IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 OP.No. 13823 of 1998(U) ------------------------------------- PETITIONER(S): ------------------------ 1. PANANGADU CHOWKKEKADAVU CONNI UDUMA SANGHOM, PANANGAD P.O., REP.BY ITS PRESIDENT, N.K.MRUTHUNJAYAN, MUTHIKAYIL HOUSE, PANANGAD P.O., COCHIN 682 506. 2. K.A.RAJAN, EXECUTIVE COMMITTEE MEMBER, PANANGADU CHOWKKEKADAVU CONNI, UDUMA SANGHOM, PANANGADU P.O. COCHIN 682 506. BY ADVS.MR.M.P.KRISHNAN NAIR MR.N.RADHAKRISHNAN RESPONDENT(S): ---------------------------- 1. THE STATE OF KERALA, REP.BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF FISHERIES, ALAPPUZHA. 3. INSPECTOR OF FISHERIES, THEVARAVATTOM, POOCHAKKAL, CHERTHALA *4. SUPERINTENDENT OF SURVEY, OFFICE OF THE SURVEY SUPERINTENDENT, CHERTHALA, ALAPPUZHA DISTRICT. *5. R.RAMACHANDRAN NAIR, SENIOR TALUK SURVEYOR, OFFICE OF THE TALUK SURVEYOR, CHERTHALA. OP. NO.13823/1998 * THE NAME OF THE 5TH RESPONDENT IS CORRECTED AS N. RAMACHANDRAN , SENIOR TALUK SURVEYOR, OFFICE OF THE TALUK SURVEYOR, CHERTHALA. CORRECTED AS PER ORDER DT. 23.0.99 IN CMP.39376/99 . * R5 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DTD. 19.10.2000 IN CMP. NO.48402/2000. 6. DINAMONY, SURVEYOR, OFFICE OF THE TALUK SURVEYOR, CHERTHALA. 7. REGHUVARAN UPPUPADANNAYIOL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 8. PADMANABHAN ONAPARAMBIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 9. O.E.PRABAKARAN KATTITHARA NIKARATH, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPUZHA DISTRICT. 10. SANKARAN GOPI KOCHUKANNAMPRAMBU, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 11. CHAKRAPANI KATTUKULANGALTHARA NIKARATH AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 12. AYYAPPAN PADMANABHAN, ONAPARAMBIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 13. K.S.VIDYADHARAN, BIJU NIVAS, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA. 14. KANDAMBY MADHAVAN, KAVUNKAL KUMBEL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 15. VELAYUDHAN RAJU KAVUNKAL NIKARTHU, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 16. KRISHNAN RAGHAVAN, KIZHAKE NIKARTHU, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. OP. NO .13823/1998 17. K.R.SURENCRAN, KORAMBANMURI, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 18. K.V.SREEDHARAN, KUMBER NIKARTH, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 19. N.RAMANAN, KINATH KUMBEL AROOKUTTY VILLAGE , CHERTHALA TALUK, ALAPPUZHA DISTRICT. 20. VELU MOHANAN, KAVUNKAL NIKARH, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 21. D.PRASAD, MENAKUTTYCHIRA, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 22. V.K.VAMANAN, VADAKKEPAYATTUVELIYIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 23. P.E.GOPALAN, MENAKUTTYCHIRA AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 24. P.E.KRISHNANKUTTY, VADAKKEPAYATTUVELIYIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 25. P.E.SIVASANKARAN, CHOOLAKKAL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 26. M.SASI, PULIKKAL NIKARATH, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 27. M.MOHANDAS, PAYATTUVELIYIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 28. SREEDHARAN KRISHAKEMATTIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 29. NEELAMBARAN, KIZHAKKEMATTEL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. OP. NO.13823/1998 30. N.NARAYANAN, SURESH BHAVAN, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 31. K.E.DAMODHARAN, KINATHY KOMBEL, AROOKUTTY VILLAGE CHERTHALA TALUK, ALAPPUZHA DISTRICT. 32. K.K.JAYAPALAN, KIDASSERIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 33. A.BHASKARAN, BENNI NIVAS, AROOKUTTY VILLAGE, CHERTHALA TLAUK, ALAPPUZHA DISTRICT. 34. VAVA PADMANABHAN, KAVUNKAL KOOMBEL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 35. KANDAMBI KUMARAN, KAVUNKAL KOOMBEL, AROOKUTTY VILLAGE, CHERTHALA DISTRICT, ALAPPUZHA DISTRICT. *36. O.E.PRABHAKARAN, PULIKKAL AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. (DELETED) * DELETED AS PER ORDER DT. 10.7.2009 IN CMP. NO.25337/1998. 37. P.K.VELAYUDHAN, PULIKKAL , AROOKUTTY VILLAGE, CHERTHALA TLAUK, ALAPPUZHA DISTRICT. 38. M.P.DOMSN, KOOMBEL NIKARATH , AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 39. K.V.KARUNAKARAN, ALAPARAMBIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 40. K.V.ARAVINDAN, KADAVIN PARAMBIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 41. SHANKU BHUVANACHANDRAN, KUMBALAKKAL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 42. R.VASU, KUTTUKALTHAR, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 43. DINESHAN, S/O. LATE AYYAMMA, KOOMBER, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 44. SUDARSHAN, S/O. LATE AYYAMMA, KOOMBEL , AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. OP. NO.13823/1998 45. SADANANDHAN, S/O. LATE AYYAMMA, KOOMBEL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 46. SOMAN, S/O. LATE RAGHAVAN, ONAPARAMBU AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 47. PRASAD, S/O. LATE RAGHAVAN, ONAPARAMBU, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 48. KALASHAN, S/O. LATE RAGHAVAN ONAPARAMBU, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 49. SASI, S/O. LATE VELAYUDHAN, KIZHAKKAMATEL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 50. ASHOKAN, S/O. LATE VELAYUDHAN , KIZHAKKEMETTEL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 51. SOMAN, S/O. LATE P.E.VELAYUDHAN, CHOOLAKKAL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 52. PRAMOD, S/O. LATE P.K.DASAN, PAYATTUVELIYIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 53. SREEKUMAR, S/O. LATE P.K.DASAN, PAYATTUVELIYIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 54. CHANDRAN, S/O. LATE KRISHNAPPAN, KAVUNKAL KOOMBEL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 55. BABU, S/O. LATE KRISHNAPPAN, KAVUNKAL KOOMBEL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 56. SASI, S/O. LATE KRISHNAPPAN , KAVUNKAL KOOMBEL, AROOKUTTY VILLAGE,CHERTHALA TALUK, ALAPPUZHA DISTRICT. 57. SUSHAMA, W/O. LATE CHELLAPPAN, KAVUNKAL KOOMBEL, AROOKUTTY VILLAGE , CHERTHALA TALUK, ALAPPUZHA DISTRICT. OP NO.13823/1998 58. MADANAN, S/O. LATE SANKUNNI, UPPUPADANNAYIL, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 59. DINESHAN, S/O. LATE KUMBER NIKARTH, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 60. SUDHEER, S/O. LATE R.VELAYUDHAN, KOOTUNKALTHARA, AROOKUTTY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY ADV. BY MR.P.K.SURESH KUMAR FOR R7,8,10TO 24, 26 TO 28, 30 TO 33, 37, 39 TO 41 R 45, 48,50, 54 & 57 SMT.M.R.SREELATHA FOR R30 TO 33 GOVERNMENT PLEADER MR.T.K.VIPIN DAS FOR MR.K.THAVAMONY FOR MR.S.P.CHALY FOR R 38 TO 42 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 10/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NOS.24368/1998,28289/1998 , 4646/2001 IN OP 13823/1998 CLOSED 10/07/2009 SD/- V.K.MOHANAN, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE AGREEMENT DTD. 5.3.84 SIGNED BY THE PRESIDENT OF PANANGAD CHOWKKEKADAVU CONNI UDAMA SANGHOM ON BEHALF OF KAVUNGAL KIZHAKKE OONNIPAD. P2:- COPY OF THE TRANSFER CERTIFICATE OF SANKU BHUVANACHANDRAN (RESPONDENT NO.41) DT. 5.10.91 ISSUED BY DIRECTOR OF FISHERIES. P3:- COPY OF THE TRANSFER CERTIFICATE OF RAMAN VSU (RESPONDENT NO.42) DT. 1.10.91 ISSUED BY THE DIRECTOR OF FISHERIES. P4:- COPY OF THE REPRESENTATION DT. 10.8.94 SUBMITTED BY THE PETITIONER S TO THE 2ND RESPONDENT. P5:- COPY OF THE JUDGMENT IN WA. NO.189/96 PASSED BY THE DIVISION BENCH OF HONOURABLE HIGH COURT OF KERALA. P6:- COPY OF THE SKETCH, DT. 12.1.98 ISSUED BY TALUK SURVEYOR N.RAMACHANDRAN . P7:- COPY OF THE PROCEEDINGS NO.C.3701/94 DTD. 28.10.97 ISSUED BY THE 2ND RESPONDENT. P8:- COPY OF THE JUDGMENT DTD. 9.3.98 IN OP. NO.3557/98 PASSED BY THE HONOURABLE HIGH COURT OF KERALA. P9:- COPY OF THE AFFIDAVIT DTD. 14.7.98 FILED BY 2ND RESPONDENT BEFORE THE HONOURABLE HIGH COURT OF KERALA. P10:- COPY OF THE LETTER NO.C 241/98 DT. 24.6.98 ISSUED BY THE 2ND RESPONDENT. P11:- COPY OF THE LETTER NO.4/96, DTD. 10.12.97 ISSUED BY THE 3RD RESPONDENT. P12:- COPY OF THE ROUGH SKETCH OF THE CONNIS (STAKES) SHOWING ALL DETAILS. P13:- COPY OF THE ORDER NO.C.241/98 DTD. 21.7.98 ISSUED BY THE 2ND RESPONDENT. OP. NO.13823/1998 ANNEXURE A:- SKETCH SHOWING THE POSITION OF ALL THE CONNIS. ANNEXURE B:- SKETCH PREPARED BY THE SUPERINTENDENT OF SURVEY. RESPONDENT'S EXHIBITS R2(a):- COPY OF THE LR. NO.H4/1193/09 DTD. 12.6.09 OF ADDL. TAHSILDAR, CHERTHALA. R2(b):- SURVEY PLAN ISSUED BY THE TALUK SURVEYOR, CHERTHALA DTD. 11.6.09. R7(a):- COPY OF THE PLAN ATTACHED TO THE LICENCE GIVEN TO RESPONDENTS. TRUE COPY P.A. TO JUDGE TSS V.K.MOHANAN, J. --------------------------------------------- O.P.No. 13823 of 1998 U --------------------------------------------- Dated this the 10th day of July, 2009 J U D G M E N T The first petitioner is the Panangad- Chowkkakadavu Oonnie Udama Sangham represented by its President and the second petitioner is a member of the Executive Committee of the above Sangham. They are the residents of Panangad in Ernakulam District. They approached this Court praying inter alia to quash Ext.P13 and also to issue a writ of mandamus or any other appropriate writ, order or direction declaring that the action of the second respondent in getting the second survey report from the sixth respondent and issuing Ext.P13 is illegal. The third prayer is to issue a writ of mandamus directing the second respondent to act upon the direction of this Court in the judgment in W.A.No.189 of 1996 and the order in O.P.No.3557 of 1998. 2. The main grievance of the petitioners is against the issuance of Exts.P2 and P3 licences in OP NO.13823 of 1998 :-2-: favour of the contesting respondents. Initially, against Exts.P2 and P3, the petitioner herein preferred O.P.No.11615 of 1994 and the said O.P. was disposed of by this Court along with C.R.P.No.173 of 1995. Against Exts.P2 and P3, the first petitioner filed Ext.P4 representation. By the common judgment of this Court in both the above cases, the learned single Judge directed the Director of Fisheries, Thiruvananthapuram to dispose of Ext.P4. 3. Aggrieved by the order of the learned single Judge, the petitioners herein preferred W.A.No.189 of 1996. The above writ appeal was disposed of by Ext.P5 judgment. In Ext.P5 judgment dated 13.2.1996, this Court in paragraph 2 observed that “Shri.M.P.Krishnan Nair, learned counsel for the appellants submitted that he is not pressing for cancellation of Exts.P2 and P3. He also submitted that Exts.P2 and P3 may be implemented in accordance with law particularly in accordance with the rules framed for the Management and Control of Fisheries in Government Water Rules, OP NO.13823 of 1998 :-3-: 1974 regarding the distance.” The Division Bench in the above judgment further observed that the authorities would certainly implement Exts.P2 and P3 in accordance with the rules. 4. Thereafter, Ext.P7 order was issued against which the contesting respondents herein preferred O.P.No.941 of 1998 before this Court. According to learned counsel for the petitioners, in that O.P., the petitioners herein were not made parties and therefore, they got themselves impleaded in that writ petition. The petitioners herein also preferred O.P.No.3557 of 1998 and both the above writ petitions were disposed of by Ext.P8 judgment. 5. Pursuant to Ext.P8 judgment, the second respondent issued Ext.P13 order. According to counsel for the petitioner, the second respondent, in Ext.P13, ordered that the pattayam Eluga of the Kavungal Kizhakke Stake Line is measured from the survey stone of South-East corner of Kavungal Koombal Purayidom comprised in Sy.No.224/16,17 and 225/1 of the OP NO.13823 of 1998 :-4-: Arookutty Village. It is also stated that the measurement or erection of stake line is commenced from this point and first stake net No.3 of Sri.Reghuvaran of Uppu Padannayil, Arookutty is planted 218 metres away in north-east direction in the above survey. It is the above order challenged by the petitioners in this writ petition. 6. I have heard learned counsel appearing for the petitioners and the counsel for the contesting respondents and also the learned Government Pleader. 7. This writ petition is pending for the last 11 years. The grievance of the petitioner is that Ext.P13 is not correct as the same is not in terms of Exts.P2 and P3 licences. After inviting my attention to Ext.P6 sketch, it is pointed out that in Ext.P2, it is stated that the distance has to be measured from the survey stone that situated in the property lying in Sy.No.224/16 and therefore, the measurement has to be taken from point B in Ext.P6. 8. On the other hand, learned counsel for the contesting respondents and the learned Government OP NO.13823 of 1998 :-5-: Pleader submits that in Ext.P2, what stated is not with respect to any particular property lying in any one of the survey numbers, but the entire property, spread over the survey numbers mentioned therein, has to be taken as one for the purpose of measurement. Therefore, according to the learned counsel and the learned Government Pleader, in Ext.P13, the second respondent has made it clear in the following words. “...... the pattayam Eluga of the Kavungal Kizhakke Stake Line is measured from the survey stone of South-East corner of Kavungal Koombal Purayidom comprised in Sy.Nos.224/16,17 and 225/1 of Arookutty Village and ............” But the learned counsel for the petitioners submits that the above order of the second respondent is incorrect when it is considered on the strength of the description given in Exts.P2 and P3. The case of counsel for the petitioner is that in spite of the direction issued by this Court as per Ext.P8 judgment, the respondents have not complied with such direction. 9. When the matter was taken up for consideration OP NO.13823 of 1998 :-6-: on 17.12.2008, this Court directed the second respondent to make a report after the spot inspection. Accordingly, the second respondent has filed an affidavit dated 1.7.2009 wherein he had stated that he had personally visited the spot on 10.6.2009 along with the Taluk Surveyor and also stated that he had perused the revenue records pertaining to the properties and on such perusal of records, according to him, the properties were comprised in Sy.Nos. 224/16,224/17 and 225/1. Regarding these aspects, there is no dispute. He had further reported that the Kavungal Kizhakku stake line plan fixed from taking measurements from the point where line measuring 27.9 and 10.5 intersects and he had verified the present location of the stake nets and stated that there is no violation of the licence. It is also reported that during his inspection, it has been ascertained that shifting of the stake nets towards the shore would cause obstruction to the National Water Way and therefore, shifting of the line towards the shore is undesirable. OP NO.13823 of 1998 :-7-: 10. Against the above affidavit, the petitioners have filed a reply affidavit dated 9.7.2009 disputing the above factual report made by the second respondent. From the facts stated above, it can be seen that initially, the challenge of the petitioners was against the licence granted to the contesting respondents as per Exts.P2 and P3. Subsequently, as evident from the observation made by this Court in Ext.P5 judgment, the petitioners were given up such challenge and their prayers limited to the extent to see that the stake nets are located strictly in accordance with Exts.P2 and P3 licences. Now, the case of the petitioner is that unless there is shifting of the stake nets of the contesting respondents, the petitioners and their members will not get sufficient quantity of fish in their stake nets and therefore, the stake nets have to be shifted. The second respondent, as directed by this Court on 17.12.2008, conducted a spot inspection and reported that the stake nets are located strictly in accordance with Exts.P2 and P3 licence and shifting of the stake nets towards the shore will create OP NO.13823 of 1998 :-8-: obstruction to the National Water Way. 11. In the light of the above factual report made by the respondents who issued the licence, I am of the view that the respondents have complied with the direction issued by this Court in terms of Exts.P5 and P8 judgments. Therefore, there is no merit in this writ petition. Of course, the learned counsel for the petitioners challenged the report of the second respondent and also submitted that stake nets are located not strictly in accordance with Exts.P2 and P3 licences. The above submission invites disputed question of facts, which cannot be resolved in a proceedings under Article 226 of the Constitution of India. Therefore, if the petitioners are sticking on their contentions on the basis of the above disputed facts, they can very well approach the civil court for redressal of their grievances based upon such facts involved in the matter. OP NO.13823 of 1998 :-9-: Subject to the above observation, the Original Petition is dismissed. V.K.Mohanan, Judge MBS/ OP NO.13823 of 1998 :-10-: V.K.MOHANAN, J. --------------------------------------- O.P.NO. 13823 OF 1998 ------------------------------------------ J U D G M E N T DATED: 10-7-2009 OP NO.13823 of 1998 :-11-: