IMPORTANT POINT
The court held that the District Collector's determination of no encroachment invalidated the Single Judge's order for removal, allowing the Appellant to restart operations pending any legal challenge.

JUDGMENT :

Nitin Jamdar, C. J.

This Appeal is filed under Section 5 of the Kerala High Court Act, 1958, by Respondent No. 13 in W. P. (C) No. 509 of 2022 instituted by Respondent Nos. 1 and 2 herein, challenging the order passed by the learned Single Judge dated 1 August 2022. The learned Single Judge has directed that the encroachment by the Appellant should be removed immediately. This order is the subject matter of challenge in this Appeal.

2. Heard Mr. Lakshmi Narayan, learned Senior Advocate appearing for the Appellant, Mr. Peeyus A. Kottam, learned counsel for Respondent Nos. 1 and 2, Mr. M. R. Sasi, learned counsel for the Respondent Panchayat and Mr. T. P. Sajan, learned Special Government Pleader appearing for the State.

3. Though various orders have been passed and documents placed on record, the issue lies in a narrow compass.

4. The Petitioners - Respondent Nos. 1 and 2 herein claim to be residents of the Grama Panchayat, where the Appellant was conducting a plywood factory and door manufacturing unit. Petitioners stated that the factory is close to their residential houses and causing sound and water pollution. The writ petition was filed primarily on the grounds that the Appellant / Respondent No. 13 does not possess the necessary legal permission to conduct the factory and the manufacturing unit, and its activities are on the land, an encroachment in river Puramboke.Petitioners filed the writ petition for the following prayers:-

“a) Call for the entire records leading to Ext-P8 order and quash the same by issuing a writ of certiorari or any other appropriate writ order or direction;

b) Issue a writ of mandamus or any other appropriate writ, order or direction and thereby command the 8^th respondent to stop the functioning of the factory of 13^th respondent till he complies with the condition imposed by 10^th respondent in Ext-P6 order;

c) Issue a writ of mandamus or any other appropriate writ, order or direction and thereby command the 8^th respondent to initiate proceedings under the Kerala Land Conservancy Act against the 13^th respondent as directed by this Hon'ble Court in Ext-P5 judgment"."

5. The Appellant filed a counter affidavit in the writ petition and denied the allegations. The Appellant contended that the Petitioners' residential house is far away, and there is no pollution or annoyance to the Petitioners. It was stated that necessary licences from the Registration Department and Department of Factories and Boilers had been obtained to conduct the unit. It was submitted that there is no unauthorized construction or illegal construction, and there is neither any encroachment on the property.

6. A statement was filed on behalf of the State that a forest licence has been issued in favour of the Appellant to run a wood-based industrial unit and that the Appellant had applied with a request to enhance the machine capacity. The State took the stand that none of the contentions made by the Petitioners against the Appellant are correct, and all permissions are in place.

7. By a short order, the learned Single Judge directed that the encroachment be demolished. The learned Single Judge referred to Ext. P5 judgment in the earlier round of litigation wherein it was directed that if there is encroachment in river Puramboke by the Appellant, necessary action be taken. The learned Single Judge referred to the decision of the Panchayat and noted that the Appellant failed to appear and proceeded to issue the directions for encroachment. The impugned order has not dealt with various aspects sought to be urged before us. There is also no reference to the aspect of permissions, etc.

8. In the Appeal, orders have been passed from time to time on 24 August 2022, 2 September 2022, 5 December 2022, 14 December 2022 and 2 April 2024. These detailed orders deal with various issues not found in the impugned order passed by the learned Single Judge.

9. Primarily, the issue revolves around the allegations levelled by the Petitioners/neighbours