RATHEESH Vs. STATE OF KERALA

JUDGEMENT

(1.) Nediyathuruthu and Vettilathuruthu, once two sleepy islands which lay nestled in the Vembanad Lake which is the longest lake in India and a backwater in the State of Kerala, are at the centre of the controversy which we are called upon to resolve in these batch of seven Writ Petitions. There are five Writ Petitions touching the Nediyathuruthu island. The others relate to the Vettilathuruthu island. Is there violation of the Coastal Regulation Zone Notifications issued in the year 1991 and 2011, and is there encroachment on puramboke land and kayal, are the questions which substantially arise for our consideration.

(2.) This Writ Petition has been filed by ten petitioners. The 8th respondent is the Kapico Kerala Resorts (P) Ltd. and Shri Roy M. Mathew as the party respondent (hereinafter referred to as the company). The ninth respondent is a Director. This is a Writ Petition filed on the basis that there were "Oonnipads" (stake nets) located near the Nediyathuruthu island. Essentially, the petitioners claim under one Karumban Krishnan who is stated to be a traditional fisherman and who had obtained stake nets 1, 2 and 3 under patta No.947 from the Fisheries Department, Government of Kerala about seventy years back. It is their case that the Nediyathuruthu island was agricultural land cultivated with paddy field in water-locked area and the sand bund. In some portions, it is alleged that prawn cultivation was also being carried out. There were only few families in the entire island. It is the petitioners' case that the company has no permit to reclaim paddy field. It is alleged that respondents 8 and 9 proceeded to construct resorts in the island. Ext.P5 is the report of the Assistant Engineer of Thykkattussery Grama Panchayat recommending building permit subject to the condition that the proposed construction must be upto or beyond the existing building, otherwise, CRZ will be applicable. There is a case of encroachment into the Vembanad Kayal (Lake) by respondents 8 and 9. There is reference to O.S.No.556/08 filed by owners of stake nets 9, 10 and 11 before the Munsiff Court, Cherthala. The Suit was dismissed on 13.12.2010. Ext.P6 was a commission report dated 14.12.2010 filed on 03.01.2010. The plaintiff carried the matter in appeal and injunction order was granted vide Ext.P7. According to the petitioners, the stake nets belong to the petitioners, they are closer to the island and the illegal reclamation has damaged the three nets. Ext.P8 is a complaint to the District Collector. Exts.P9 to P11 are further complaints. It is alleged that the total income from the stakes was Rs. .4,20,000/= per year out of which Rs. .1,20,000/= will go towards expenditure. There is a loss of income of around Rs. .3,00,000/=. Ext.P12 purports to be the photographs of the island in 2011 before the construction encroaching the lake. Ext.P13 purports to be photograph of concrete pipes filled by respondents 8 and 9 around the island encroaching the Vembanad Kayal (lake) for constructing the resorts. Ext.P14 is produced to show reclamation of the lake around the island showing JCB. It is produced to show the alleged encroachment (alleged reclamation of the integrated portion). Ext.P15 is further photograph produced to show the construction of the resort in the island and it is alleged that it is done encroaching the Vembanad Lake. In Ext.P16 photograph it is alleged further that it is in the area where the stake nets of the petitioners were situated. Ext.P17 is also photograph showing the stake net No.4 and the present platform. Inaction is alleged against respondents 1 to 7.

(3.) The fourth respondent Secretary of the Panchayat has filed Counter Affidavit. Therein, it is, inter alia, stated that on 02.8.1996 a NOC has been granted to one Ratna Eswaran and Babu George for the purpose of building construction in certain survey numbers. It is also stated that the NOC was transferred along with the land to the 8th respondent and upon an application made by the grantee, the NOC has been transferred to the 8th respondent. Since the Building Rules were made applicable from 06.6.2007 onwards, the 8th respondent made an application on 23.7.2007 for construction of a building having an area of 13351.42 sq. metres in 1123 cents of land. Building Permit dated 10.10.2007 was issued to the 8th respondent company with conditions. On 14.8.2010, on application, the permit was extended by three years from 10.10.2010. The allegation that the Panchayat permitted the 8th respondent to construct building in such a manner that the petitioners' stake nets would be destroyed, is denied as incorrect, inte alia.