panchayath has evolved a plan for the revival of under Onjithodu and has earmarked an amount of Rs.50 Lakhs under Haritha Keralam Project for protection of water sources. But for this Durpose, a Forum is to be formed consisting of Kadungalloor Grama Panchayath, Alangad Grama Panchayath and the Onjithodu Protection Forum as 2/3rd of the canal is passing through Kadungalloor Grama Panchayath and Alangad Grama

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Panchayath.

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The revival of Onjithodu is only possible if the above Forum inspect the area with the co-operation of Revenue Department and evict the illegal encroachments and remove the unscientific constructions. It is submitted that the amount of Rs. 50 Lakhs earmarked by Kadungalloor Panchayath for the revival of water sources in Onjithodu under Haritha Keralam Project is insufficient and it is reported by Superintendent Engineer, MICC, Ernakulam, vide Ref (2) above, that this action shall be continued only with detailed inspection and after evicting the encroachments and thereafter by drafting a detailed master plan. Hence the above facts are submitted for the information of the Government.

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Yours faithfully,

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Learned counsel for the petitioner has also invited the attention of this court to Ext.P3 letter dated 21-5-2019 issued by the Under Secretary, Water Resources Department (M), Thiruvananthapuram addressed to both the President, Kadungalloor Grama Panchayat, Aluva and the Convenor, 'Onjithodu' Samrakshana Janakeeya Samithi, Aluva/writ petitioner, wherein it is stated that, pursuant to Ext.P2 report of the Chief Engineer (Irrigation) orders have been issued to take immediate action and to report the matter to the Government. English translation of Ext.P3 letter dated 21-5-2019 is reproduced below:

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“File No.MI 1/272/2018-WRD Government of Kerala

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Number M11/272/2018-WRD Water Resources Department (M), Thiruvananthapuram 21-05-2019,

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From

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Additional Chief Secretary

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Smt.Ratnamma Suresh, President, Kadungalloor Grama Panchayat,

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Alattu House, Muppathadam P O Aluva-683 110. Convenor, Onjithodu Samrakshana Janakeeya Samithi C/o Suhasam, Muppathadam P O Aluva 683 110.

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Sir,

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Sub: WRD – Protection of Onjithodu – Reg. Ref: 1) Complaint submitted by Onjithodu Samrakshana Janakeeya Samithi to the Secretary, Water Resources Department dated 4-10-2018.

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Application submitted by Smt.Ratnamma Suresh to the Minister Water Resources Department dated 5.2.2019.

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1. Letter No.W2/R/38011/2018 issued by Chief Engineer (Irrigation and Administration dated 17.4.2019.

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1. Government Letter under same reference number dated 29-4-2019.

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Attention is invited to the references. Chief Engineer (Irrigation and Administration) had submitted interim report vide Ref.(3) above. (Copy enclosed). It is hereby informed that Chief Engineer (Irrigation and Administration) is directed to take immediate action and to report the progress to the Government vide Ref (4) above.

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Yours faithfully, DEEPA V

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Under Secretary For Additional Chief Secretary”

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It is evident from Ext.P4 letter dated 24.6.2019 that the second respondent/ State of Kerala, represented by the Secretary to Government, Irrigation Department has directed the Chief Engineer (Irrigation) to prepare an estimate for the revival of the canal and actions needed to be taken for protection of 'Onjithodu'. Vide Ext.P9 dated 14.11.2019 Tahsildar (Land Records) has informed the Secretary, Kadungalloor, Alangad Panchayat that approximately an amount of Rs.2,00,257/- would be required for conducting the survey and for placing survey

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stones in the area in question. English translation of Ext.P9 reads as under: “D1-5533/95 Taluk Office, Paravur,

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Taluk Office, Paravur, Date: 14.11.2019

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From

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Tahsildar (Land Records) Paravur

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The Secretary Kadungalloor, Alangad Panchayat

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Sir,

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Sub: Revival of Onjithodu – Reg. Ref: 1) Letter No.A2-10000/2018 dated 28-9-2019 of Secretary, Kadungalloor Panchayat. 2) Resolution No.B(1) dated 20-7-2019 of Alangad Panchayat

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Your attention is invited to the references. You have requested to measure the Government Purambokku Land and to prepare sketch thereof as part of the eviction of the encroachments in the Government Purambokku Land in Onjithodu vide references (1) and (2) above.

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The total length of Onjithodu on both sides is 19.4 K.M. and service of a surveyor for 41 days is required to survey the same.

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Daily wage of a chainman-Rs.729/-

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2 Chainmen – 729 x 2 = Rs.1458/- x 41 days = Rs.59,778/-

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Expenses for cutting bushes and cleaning – For 3 persons 729 x 3 = 2187/=41 days x 2187/- = 89667/-

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Approximately, 250 survey stones are required for placing in the land. Placing of those stones shall be done under your supervision.

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Expenses for placing stones = 41 days x 630 = Rs.25,830/-

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Approximate price of survey stones = 100/- = 250 x 100 = Rs.25,000/Approximate total expenses for Survey works of Onjithodu as above – 59778 + 89667 + 25830 + 25000 = Rs.2,00,275/-

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The above information is submitted along with the estimate submitted by the Surveyor for further action.

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Yours faithfully, Sd/-

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Tahsildar (Land Records)”

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By Ext.P10 letter dated 14.2.2020, the Secretary of the Kadungalloor Grama Panchayat has informed the Tahsildar (Land Records) that an amount of Rs.2,00,275/- has been set apart for the work of conducting survey of 'Onjithodu' and requested to take further action.

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Mrs.S.Karthika, learned counsel for the petitioner submitted that despite the abovesaid communications issued, as the part of eviction of encroachment, on Government puramboke land in Kadungalloor and Alangad Grama Panchayats, no effective action has been taken. Therefore, petitioners were constrained to make Exts.P11 and P12 representations. But the respondents have not acted upon representations and hence this writ petition.

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From the above, it could be deduced that the Secretary, Kodungalloor Grama Panchayat/respondent No.6 and and Alangad Grama Panchayat/ respondent No.7 are responsible for removal of encroachments on either side of 'Onjithodu'.

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Though Mr.Aravindakumar Babu, learned Senior Government Pleader submitted that survey and demarcation have been completed in the year 2008 itself, and that survey records that have been handed over to the concerned Grama Panchayats, as the thodu in question is vested, and the removal of encroahments have to be done by the concerned Panchayats only, we are not inclined to accept that contention for the reason that, State Government cannot

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shirk its responsibility to preserve water bodies, solely on the ground of vesting.

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As soon as the survey and demarcation are completed, we are of the view that it is the duty of the State or the concerned authorities under the local laws to ensure removal of any encroachment on water bodies or government land.

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In similar matters, Hon'ble Supreme court has observed the authorities constituted for removal of encroachments and preservation of water bodies cannot run away from their primary responsibility on flimsy reasons. Therefore, we are of the prima facie view that Government have to act in accordance with the local laws, for removal of encroachments, on any water body or on government land.

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In the light of the above, we direct respondent Nos.2 to 4 to respond immediately, as to the role of the Government in the matter of removal of encroachments.

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In the light of what we have observed, respondents 2 to 4 are directed to file a statement or counter affidavit, as the case may be. Other respondents are also directed to file their counter affidavit or statement, if any.

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Learned Government Pleader takes notice for respondents 1 to 5. Issue notice to respondent Nos.6 and 7 respectively returnable within two weeks.

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Learned counsel for the petitioner submitted that she would take steps to delete respondent No.1/Chief Secretary, Government of Kerala from the array of parties.

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Post on 12.8.2021.”

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Tahsildar (L.R), North Paravur, the 5^th respondent, has filed a statement dated 31^st August, 2021, the relevant portions of which are extracted hereunder:

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“3. It is submitted that Onjithodu is a puramboke thodu which flows through the Villages Alangad and Kandungalloor in Paravur Taluk. As a part of Onjithodu rennovation programme a survey and demarcation of the boundaries of Onjithodu has been conducted in the year 2008 for evicting the encroachers. Refixation of an extent of 8.5 K.M of Onjithodu in Alangad and Kadungalloor Villages had been done in the year 2008 by this office. After fixing the boundaries in the presence of Panchayath Authorities, the process of peg marking was done and sketch was handed over to the Panchayath Authorities. True copy of the sektch dated 13.02.2008 prepared by Taluk Surveyor, Paravoor Taluk is produced herewith and marked as Annexure R5(a) .

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It is submitted that Alangad Grama Panchayath Authorities laid survey stones in the boundaries in time. But the authorities of Kadungalloor Panchayath had not initiated for doing so resulting in repetition of the survey process in Kadungalloor Village with huge loss of man power. The process was completed in the year 2010. The boundaries of Onjithodu from Elookkara padam to Karipuzha thodu were duly refixed and survey stones laid in the boundaries. As per Panchayath Raj Act section 218 all public water sources (other than rivers passing through more areas than the panchayath area) the beds and banks of rivers streams, irrigation & drainage channels, canals, lakes, back waters and water courses and all standing flowing water, springs, reservoirs, tanks, cisterns, fountains wells, Kappus, chals, stand pipes all are vested in Panchayath. Hence after the fixation of the boundaries in the presence of Grama Panchayath authorities, survey stones were fixed and the sketch handed over to the Panchayath Secretary with direction to protect the refixed boundaries and evict the encroachers therein. Copy of the letter dated 27.09.2010 addressed to Panchayath Secretary is produced herewith for perusal. True copy of the letter dated 27.09.2010 is produced herewith and marked

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as Annexure R5(b). True copy of the translated letter is produced herewith and marked as Annexure R5(b1) . An amount of 70,700/- rupees was spent 34 days of survey work.

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It is submitted that on application of Onjithodu Samrakshna Janakiya Samithi and based on the resolution passed by the Kadungallor and Alangad Panchayath, a letter was submitted to District Collector, Ernakulam and Deputy Director Survey, Ernakulam to appoint a survey team to refix the boundary of Onjithodu due to missing and dislocation of survey stone fixed earlier. A true copy of the letter dated 28.03.2019 addressed to Deputy Director Survey, Ernakulam is produced herewith and marked as Annexure R5(c). True copy of the translated letter dated 28.03.2019 is produced herewith and marked as Annexure R5(c1). Also submitted that true copy of the letter dated 04.03.2020 addressed to District Collector, Ernakulam is produced herewith and marked as Annexure R5(d). True copy of the translated letter dated 04.03.2020 is produced herewith and marked as Annexure R5(d1).

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It is submitted that a direction was given to the Taluk Surveyor to prepare a total estimate for the verification of the boundaries on the basis of the survey stones already laid down in the year 2010 and for the demarcation of the boundaries already surveyed in the year 2008 and 2010 now appearing with missing stones. Based on the report of the surveyor a detailed estimate was given to the Panchayath Secretary for further action. A true copy of the letter dated 14.04.2019 issued to the Panchayath Secretary is produced herewith and marked as Annexure R5(e). True copy of the translated letter dated 14.04.2019 is produced herewith and marked as Annexure R5(e1).

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It is submitted that the action plan for survey of Onjithodu flowing through Kadungalloor Grama Panchayath was approved by the Panchayath Committee held

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on 10.02.2020. On the basis of the estimate given, an amount of Rs 2,00, 275/- was set apart for this purpose. On the request of Panchayath Secretary for further action, reminder letter was submitted to Deputy Director Survey, Ernakulam, District Collector, Ernakulam and Deputy Collector (Disaster Management), Ernakulam for sanctioning Survey team. True copy of the letter dated 28.03.2019 addressed to District Collector, Ernakulam is produced herewith and marked as Annexure R5(f). True copy of the translated letter is produced herewith and marked as Annexure R5(f1). True copy of the letter dated 25.09.2019 addressed to the Deputy Collector (Disaster Management), Ernakulam with copy to Deputy Director Survey Ernakulam is produced herewith and marked Annexure R5(g) . True copy of the translated letter is produced herewith and marked as Annexure R5(g1) .

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It is submitted that a reply for this letter from Deputy Director Survey was received in this office with the direction that the above survey process shall be completed either by making use of the existing Taluk Surveyors of this office or by hiring private surveyors for this purpose. True copy of this letter 16.10.2020 is produced herewith and marked as Annexure R5(h). True copy of the translated letter is produced herewith and marked as Annexure R5(h1).

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Thereafter as per the judgment in WP(C) 9562/2021 Deputy Director of Survey has now sanctioned 3 surveyors as per the proceedings No. G5-86/2019 dated 29/07/2021 for completing the survey process of Onjithode. True copy of the proceedings No. G5-86/2019 dated 29/07/2021 is produced herewith and marked as Annexure R5(i) . True copy of the translated copy of the proceedings dated 29.07.2021 is produced herewith and marked as Annexure R5(i1) . Three surveyors have been appointed to this effect as per Proceedings No.D1-5533/95 dated 18.08.2021. True copy of the proceedings No. No.D1-5533/95 dated 18.08.2021 is produced herewith and marked as Annexure R5(j) . True copy of the

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translated copy of the proceedings dated 18.08.2021 is produced herewith and marked as Annexure R5(j1). And now the survey process has been initiated so far for demarcating puramboke evicting the encroachers therein. Meanwhile meeting was convened by the Tahsildar, Paravoor on 26.08.2021 for annalysing the plan of action and for rendering necessary direction to surveyors for initiating the process of survey and demarcation. The Tahsildar (LR), Deputy Tahsildars, Head Surveyor, Taluk Office Paravoor and the newly appointed surveyors were present. At the meeting the surveyors were entrusted with the task of commencing the process of survey at the earliest. It has also been decided to conduct the weekly meeting for the review of the progress of survey work.

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The entire allegations raised by the petitioner are false. None of the grounds raised in the writ petition are sustainable either in law or on facts. The petitioner is not entitled to any reliefs, much less though sought for in this writ petition, based on the grounds raised in the writ petition or on any other grounds.”

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Alangad Grama Panchayat, represented by its Secretary, Alangad, the 7^th respondent, has filed a counter affidavit dated 02.09.2021 stating that the Panchayat will take steps for removal of any illegal encroachments from boundaries of Onjithodu that may come within the Alangad Panchayat as and when the survey is complete and sketch is prepared. Relevant portions of the counter affidavit read thus:

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ending in Chirayam in Alangad Grama Panchayat having a length of 19.4 kilometers passing through Alangad and Kadungalloor Panchayat. Out of the 19.4 kilometers, major portion of the water body flows through Kadungalloor Panchayat and only a small portion of approximately 5.5 kilometers is flowing through the 7^th respondent panchayat.

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The 7^th respondent panchayat for the protection of the ‘Onjithodu’ and for the purpose of removing illegal encroachment had passed a resolution dated 20.07.2019 whereby the panchayat had decided to submit application before the 3^rd respondent and 5^th respondents to conduct survey and fix boundary of Onjithodu, flowing through Alangadu Panchayat and to assess the encroachments if any. Thereinafter, on the basis of the request submitted by the 6^th and 7^th respondents, the respondent had prepared an estimate for survey and re fixation of the boundaries. The 5^th respondent herein on 14.11.2019 has issued exhibit P9 letter to the 6^th and 7^th respondent Panchayat estimating the total expenses payable by the panchayats towards survey of boundaries of ‘Onjithodu’ at Rs.2,00,275/-.

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In pursuance of the same, the 6^th respondent has already deposited the estimated amount and a special team has been constituted for conducting survey of the Onjithodu and preparation of sketch. The 7^th respondent is prepared to provide all assistance towards the survey of Onjithodu. The panchayat

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shall take steps for removal of any illegal encroachments from boundaries of Onjithodu that may come within the Alangad Panchayat as and when the survey is complete and sketch is prepared. Hence, it is humbly prayed that this Court be pleased to accept the counter affidavit.”

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Kadungallur Grama Panchayat, represented by its Secretary, Aluva, the 6^th respondent, has filed a counter affidavit dated 11.09.2021 stating that the 4^th respondent has now appointed 3 surveyors for completing the survey of Onjithodu, that the survey has started and as soon as the survey report along with the sketch is submitted, necessary steps will be taken in accordance with law against illegal encroachments and constructions, if any, pointed out in the survey report. Relevant portions of the counter affidavit read thus:

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“3) The petitioner herein has filed this writ petition aggrieved by the inaction on the part of the 5^th respondent to carry out survey work of ‘Onjithodu’. Onjithodu is a branch of Periyar starting from Elookkara in Kadungaloor Grama Panchayat and ending in Chirayam in Alangad Grama Panchayat passing through Alangad and Kadungaloor Panchayats. The Kadungalloor Grama Panchayat is the custodian of the Onjithodu from Elookkara to Karipuzha bridge. It is a fact that the thodu has lost its natural flow due to encroachments and unscientific constructions on it. The water collected during monsoon gets stagnated and results in thick growth of weeds and collection of silt. Every year

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the panchayat spends a substantial amount for the cleaning of the thodu.

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The averments furnished in paragraphs 1 to 17 of the writ petition go with the real state of Onjithodu. Eviction of encroachment and removal of unscientific construction is a process that requires huge amount of funds, resources and manpower and the same can be carried out only after a proper survey is conducted in the proposed region. Even though the boundary of Onjithodu passing through the Kadungalloor Grama Panchayat was fixed in the year 2010, a detailed survey is necessary for the removal of encroachments that may have taken place after the survey. Hence the respondent herein has per Exhibit P8 resolution dated 14.11.2019 had resolved to submit application before the 3^rd respondent and 5^th respondents to conduct survey and fix boundary of Onjithodu, flowing through Kadungaloor Panchayat.

¶167

Thereafter, on the basis of the request submitted by the 6^th and 7^th respondent, the 5^th respondent had prepared an estimate for survey and refixation of the boundaries. The 5th respondent herein on 14.11.2019 has issued exhibit P9 letter to the 6^th and 7^th respondent Panchayats estimating the total expenses payable by the panchayats towards survey of boundaries of ‘Onjithodu’ at Rs.2,00,275/-. In pursuance of the same, this respondent had issued Exhibit P10 letter dated 14.02.2020 stating that the amount of Rs.2,00,275/- has been set apart for conducting survey of Onjithodu and thereby requested the respondent to take

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further action. However no action was taken in pursuance of the same. Aggrieved by the inaction in the part of the 5^th respondent, Exhibit P12 letter dated 21.10.2020 was further submitted by this respondent before the 5^th respondent seeking immediate action for carrying out survey on either sides of the Onjithodu.

¶171

The 4^th respondent herein pursuant to the Order of this Honouarble Court in above writ petition has now appointed 3 surveyors for completing the survey of Onjithodu. Now, the survey has started and as soon as the survey report along with the sketch is submitted, this respondent shall take necessary steps in accordance with law against illegal encroachments and constructions if any pointed out in the survey report. This respondent panchayat has rendered much co-operation in this regard and is prepared to provide all assistance towards the survey of Onjithodu. Hence, it is humbly prayed that this Honourable Court be pleased to accept the counter affidavit and dismiss the writ petition.”

¶172

The 5^th respondent has filed an additional statement dated 20.09.2021 along with Annexure (n) rough sketch marked in Google image of the proposed Onjithode location and stating that the survey work of the portions marked as A,B & C in the sketch can be completed by the end of September 2021 and D& E by October 15^th 2021 and that F portions can be completed with survey work by October 30^th , 2021.

¶173

Relevant portions of the additional statement read thus:

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“2. It is submitted that, in compliance with the directions in interim order dated 29.07.2021 in WP(C)No.9562/2021, this office has initiated to proceed with the survey for demarcating puramboke and evicting the encroachers therein. Notices were served to all the neighbouring land holders of survey Nos.176,177,178 & 209 in Kadungalloor Village of Paravur Taluk.

¶177

On request of the Onjithode Samrakshana Samithi at the meeting held on 27.08.2021 at Kadungalloor Grama Panchayath initial steps are being taken to proceed with refixing the boundaries of Onjithode from the formerly finished end towards periyar in the eastern side, Vekkada thode that ends in Elookara Bridge at the North, and the thode that ends in KWA Pump House at the south.

¶178

In the meeting held on 06.09.2021 at Kadungalloor Panchayath Office it was decided to commence the refixing process on 14.09.2021 and to issue notices to the neighbouring land owners with the help of ward members. Decision was taken also for fixing concrete pillars wherever necessary. Proper instruction were given to keep a Register for indicating the distance measured between the newly fixed stones & the permanent structures therein. Moreover preparatory steps have duly been taken for obtaining copies of Lithomap, FM Sketch and AB Plan from the Deputy Director of Survey Ernakulam and Central Survey office, Thiruvananthapuram. Notices are being issued to the interested parties in and around the locality. A true copy of the photo is produced herewith and marked as Annexure R5(k) . Google images of Onjithode are produced herewith and marked as Annexure R5(k1) Notice in Form 6 for survey manual is produced herewith and marked as Annexure R5(l). A true

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translated copy of the Notice in Form 6 for survey manual is produced herewith and marked as Annexure R5(l-1) . A true copy of the minutes of the meeting held on 06.09.2021 are produced herewith and marked as Annexure R5(m) . A true translated copy of the minutes of the meeting held on 06.09.2021 is produced herewith and marked as Annexure R5(m-1)

¶182

On verification of the ongoing survey process, it is found that the survey work of the entire 19 km long Onjithode stretched out in two villages can be completed by the end of October 2021. A rough sketch marked in Google image of the proposed Onjithode location is produced herewith for perusal and marked as Annexure (n). A true copy of the photos ongoing survey work by the Special Survey Team is produced herewith and marked as Annexure (o).

¶183

In the sketch, the portions denoted as A& B are those which are densely populated and not refixed previously. The portions marked as C,D & E are those refixed earlier, but need to be refixed again. Portion marked as F is densely populated area without earlier refixation and yet to be surveyed and refixed.

¶184

The survey work of the portions marked as A,B & C in the sketch can be completed by the end of September 2021 and D& E by October 15^th 2021. F portions can be completed with survey work by October 30^th 2021.”

¶185

Pursuant to the interim order passed by this Court on 23.09.2021, a memo has been filed by the learned Senior Government Pleader, producing the report filed by the Tahsildar (Land Records). The said report, which itself explanatory, reads thus:

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“D1-5533/95

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Taluk Office, Paravur, Date: 28.10.2021

¶190

REPORT ON WP(C) 9562/21 FILED BY ONJITHODE SAMRAKSHANA JANAKTYA SAMITHI

¶191

It is submitted that the survey process for refixing and demarcation of boundaries of Onjithode from the formerly finished end towards Periyar in the eastern side, Vekkada thode that ends in Elookara -Uliyannoor Bridge at the North, and the thode that ends in KWA Pump House at the south has been completed. The surveyed portions have duly been pegmarked and survey sketch of encroached lands has been prepared. But the sketch or the certificate of the demarcation has not been handed over the panchayath for want of stone fixing in these completed portions. The panchayath authorities have agreed to provide the survey stones, big in size which are essential for prolonged retention of the Thode". Ít may be noted that the survey work commenced again from already finished point has now been completed for about 1 1/2 KM length of Onjithode where it is seen wider. But it is a fact that the survey stones formerly fixed are all seen missing. At present survey work is being done with the help of canoes provided by the panchayath. The panchayath authorities are liable to provide ample survey stones to lay down simultaneously with the ensuing survey work.

¶192

It is submitted the the hazardous outcome of heavy rain and the related flood prone situation has made hindrance in the ongoing survey works nowadays. As a result it brings forth huge financial loss to the surveyors in hiring chainmen for survey work for such a long period. Moreover the existence of waterweds covering almost the major portion of the stream stand

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in the way of smooth and easy work for the surveyors.

¶196

It is submitted that the survey was not conducted earlier in main portions of Onjithode in Alangad village. Meanwhile, a joint inspection of the said portion was conducted along with the Alangad Grama Panchayath authorities and the Onjithode samrakshana samithi and it was seen that in some places the portions denoted as" Thode " in the sketch remain as plain lands and Thode " is not visible at all. As such, it takes time to refix the missing portions of the “Thode". Moreover it is seen that several portions of the survey numbers in Alangad village in which Onjithode is comprised, are now Patta lands and are possessed and enjoyed by private parties. It is a gigantic and time consuming process to find out, locate and verify those survey numbers and the lands as it requires verification and scrutiny of the Pattas issued earlier, the connected Patta files, sketch and the related records. It is also seen that the ending portion of about 1 KM of the “Thode” pertains to the survey numbers of Kandungalloor Village. The required time for the completion of the entire survey process can be anticipated only after the joint site inspection of the remaining portion of the proposed Onjithode along with the Kandungalloor Panchayat authorities.

¶197

In these circumstances, it is humbly requested that the Hon’ble court may be pleased to allow an extended time of 3 more months so as to complete the entire process of the renovation of Onjithode.

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Yours faithfully,

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Tahsildar (Land Records)”

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We are satisfied that adequate action has been initiated to identify and remove the encroachments and, therefore, writ petition can be disposed of recording the same, with appropriate directions.

¶203

We direct the respondents to survey, earmark and remove the encroachments as set out in the report.

¶204

To avoid any further encroachments, to ascertain as to whether boundaries of the 'Onjithodu Canal' flowing along the Kadungalloor and Alangad Grama Panchayat are earmarked and encroachments removed, registry is directed to post the writ petition after 4 months from today.

sd/-

S. MANIKUMAR,

CHIEF JUSTICE.

sd/-

SHAJI P. CHALY,

JUDGE.

Rvxx

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APPENDIX OF WP(C) 9562/2021

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PETITIONER'S EXHIBITS: EXHIBIT P1	TRUE COPY OF THE RELEVANT PAGES OF DISTRICT MANAGEMETN PLAN 2020-2021 KADUNGALLOOR GRAMA PANCHAYAT PUBLISHED BY 6TH RESPONDENT ALONG WITH ENGLISH TRANSLATION.
EXHIBIT P2	TRUE COPY OF THE REPORT DATED 17-04-2019 BY THE CHIEF ENGINEER (IRRIGATION) TO 2ND RESPONDENT ALONG WITH ENGLISH TRANSLATION.
EXHIBIT P3	TRUE COPY OF THE LETTER DATED 24-06-2019 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER ALONG WITH ENGLISH TRANSLATION.
EXHIBIT P4	TRUE COPY OF THE LETTER DATED 24-06-2019 ISSUED BY THE 2ND RESPONDENT TO THE CHIEF ENGINEER (IRRIGATION) ALONG WTTH ENGLISH TRANSLATION.
EXHIBIT P5	TRUE COPY OF THE REPRESENTATION DATED 04-07-2019 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ALONG WITH ENGLISH TRANSLATION.
EXHIBIT P6	TRUE COPY OF THE RESOLUTION DATED 20-07-2019 PASSED BY THE 7TH RESPONDENT ALONG WITH ENGLISH TRANSLATION
EXHIBIT P7	TRUE COPY OF THE RESOLUTION DATED 20-07-2019 PASSED BY THE 7TH RESPONDENT ALONG WITH ENGLISH TRANSLATION.
EXHIBIT P8	TRUE COPY OF THE RESOLUTION DATED 26-08-2019 PASSED BY THE 6TH RESPONDENT ALONG WITH ENGLISH TRANSLATION.
EXHIBIT P9	TRUE COPY OF THE LETTER DATED 14-11-2019 ADDRESSED TO THE RESPONDENT 6 AND 7 BY THE 5TH RESPONDENT ALONG WITH ENGLISH TRANSLATION
EXHIBIT P10	TRUE COPY OF THE LETTER DATED 14-02-2020 ISSUED BY THE 6TH RESPONDENT TO THE 5TH RESPONDENT ALONG WITH ENGLISH TRANSLATION.
EXHIBIT P11	TRUE COPY OF THE REPRESENTATION DATED 11-05-2020 SUBMITTED BY THE PETITIONER BEFORE THE 4TH AND 6TH RESPONDENTS ALONG WITH ENGLISH TRANSLATION.
EXHIBIT P12	TRUE COPY OF THE LETTER DATED 21-10-2020 ISSUED BY THE 6TH RESPONDENT TO THE 5TH RESPONDENT ALONG WITH ENGLISH TRANSLATION.
EXHIBIT P13	TRUE COPY OF THE JUDGMENT DATED 24-03-2021 IN W.P(C) NO. 5876/2021.

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RESPONDENTS' ANNEXURES:

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Annexure R5(a)	TRUE COPY OF THE SKETCH DATED 13.02.2008.
Annexure R5 (b)	TRUE COPY OF THE LETTER DATED 27.09.2010 ADDRESSED TO PANCHAYATH SECRETARY.
Annexure R5(b-1)	TRUE TRANSLATED COPY OF THE LETTER DATED 27.09.2010.
Annexure R5 (c)	TRUE COPY OF THE LETTER DATED 28.03.2019 ADDRESSED TO DEPUTY DIRECTOR SURVEY, ERNAKULAM.
Annexure R5 (c-1)	TRUE TRANSLATED COPY OF THE LETTER DATED 28.03.2019.
Annexure R5 (d)	TRUE COPY OF THE LETTER DATED 28.03.2019 ADDRESSED TO DISTRICT COLLECTOR, ERNAKULAM.
Annexure R5(d-1)	TRUE TRANSLATED COPY OF THE LETTER DATED 28.03.2019.
Annexure R5(e)	TRUE COPY OF THE LETTER DATED 14.04.2019 ISSUED TO THE PANCHAYATH SECRETARY.
Annexure R5 (E-1)	TRUE TRANSLATED COPY F THE LETTER DATED 14.04.2019.
Annexure R5(F)	TRUE COPY OF THE LETTER DATED 04.03.2020 ADDRESSED TO DISTRICT COLLECTOR, ERNAKULAM.
Annexure R5 (f-1)	TRUE TRANSLATED COPY OF THE DATED 04.03.2020.
Annexure R5(g)	TRUE LETTER DATED 25.09.2019 ADDRESSED TO THE DEPUTY COLLECTOR, (DISASTER MANAGEMENT) ERNAKULAM, WITH COPY TO DEPUTY DIRECTOR SURVEY ERNAKULAM.
Annexure R5 (g-1)	TRUE COPY OF THE LETTER DATED 25.09.2019.
Annexure R5 (h)	TRUE TRANSLATED COPY OF THE LETTER DATED 16.10.2020.
Annexure R5 (h-1)	TRUE TRANSLATED COPY OF THE LETTER DATED 16.10.2020.
Annexure R5(i)	TRUE COPY OF THE PROCEEDINGS NO. G5-86/2019 DATED 29.07.2021.
Annexure R5 (i-I),	TRUE TRANSLATED COPY OF THE PROCEEDINGS NO. G5- 86/2019 DATED 29/07/2021.
Annexure R5 (j)	TRUE COPY OF THE PROCEEDINGS NO. DI-5533/95 DATED 18.08.2021.
Annexure R5 (j-I)	TRUE TRANSLATED COPY OF THE PROCEEDINGS NO. DI- 5533/95 DATED 18.08.2021.
Annexure R5(k)	A TRUE COPY OF THE PHOTO OF ONJITHODE.
Annexure R5 (K-I)	A TRUE COPY OF THE GOOGLE IMAGES OF ONJITHODE.
Annexure R5(L)	TRUE COPY OF THE NOTICE IN FORM 6 FOR SURVEY MANUAL.

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Annexure R5 (i-I) TRUE TRANSLATED COPY OF THE NOTICE IN FORM 6 FOR SURVEY MANUAL. Annexure R5 (m) TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 06.09.2021. Annexure R5 (m-1) TRUE TRANSLATED COPY OF THE MINUTES OF THE MEETING HELD ON 06.09.2021. AnnexureR5 (n) TRUE COPY OF ROUGH SKETCH MARKED IN GOOGLE IAMGE OF THE PROPOSED ONJITHODE LOCATION AND TRANSLATED COPY. Annexure R5 (o) TRUE COPY OF THE PHOTOS OF ONGOING SURVEY WORK BY THE SPECIAL SURVEY TEAM.

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/True Copy/

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PS to Judge.

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Onjithodu Samrakshana Janakiya Samiti v. State of Kerala (Deleted)

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Onjithodu Samrakshana Janakiya Samiti v. State of Kerala (Deleted)

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