IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 12044 of 2007(H) ---------------------------------------- PETITIONER(S): ------------------------ DAMODARAN, NALUTHENGUTHARA, VATTACHIRA, NADUVATHU NAGAR, AROOKUTTY VILLAGE, CHERTHALA TALUK. BY ADV. MR.M.S.UNNIKRISHNAN RESPONDENT(S): -------------------------- 1. DIRECTOR OF FISHERIES, DIRECTORATE OF FISHERIES, THIRUVANANTHAPURAM. 2. DEPUTY DIRECTOR OF FISHERIES, FISHERIES DEPUTY DIRECTOR'S OFFICE, ALAPPUZHA. 3. SUB INSPECTOR OF FISHERIES, THEVARVATTOM, CHERTHALA, ALAPPUZHA DISTRICT. 4. SANKU NARAYANAN, POTHENKADAVIL HOUSE, AROOR DESOM, AROOR VILLAGE, CHERTHALA TALUK. BY GOVT. PLEADER MR.V.TEKCHAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.12044/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE KUTHAKAPATTOM CERTIFICATE ISSUED TO THE PETITIONER DT. 13.2.92. P2:- COPY OF THE LICENCE ISSUED TO THE 4TH RESPONDENT DT. 18.10.77. P3:- COPY OF THE ROUGH SKETCH SHOWING THE LIE OF THE PROPERTIES OF THE PETITIONER AND SARASWATHY AMMA. P4:- COPY OF THE SHOWING THE LIE OF THE CHINESE NET AND THE SURROUNDING PROPERTIES. P5:- COPY OF THE JUDGMENT IN OS. 328/02 ON THE FILES OF THE MUNSIFF'S COURT, CHERTHALA DT. 17.1.04. P6:- COPY OF THE ORDER DT. 11.6.02 PASSEDBY 2ND RESPONDENT. P7:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN OP. NO.36721/03 DT. 25.7.06. P8:- COPY OF THE SKETCH PREPARED BY THE TAHSILDAR, CHERTHALA. P9:- COPY OF THE LETTER DT. 5.12.06 SENT BY THE 2ND RESPONDENT TO THE IST RESPONDENT. P10:- COPY OF THE ORDER DT. 29.12.06 ISSUED BY THE IST RESPONDENT. P11:- COPY OF THE COVERING LETTER SENT BY THE 2ND RESPONDENT TO THE PETITIONER. TRUE COPY P.S. TO JUDGE TSS P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 12044 OF 2007 ......................................................................... Dated this the 31st March, 2009 J U D G M E N T The petitioner has approached this Court challenging Ext.P10 order passed by the first respondent allegedly in compliance with the directions contained in Ext.P8 judgment, which according to the petitioner is 100% contrary to the directions contained therein and also without any regard to the actual grievance projected by the petitioner. 2. The case of the petitioner is that he is the owner of the property covered by Ext.P1 and the 4th respondent was granted licence by the second respondent to erect a 'Chinese net' in the Vembanat lake at the particular place as stipulated in Ext.P2. Despite the clear demarcation of the property and location where the net is to be erected, the 4th respondent unauthorisedly has caused it installed elsewhere and very near to the property of the petitioner, thus causing adverse consequences with regard to the rights and liberties of the petitioner, which made him to alert the appropriate authorities, in turn leading to Ext.P6 proceedings W.P.(C) No. 12044 OF 2007 2 dated 11.06.2002 issued by the second respondent directing the 4th respondent to shift the 'Chinese net' from the present location and to have it installed at the particular place covered by Ext.P2. 3. Met with the above situation, the 4th respondent approached the Addl. Munsiff's court, Cherthala by filing O.S.No. 328 of 2002 seeking for a permanent prohibitory injunction against the petitioner and also for such other incidental / consequential reliefs. It is seen from Ext.P5 that the trial court, as per the judgment and decree dated 17.01.2004 dismissed the suit as devoid of any merits. Thereafter, the 4th respondent approached this Court by filing W.P.(C) No.36721 of 2003, which led to Ext.P7 judgment. 4. As borne by Ext.P7 verdict, this Court observed that a fresh survey should be conducted in respect of the premises in question and to point out the particular property/location where the Chinese net could be installed by the 4th respondent (petitioner therein) and the first respondent was directed to consider the matter on the basis of such survey sketch to be obtained from the concerned Tahsildar, after giving an W.P.(C) No. 12044 OF 2007 3 opportunity of hearing to both the sides. 5. Pursuant to the directions given by this Court, a detailed measurement of the property/premises was made by the Taluk Surveyor of Cherthala Taluk, who prepared Ext.P5 sketch showing the exact location where the Chinese net could be installed by the 4th respondent . As borne by Ext.P7 judgment, the specific direction given by this Court was to have the property measured out and the necessary sketch was directed to be forwarded by the Tahsildar to the first respondent to consider the matter in the light of the contents of the said survey sketch and also after affording an opportunity of hearing to the parties concerned. However, after the preparation and submission of Ext.P8 sketch , it is seen that the second respondent had forwarded Ext. P9 report dated 05.12.2006 to the first respondent. The said report obviously shows that it was prepared and sent by the second respondent only on the basis of the information collected by him in the personal inspection and not with reference to Ext.P8 sketch prepared and submitted by the Taluk Surveyor . W.P.(C) No. 12044 OF 2007 4 6. As per the above report, particularly under paragraph No.2, the second respondent has expressed some doubts as to the actual location of the spot where the Chinese net was permitted to be erected and it was mentioned therein that appropriate decision could be taken on the basis of the report/verification to be made by the Revenue/Survey authorities. It was pursuant to the above proceedings that the first respondent passed Ext.P10 order, wherein reference has been made to Ext.P8 sketch, Ext.P9 report submitted by the second respondent and such other records (not specifically referred to), also referring to the versions/statements made by the contesting parties. As per Ext.P10 order impugned herein, the first respondent has held that it is not necessary to shift the Chinese net from the existing premises in view of some changed circumstances as referred to therein, which cannot be held as correct or sustainable since it is contrary to the specific directions given in Ext.P7 judgment. 7. As stated already, the main grievance of the petitioner is that the permission given to instal the Chinese net was at the W.P.(C) No. 12044 OF 2007 5 particular location as given in Ext.P2 and it was accordingly that a specific direction was given by this Court as per Ext.P7 to cause the property/premises to be measured out by the Tahsildar, simultaneously directing the first respondent to consider the matter in the light of such sketch to be forwarded by the Tahsildar. Ext.P8 sketch prepared by the competent authority clearly shows that the present location of the Chinese net is at a far different place than the location where it was actually permitted to be installed by Ext.P2. Even though the first respondent was directed to pass appropriate orders on the basis of the said sketch, he passed Ext.P10 order permitting the 4th respondent to have his net retained at the existing place, which is totally beyond his power, jurisdiction and competence and in flagrant violation of the specific directions given by this Court. 8. No counter affidavit has been filed by any of the respondents and the specific pleadings raised by the petitioner stand uncontroverted . It is more so in view of the factual position revealed from the documentary evidence, as contained in Ext.P8 sketch. W.P.(C) No. 12044 OF 2007 6 7. In the above circumstances, Ext.P10 order passed by the first respondent cannot be sustained any more, which hence is set aside. Respondents 1 to 3 are directed to ensure that the Chinese net erected by the 4th respondent is caused to be shifted from the existing place to the actual place where it has to be located as specified in Ext.P8. Necessary proceedings in this regard shall be pursued and finalised by the first respondent as expeditiously as possible and at any rate within a period of two months from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the judgment along with a copy of Ext.P8 sketch before the first respondent so as to enable him to pursue further steps. The Writ Petition is allowed as above. No costs. P.R. RAMACHANDRA MENON, JUDGE. lk