Vijayan vs State Of Kerala
2021 Latest Caselaw 16182 Ker

W.A.No.482 of 2021                      1



                     IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                 THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                        &

                     THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

            WEDNESDAY, THE 4TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943

                                WA NO. 482 OF 2021

         AGAINST THE JUDGMENT IN WP(C) 32062/2019 OF HIGH COURT OF KERALA

APPELLANT/PETITIONER IN W.P.:

              VIJAYAN
              AGED 62 YEARS
              S/O.RAMANKUTTY, KOKKALLIL HOUSE, UROOB NAGAR, PONNANI, MALAPPURAM-
              679577.
              BY ADVS.
              P.B.KRISHNAN
              SRI.SABU GEORGE
              SRI.P.B.SUBRAMANYAN
              SRI.MANU VYASAN PETER

RESPONDENTS/RESPONDENTS IN W.P.:

     1        STATE OF KERALA
              REPRESENTED BY ITS SECRETARY, AGRICULTURE DEPARTMENT, SECRETARIAT,
              THIRUVANANTHAPURAM-1.
     2        DISTRICT COLLECTOR,
              CIVIL STATION ROAD, UPHILL, MALAPPURAM-676505.
     3        THE REVENUE DIVISIONAL OFFICER,
              TIRUR-THRIKANDIYOOR ROAD, TIRUR, MALAPPURAM-676101.
     4        THE TAHASILDAR,
              TALUK OFFICE, OLD NH 17, PONNANI, MALAPPURAM-679577.
     5        THE ASST.DIRECTOR OF AGRICULTURAL,
              THAVANUR, EDAPPAL P.O., MALAPPURAM-679576.
     6        CONSTRUCTION ENGINEER,
              OFFICE OF THE CONSTRUCTION ENGINEER, THE KERALA LAND DEVELOPMENT
              CORPORATION LIMITED, THRISSUR-680020.

     7        PUTHU KOLE COMMITTEE,
              REPRESENTED BY ITS SECRETARY SRI.MOHANAN, S/O.VELU, AGED ABOUT 50
              YEARS, MANJAKKATTU HOUSE, KOLOLAMB, EDAPPAL, MALAPPURAM-679576.
              SRI.TEK CHAND, SENIOR GOVERNMENT PLEADER FOR R1 TO R6
              SRI.C.M.MOHAMMED IQUBAL FOR R7

      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.08.2021, THE COURT ON

THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.482 of 2021                      2




                                  JUDGMENT

Dated this the 4th day of August, 2021

SHAJI P.CHALY,J .

This appeal is preferred by the petitioner in W.P.(C) No.32062 of 2019 and

R.P.No.95 of 2021 challenging the judgment and order of the learned Single

Judge dated 8.1.2021 and 8.2.2021. The writ petition was in fact allowed by the

learned Single Judge by setting aside Exhibit P12 order passed by the Revenue

Divisional Officer dated 11.10.2019 rejecting the request made by the appellant

for allowing vehicle facility through Ponnani - Thrissur Kole Region bund,

however declared that the appellant will be entitled only to ply three wheelers

with less than 3 tonnes total weight through the bund, for transportation of

agricultural produces and implements. According to the appellant the rider added

by the learned Single Judge in the Judgment restricting the user of the bund by

granting permission to use only three wheelers with less than 3 tonnes total

weight is illegal and bad , since there is no object sought to be achieved by

making the restriction , especially due to the fact that in Exhibit P9

communication dated 24-06-2019 the construction engineer of the Land

Development Corporation Ltd, had made it clear that vehicles with lesser weight

can be considered for plying through the bund road.

2. The case projected by the appellant was that as per Exhibit P4 information

given by the State Public Information Officer, Kerala Land Development

Corporation Limited, the bund was constructed using Government funds for the

purposes of paddy fields, which is a public property of the Government;that the

bund is a new one and it has sinked at several places and therefore, if heavy

vehicles are allowed to be plied, the bund may sink; however, there is no

objection in transporting small agricultural implements and products; and it was

further informed to the petitioner that the right of passage through the bund is

not restricted to anyone and no one is given the right to protect the bund in

writing. Apart from the fact that the right to protect the bund is that of the

Government, it is also clarified in the order under the Right to Information Act

that the bund is constructed in a manner useful to the farmers by expanding the

existing small bunds.

3. The predominant contention advanced by the appellant was that

respondent No.6 - Construction Engineer, Kerala Land Development Corporation,

Thrissur, recommended for permitting usage of small vehicles with a load having

a total weight upto 3 tonnes. However, while setting aside Exhibit P12 order

passed by the Revenue Divisional Officer, a declaration was made by the Learned

Single Judge that the appellant would be entitled for plying only 3 wheelers with

less than 3 tonnes total weight through the bund. Therefore, according to the

appellant, the stipulation in the judgment of the learned Single Judge that 3

wheelers alone can be used by the appellant for transporting agricultural

produces and implements causes grave miscarriage of justice to the appellant. It

is also the case of the appellant that the 3 wheeler vehicles have only a capacity

to carry about 1000 Kgs. and at present there are so many 4 wheeler vehicles in

which the appellant could carry the goods upto about 2 to 2.5 tonnes. It was

under the said circumstances the appellant filed a review petition before the

learned Single Judge seeking to review and modify the judgment, however, the

review petition was dismissed holding that there is no error apparent on the face

of the record. Therefore, it was contended that the findings rendered by the

learned Single Judge to the extent discussed above is illegal, erroneous and

unsustainable and further that the learned Single Judge ought to have allowed

the appellant to use 4 wheeler vehicles without any categorization of goods.

4. In fact the judgment was rendered by the learned Single Judge taking into

account the statement filed by 3rd respondent -Revenue Divisional Officer,

Thrissur, reaffirming the stand adopted in Exhibit P12 impugned order, as also

the counter affidavit filed by the 7 th respondent viz., Puthu Kole Committee,

represented by its Secretary. Contentions raised by the 7 th respondent would be

worthwhile to be extracted in order to arrive at a logical conclusion in the issues

raised by the appellant in the appeal especially in view of the finding recorded by

the construction engineer of the land development corporation that the

responsibility of protecting the bund after the construction is with the paddy field

committee ie the 7th respondent, and they are as follows:

"4) It is submitted that the allegation in para 2 of the writ petition that the bund is now under my control is not correct. It is situated near to Vallyad - Vaidyar Moola Tar road and there is a Panchayath road to reach the Kole land, which was constructed by relinquishing land by the cultivators in the Kole land. About 35 Acres of land in Amayam Hill in which the petitioner has about 12 Acres of land. The balance area in the hill belongs to other different persons. There is no human inhabitation in this Hill area at present. The intention of the petitioner is to transform the hill area to a residential area to develop his real estate business. Therefore the petitioner is claiming motorable access to his property through the bund. Now the hill area is totally used for agricultural cultivation. If it is transformed as a residential area, the entire cultivation in the dry land as well as in the kole land would be destroyed. Therefore, the claim of the petitioner to use the bund as a road to his property is not workable.

5) The allegation in para 3 of the writ petition that after renovation, the bund is fit for transportation of agricultural produces and materials in light goods vehicles is not correct. The bund is not meant for vehicular traffic. Moreover, there is no direct access to the bund from the public road. Therefore, the Kole Committee erected iron rods in the bund to prevent vehicular traffic through the bund to the mainland. The property situated in the starting point of the bund belongs to the members of Puthu Kole Committee. They would not permit anybody to take vehicles through their land. The writ petition is silent regarding this fact.

6) The 5th respondent submitted Ext. P1 report before the Principal

Agricultural Officer without considering the nature of the bund and nature of the soil wherein the bund is constructed. Moreover the 5 th respondent submitted the report without considering the fact that there is another bund from the mainland to the Amayam Hill through the Kole land of MadaiKole Committee. The petitioner can reach his property through this bund also during the rainy season. In the dry season, the petitioner can reach the property through the Kole land. Ext. P2 report is filed by the Principal Agricultural Officer, Malappuram, on the basis of Ext. P1 report submitted by the 5th respondent. Even though the petitioner has produced Ext. P2 report, he has not impleaded the Principal Agricultural Officer, Malappuram to explain the circumstances of filing Ext. P2 report. Moreover, Ext. P2 report says that the permission to take small vehicles through the bund should only be with the proper measures to protect the bund.

7) It is submitted that Ext. P3 reply of the 6 th respondent clearly states that the soil in this area could not fit for vehicular traffic. It is also stated in Ext. P2 reply that since the soil is very loose and could not fit for vehicular traffic, the bund is destroyed in a certain area. The statement in Ext. P4 that the bund was constructed using public funds is not correct. The bund was there for a long time and was originally constructed by the cultivators for their cultivation. Subsequently the 6th respondent renovated and strengthened the same using public funds. They only stated that the material used for agricultural activities only could be taken through the bund.

8) The statement in para 9 of the writ petition that the 6 th respondent has submitted a report to the District Collector stating that Puthu Kole Committee is objecting to taking of heavy vehicles through the bund apprehending damage of bund and small vehicles can be permitted is not correct. On a perusal of Ext. P5 report it could see that the bund has been damaged several times and taking of vehicles through the same will adversely affect the strength of the

bund. Ext. P6 report also says that taking vehicles through the bund would cause its damage.

9)The allegation in para 11 of the writ petition that the 6 th respondent is recommending usage of small vehicles through the bund is not correct. The 6 th respondent has no right to make such a recommendation. The Ponnani Tahasildar also reported that the bund ending in the property belongs to one Kakkolli Vijayan. There is no road from there. Therefore, there is no question of using the bund as a public road. Ext. P9 also states that usage of vehicles above 3 Tonnes would cause damage to the bund. In the light of the above report, the RDO heard the petitioner and others including me and passed Ext. P12 order rejecting the request of the petitioner. On a perusal of Ext. P12 order, it is clear that the stand taken by the RDO is correct and it is not liable to be interfered. It is issued to protect agricultural activities.

10) It is submitted that the petitioner has a further area of land near to this hill and he tried to convert the same as dry land. At the intervention of the revenue officers, the illegal conversion was prevented. The intention of the petitioner is to make use of the hilly area in between the paddy land for residential purposes as a part of his real estate business. If a road access has been granted to the hill area through the Kole land, the petitioner could use it as a commercial as well as residential land. The conversion of the land through commercial land would adversely affect the cultivation in the entire area. Therefore the prayer of the petitioner is not liable to be considered. The writ petition is liable to be dismissed with cost."

5. We have Heard learned counsel for appellant Sri.M.V.Sreejesh, learned

Senior Government Pleader Sri.Tek Chand for the State and its officials and Sri

C.M. Mohammed Iquabal for the 7th respondent, and perused the pleadings and

documents on record.

6. The issue raised by the appellant in the appeal is lying in a very narrow

compass as to whether the appellant can be permitted to take 4 wheeler small

vehicles through the bund in question. The learned Single Judge after taking into

account the issues raised by the appellant, the State as well as the 7 th

respondent, has arrived at the conclusion that the stand adopted by the Revenue

Divisional Officer that not to permit the appellant to take vehicles through the

bund road was not correct. It was also found that the bund is admittedly a

Government property and availability of alternate pathway or road by itself

cannot be a ground to deny the right of the appellant to use the Government

owned bund. It was also found that the appellant was engaged in agricultural

activities in a large extent of land and the appellant was seeking only access to

his property for carrying out his agricultural as well as animal husbandry

activities.

7. Whatever that be, the learned Single Judge while considering the right of

the appellant to have vehicular access to his property had also considered the

public interest involved in the matter. In the process, Exhibit P1 communication

issued by the Agricultural Director was taken into account wherein it was noted

that permission can be granted only to use small vehicles for the purpose of

agricultural activities. As per Exhibit P2 communication, Deputy Director of

Agriculture, also found that only small vehicles can be permitted through the

bund. As per Exhibit p4 information, the Kerala Land Development Corporation

Limited has also stated that heavy vehicles cannot be permitted through the bund

and that only small vehicles can be used for agricultural purposes. In Exhibit P9

letter of the Construction Engineer also it was specifically stated therein that small

vehicles of less than 3 tonnes capacity can be permitted to be used for

agricultural purposes.

8. It is therefore clear that the judgment was rendered by the learned Single

Judge by adopting a balancing approach to protect the interest of the appellant

as well as the farmers, who are engaged in paddy cultivation in the bund area in

question. It is also clear from the Judgment that the contentions contained in the

counter affidavit filed by the 7th respondent that the bund road is not a pucca

road and if vehicles carrying heavy loads are permitted, the road would be

damaged and consequently it may materially affect the agricultural operations

carried out by the farmers with the help of the bund regulating the flow of water

was taken into account by the learned Single Judge. It is also clear from the

methodology adopted by the learned Single Judge that, if 3 wheelers are

permitted, it can carry goods only up to a limited quantity which would not ruin

the bund road constructed in a temporary manner. Therefore, the issue has to be

considered by this Court also taking into account the apprehensions expressed by

the farmers in the area and looking at the issue in that perspective, for the

primary reason that the bund was constructed to protect the interests of the

farmers and regulate paddy cultivation, which is clear from the documents

produced by the appellant himself and deliberated above. We are not oblivious of

the fact that the bund was constructed by the Government , but that by itself

would not digress the purpose for which it was constructed and permit any one to

carry out any activity defeating the purpose for which it was constructed. In fact

the authority has rejected the relief sought for by the appellant taking into

account the reports available on record and realising the fact that what was

relevant was the use of the bund for regulating paddy cultivation, which is the

predominant purpose for which it was constructed.

9. Thinking so, and deducing the facts law and the circumstances, we are of

the considered opinion that the view adopted by the learned Single Judge can

never be said to be illegal or erroneous or having any jurisdictional error justifying

this Court to interfere exercising the power conferred under section 5 of the

Kerala High Court Act, 1958. So also we are of the clear opinion that the dismissal

of the review petition was made by the learned Single Judge clearly finding that

there was no error apparent on the face of the record. We do not find any

illegality in the said order also in view of the fact that the judgment was rendered

by the learned Single Judge after having been assigned with reasons.

Needless to say, the writ appeal fails, accordingly it is dismissed.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

                                                    SHAJI P.CHALY

smv                                                      JUDGE