Dismissed

Sunil Kumar T.K@Sunil Karappadam v. District Collector, Thrissur

Kerala HC5 Apr 2023WP(C)/10189/2023

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition seeking mandamus to implement an alleged 1990 order by the District Collector prohibiting construction at Athirappally Waterfalls. The Court held that an inter-departmental official letter was not a formal, communicated order conferring a legal right, thereby refusing to entertain the petition.

What did the court decide?

The writ petition was dismissed, and no directions were issued

Sunil Kumar T.K@Sunil Karappadam Vs District… — Environment and Pollution | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&

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THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
WEDNESDAY, THE 5TH DAY OF APRIL 2023 / 15TH CHAITHRA, 1945

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WP(C) NO. 10189 OF 2023

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PETITIONER/S:

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SUNIL KUMAR T.K. @SUNIL KARAPPADAM
AGED 41 YEARS
THEKKOODAN HOUSE, KUTTICHIRA P.O., KARAPPADAM,
CHALAKUDY, THRISSUR DISTRICT., PIN - 680724
BY ADVS.
A.BALAGOPALAN
GAUTHAM KRISHNA E.J.
A.RAJAGOPALAN
M.N.MANMADAN
M.S.IMTHIYAZ AHAMMED
P.SEENA
VISWANATH SALISH
PRABHU MURALI KRISHNAN
A.R. AMAL

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RESPONDENT/S:

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1 DISTRICT COLLECTOR, THRISSUR CIVIL STATION, THRISSUR DISTRICT, PIN - 680003

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2 ATHIRAPPALLY GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY ATHIRAPPALLY GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, VETTILAPPARA P.O., THRISSUR DISTRICT, PIN - 680721

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3 TAHASILDAR, MUKUNDAPURAM TALUK OFFICE CHEMMANDA RD, IRINJALAKUDA NORTH, PIN - 680125

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4 GB HOTELS AND RESORTS, PVT. LTD., REPRESENTED BY ITS MANAGING DIRECTOR ATHIRAPALLY, VETTILAPARA P.O. THRISSUR DISTRICT, PIN - 679335

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5 AVENUE HOTELS, REPRESENTED BY ITS MANAGING DIRECTOR ATHIRAPALLY, VETTILAPARA P.O. THRISSUR DISTRICT, PIN – 679334

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BY ADV. K. P. HARISH, SR. GP.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 05.04.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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W. P. (C) No. 10189 of 2023

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J U D G M E N T

S. Manikumar, C. J.

Petitioner has sought for the following reliefs:-

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“(a) Issue a writ in the nature of mandamus or any other appropriate writ order or direction, directing the respondents to implement Exhibit P1 order;

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(b) Issue a writ in the nature of mandamus or any other appropriate writ order or direction, prohibiting further construction to the east of the viewpoint (between Sy. Nos. 1673 to 1675) obstructing the view of the waterfall from the PWD road.”

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Short facts leading to the filing of the writ petition are as

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under:-

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2.1. Petitioner has submitted that Ext. P1 order dated 15.06.1990

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was passed by the District Collector, Thrissur, the 1^st respondent, prohibiting constructions to the eastern side of the viewpoint constructed for the tourists to enjoy the sight of waterfalls. The said order was also passed in the light of Athirappilly Waterfalls being an ecologically sensitive area. The area prescribed in the said order was

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W. P. (C) No. 10189 of 2023

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later reported as properties comprising in Sy. Nos. 1673 to 1675 as per Ext. P3 letter dated 25.10.2007 issued by the Tahsildar, Mukundapuram, the 3^rd respondent. Large concrete constructions erected in the vicinity of the waterfalls would disrupt ecology and obstruct the view of waterfalls from the PWD road.

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2.2. Petitioner has further submitted that as known to the petitioner, the areas near Athirappilly waterfall was initially granted Pattayam to locals of Scheduled Caste and Schedule Tribes for the purpose of building residence and for agriculture. But later, the same was procured by wealthy establishments and individuals to commercialize the space and make unreasonable profit not heeding to any environmental concerns. The owners and occupants of the said properties have obtained permits by hook and crook in the head of residential purposes and have constructed buildings only to operate commercial establishments in their properties. The case of Athirapilly is intricately woven to the larger context of the Western Ghats.

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Today, when the matter came up for admission, Mr. Prabhu Murali Krishnan, learned counsel for the petitioner, submitted that the building permits issued by the Athirappally Grama Panchayat,

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W. P. (C) No. 10189 of 2023

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Thrissur, the 2^nd respondent, allowing constructions in an ecologically sensitive area, is patent illegality. Ext. P1 letter dated 15.06.1990 is in the right spirit to preserve the ecologically senistive area and the same must be upheld under any pretext.

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It is further submitted that alarming increase of constructions, both single and multi-storied around the immediate vicinity of the waterfall, disrupts the ecological balance and sight of the waterfall for the general public from PWD road.

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Ext. P1 letter dated 15.06.1990 relied on by the petitioner reads thus:-

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“K. K. Jayendran, Deputy Collector (LR) Collectorate.

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Trichur 3, dt. 15.06.1990

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D.O.B6-19460/90

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Dear Sankarankutty,

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Sub:- Tourism Development – Athirappally Waterfalls – cancellation of assignments or alienated cases and prohibition of constructions – reg.

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Ref: Your C2-17761/82 dt. 4-6-90

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After inspecting Athirappally water falls and surrounding areas, Collector has ordered to ask you to take the following steps

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W. P. (C) No. 10189 of 2023

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urgently:-

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To report the present land holding pattern according to assignment given, with sketch.

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To report the cases of transfer of land from harijans to non-harijans.

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Take action to cancel such assignments and resend the land back to Government.

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To issue an order restraining any construction on the eastern side of the point from where water fall is being seen by the public (a semi circle portion of the road covered by fence).

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The action taken may be intimated to Collector by a D. O. letter.

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Yours Sincerely, Sd/-

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To Sri. T. Sankarankutty Menon, Tahsildar, Mukundapuram, Irinjalakuda.”

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Going through the above, it is clear that Ext. P1 is a DemiOfficial letter addressed to a particular person. It is an inter departmental correspondence between two persons. It is not a decision,

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and hence, directions cannot be issued to implement the contents of an inter departmental correspondence.

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W. P. (C) No. 10189 of 2023

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It is trite law that writ petition cannot be entertained on the

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basis of internal correspondence. Reference can be made to few decisions:-

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(i) In Bachhittar Singh v. The State of Punjab reported in AIR

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1963 SC 395 , the Hon'ble Supreme Court held as follows:-

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“11. The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by clause (1) of Art. 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up, the State Government cannot, in our opinion, be regarded as bound by what was stated in the file.

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Thus, it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would

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W. P. (C) No. 10189 of 2023

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be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character.”

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(ii) The views expressed in Bachhittar Singh's case (cited supra) , have been followed in Laxminarayan R.Bhattad v. State of Maharashtra , reported in ( 2003) 5 SCC 413 , where the Hon'ble Supreme Court held,- a right created under an order of a statutory authority must be communicated to the person concerned, so as to confer an enforceable right.

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(iii) The said proposition of law has once again reaffirmed in

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Sethi Auto Service Station v. Delhi Development Authority , reported in (2009) 1 SCC 180 , where, the Hon'ble Apex Court held that internal notings and departmental communications between Government Agencies do not have the sanction of law to be an effective order, unless it culminates into an executable order, by communication to the person concerned, affecting his right or conferring any legal right. Reliance can also be made to the decision of the Hon'ble Supreme Court in Union of India and others v. Vartak

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W. P. (C) No. 10189 of 2023

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Labour Union (2), reported in (2011) 4 SCC 200 .

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In the light of the above discussion and decisions, we are not

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inclined to entertain the writ petition.

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Accordingly, writ petition is dismissed.

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Sd/S. MANIKUMAR CHIEF JUSTICE

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Sd/MURALI PURUSHOTHAMAN JUDGE

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///TRUE COPY/// P. A. TO JUDGE

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W. P. (C) No. 10189 of 2023

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APPENDIX OF WP(C) 10189/2023

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PETITIONER EXHIBITS

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EXHIBIT P1TRUE COPY OF THE ORDER OF THE 1ST
RESPONDENT DISTRICT COLLECTOR DATED
15.06.1990 BEARING NO. B-19460/90
EXHIBIT P2A PHOTOGRAPH OF THE BOARD DISPLAYING
EXHIBIT P1 ORDER OF THE 1ST RESPONDENT
DISTRICT COLLECTOR DATED 15.06.1990
BEARING NO. B-19460/90 NEAR THE PREVIOUS
VIEW POINT
EXHIBIT P3TRUE COPY OF THE LETTER ISSUED BY THE
TAHSILDAR, MUKUNDAPURAM TO THE
SECRETARY, ATHIRAPPILLY GRAMA PANCHAYATH
DATED 25.10.2007
EXHIBIT P4THE REPRESENTATION MADE BY THE
PETITIONER BEFORE THE 1ST RESPONDENT
DATED 10.06.2022

Sunil Kumar T.K@Sunil Karappadam v. District Collector, Thrissur

Case brief

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Sunil Kumar T.K@Sunil Karappadam v. District Collector, Thrissur

Case brief

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