The State has a constitutional duty to protect natural resources, and encroachments on public land must be removed to ensure environmental protection and community rights.

JUDGMENT

Dated this the 9th day of June, 2020

S.Manikumar, CJ.

Instant public interest writ petition has been filed assailing inaction on the part of respondents 1 to 4, i.e. State of Kerala, represented by the Chief Secretary to Government; Corporation of Cochin, represented by the Secretary; District Collector, Ernakulam; and Tahsildar, Ernakulam, in taking adequate steps to prevent illegal encroachments and reducing the width of Konthuruthy river at the behest of Bhoorahitha Samrakshana Samithi, Perumanoor, Kochi, represented by its Secretary, (respondent No.5). The reliefs sought for in the writ petition are as under:

“i) Issue a writ of mandamus or other appropriate writ, order or direction, directing respondents 1 to 3 to restore Konthuruthy River in its entirety to the width of 48 metres as admitted in Exhibit-P13 statement filed by the 3rd respondent in W.P.(C) No.13927/2012 dated 4.3.2013 in a time bound manner.

ii) Issue a writ of mandamus or other appropriate writ, order or direction, directing respondents 1 to 3 to evict all encroachments carried out over the Konthuruthy River.

iii) Issue a writ in the nature of a declaration, declaring that no part of the Konthuruthy River or its puramboke can be assigned to any person.

iv) Issue a writ in the nature of a declaration, declaring that if any part of the Konthuruthy river or its puramboke is already assigned, then such assignment is void abinitio.

v) Issue a writ of mandamus or other appropriate writ, order or direction directing respondents 1 to 3 to demolish the road that has been constructed over the Konthuruthy river in violation of the statutory norms and reconstruct the same after restoring the river.”

2. Short facts leading to the filing of the writ petition are that, petitioner herein is a public spirited individual, who always stood up for the cause of public. He is a resident of Thevara-Konthuruthy region, within the limits of Corporation of Kochi. He had taken up the cause of Konthuruthy river before several authorities and filed W.P.(C) No.13927 of 2012 before this Court, which was later transferred to the National Green Tribunal, Chennai. Thereafter, the said writ petition was withdrawn with liberty to initiate fresh proceedings.

3. Konthuruthy river is situated in Sy. No.1006 of Elamkulam village, Kanayannur taluk, Ernakulam district. The river connects Thevara canal to the backwaters of Nettoor and was originally used as a major navigational channel under Section 2 (26) of the Cochin Public Canals and Back Water Navigation Rules , 1114. According to the petitioner, due to the widespread encroachments made by the members of the 5th respondent, Konthuruthy river is facing a slow death. As per survey records, the river originally had a width of 48 metres, but now has been reduced to a width of 3 metres. The starting point of the said encroachments commenced with the destruction of an over bridge across the river about 26 years ago. The bridge was destroyed and a road was constructed over the river without leaving access for flow of water through the river.

4. It is trite law that encroachment over public property by whomsoever cannot be regularised and the same ought to be removed at the earliest. In this regard, he had submitted Exhibits-P1 to P5 representations before the above specified authorities requesting to take action for removal of encroachments from the river. Finally, he received Exhibit-P8 letter dated 18.11.2011 issued on behalf of the Tahsildar, Ernakulam, respondent No.4, stating that the Village Officer concerned was directed to prepare a sketch regard