Kerala High Court
T. Soju vs State Of Kerala on 1 August, 2024
2024:KER:65057
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WP(C) No.7993 of 2014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.M.MANOJ
THURSDAY, THE 1ST DAY OF AUGUST 2024 /10TH SRAVANA, 1946
WP(C) NO. 7993 OF 2014
PETITIONER/S:
T. SOJU, AGED 33 YEARS
S/O.THANKAPPAN, RESIDING AT THANNIVILA HOUSE,
KULANGARAKKONAM, PALLICHAL VILLAGE,
MACHEL.P.O., THIRUVANANTHAPURAM.
BY ADVS.
SRI.G.P.SHINOD
SRI.GOVIND PADMANAABHAN
SRI.MANU V.
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY TO THE
GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF
KERALA
DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
3 THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF
KERALA
DEPARTMENT OF AGRICULTURE, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
4 THE DISTRICT COLLECTOR
THIRUVANANTHAPURAM, COLLECTORATE, CIVIL
STATION, KUDAPPANAKKUNNU(PO),
THIRUVANANTHAPURAM.695 015.
5 THE TAHSILDAR
THIRUVANANTHAPURAM. 695 001.
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WP(C) No.7993 of 2014
6 THE ADDITIONAL TAHSILDAR
THIRUVANANTHAPURAM.695 001.
7 THE VILLAGE OFFICER
MALAYINKEEZHU VILLAGE, MALAYINKEEZHU,
THIRUVANANTHAPURAM.695 572.
8 THE PRINCIPAL AGRICULTURAL OFFICER
THIRUVANANTHAPURAM.695 001.
9 THE AGRICULTURAL OFFICER
KRISHI BHAVAN, MALAYINKEEZHU,
THIRUVANANTHAPURAM.695 572.
10 PRATHEESH
S/O.MADHAVAN NAIR, MADHAVA MANGALAM, THILAK
NAGAR, MARUKIL, OORUTTAMBALAM(PO),
THIRUVANANTHAPURAM.695 506.
11 SATHEESH
S/O.MADHAVAN NAIR, MADHAVA MANGALAM, THILAK
NAGAR, MARUKIL, OORUTTAMBALAM(PO),
THIRUVANANTHAPURAM.695 506.
BY ADV SRI.R.GOPAN
OTHER PRESENT:
SRI.E.G.GORDEN,SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 01.08.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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WP(C) No.7993 of 2014
JUDGMENT
Dated this the 1st day of August, 2024
The above writ petition is preferred by the
petitioner being aggrieved by issuance of Exts.P13 and P14
orders invoking powers under Section 13 of the Kerala
Conservation of Paddy Land and Wetland Act, 2008 (for
short 'the Act, 2008) directing to restore the nature of land
and remove the compound wall to restore the natural flow of
water and declined the revision preferred against the said
order.
2. It is stated that the petitioner along with his wife
is in possession and enjoyment of 10.53 ares of property
comprised in Re.Sy.No.106/11 of Malayankeezhu Village by
virtue of document No.1462/10 of Malayankeezhu Sub
Registry. The property referred in the sale deed was stated
to be reclaimed paddy field 30 years back. There are
coconut trees which are nearly 25 years old and other trees
like Anjili, Mahagani, Arecanut and rubber having similar life
span. It is also contended that the entire area are at
present virtually garden land and there is no paddy
cultivation. The relevant portion in data bank is produced as
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Ext.P6 in order to show that the nature of land prescribed is,
" cultivated with coconut".
3. It is the case of the petitioner that in this
background, the 4th respondent initiated proceedings by
invoking Section 13 of the Kerala Conservation of Paddy
Land and Wetland Act, 2008. It is on the basis of a
complaint by late Smt.Sarojini Amma that the farmers in the
locality including her were unable to continue with their
paddy cultivation as the petitioner had obstructed the
natural flow of the water while reclaiming his property.
Smt.Sarojini Amma, the mother of the 10th and 11th
respondents, had approached this Court by preferring W.P.
(C) No.2763/2013 alleging that her complaints before the
statutory authority against the purported reclamation by the
petitioner was not responded to. By judgment dated
30.06.2013, this Court directed the District Collector to pass
appropriate orders in accordance with law on the
representation submitted by her.
4. After the demise of Smt.Sarojini Amma, her
sons, on whom the said properties were derived upon and
who are not indulged in any paddy cultivation, now
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proceeding against the petitioner.
5. Even in the data bank prepared for that area,
the property in Sy.No.106/12 owned by respondents 10 and
11 are cultivated with plantain. These factors were brought
before the 4th respondent. Despite consideration of these
factors, it is informed by the 7 th respondent Village Officer
that the District Collector has passed an order No.B16-
16845/2013 dated 29.05.2013 directing the petitioner to
permit the free flow of water by removing the soil which is
allegedly used for reclaiming the property within a period of
seven days from the date of receipt of the communication by
the 7th respondent. At that point of time, it is stated that
the petitioner was not served with the order of the District
Collector. On knowing the issuance of order dated
29.05.2013, the petitioner had preferred a revision before
the 1st respondent on 24.08.2013 under Section 28 of the
Act, 2008 even prior to obtaining the certified copy of the
order passed by the District Collector.
6. It is stated that such a step was taken on the
premise that the order dated 29.05.2013 will be
implemented with immediate effect. Under such
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circumstances, the petitioner has also preferred W.P.(C)
No.22740/2013 before this Court and the said writ petition
was disposed of by judgment dated 24.09.2013 with a
direction to dispose of the revision petition preferred by the
petitioner as per Ext.P11 and further directed to maintain
status quo. Later, the petitioner obtained a copy of the
order dated 29.05.2013, which is produced in the writ
petition as Ext.P13, which is stated to be erroneous. In this
regard, it is contended that going by the photographs
produced as well as the descriptions in the data bank, it
appears that the property in dispute is perfectly a garden
land.
7. It is further stated, the allegation in Ext.P13
order on the purported reports of the 7th and 9th respondents
that the petitioner had blocked the water flow with bricks
and he had made improvements therein using metal and tar
are false. The entire properties in the area slanting from
west to east and as such the water flows in the area from
west to east and it is also asserted that even if accepting the
contentions of respondents 10 and 11 that the petitioner
had reclaimed the property, the same cannot result in
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blocking of water flow of the property of respondents 10 and
11 or their late mother. Since, slant of the property as well
as water flow is from west to east and there are no chance
of flow of water from the property of the petitioner to the
property of late Sarojini Amma and there is no water
channel, natural or artificial in existence, traversing through
the property of the petitioner to that of the property of late
Sarojini Amma.
8. Without considering these facts, by Ext.P14
order, the revision petition was dismissed since as per the
title document itself, the property described as "nilam
nikathu purayidam" which is filled up and lying as a garden
land. Even the purported report of the 7 th respondent and in
paragraph 7 of Ext.P14, it is stated that there are coconut
trees standing in the property of the petitioner and there are
trees of which the age is unidentifiable.
9. It is also asserted that there are even 15
coconut trees as well as arecanut trees in the property
comprised in Sy.No.106/12, which is stated to be the
property of late Sarojini Amma, which was derived upon
respondents 10 and 11. On these assertions, the petitioner
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preferred to challenge Exts.P13 and P14.
10. In counter to the contentions raised in the writ
petition, counter affidavits were preferred by respondents 5
and 11. In the counter affidavit filed by the 11th respondent,
it is contended that the prior document of Ext.P1, i.e., the
settlement deed No.199/2005, the 2nd schedule property is
mentioned as paddy land. It also denies that the property
owned by the petitioner is reclaimed 38 years back. It is
further contended that the petitioner attempted to reclaim
the land in the year 2011 and tried to construct a granite
foundation by blocking the natural flow of water to the
paddy land passing through the larger area of paddy land
known as Edakkudy ela which has attracted the attention of
the media. Accordingly, his mother filed a complaint before
the Village Officer, Malayankeezhu. In response to that the
Village Officer, Malayankeezhu, on inspection, issued stop
memo directing him to stop the illegal filling of paddy land in
Block No.6, Re.Sy.No.106/2011 of Malayankeezhu Village.
11. Further, on the basis of the complaint preferred
by his Mother, the Local Level Monitoring Committee has
inspected the site and submitted a report before the
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Revenue Divisional Officer for taking necessary action
against the petitioner for the illegal reclamation of the paddy
land. It is further contended that in the said report it is
specifically stated that the petitioner has filled up paddy land
at a height of 3 metre by dumping soil and constructed a
granite wall, and blocking water flow thereby agricultural
operation in Edakkudy ela was adversely affected.
12. In this regard, the Revenue Divisional Officer,
Thiruvananthapuram, directed the Agricultural officer,
Malayankeezhu to conduct a spot inspection and file a
report. Accordingly, report was filed stating that the
petitioner had made some construction work by using metal
and tar and also further filled up the paddy field and
obstructed the flow of the canal by constructing granite wall.
During the rainy season, the entire crop in the Edakkudy
padasekharam (ela) will be damaged due to flood. The
respondent also tries to establish that, being convinced of
the illegal activity, necessary action has been taken to stop
the same. As a result, Ext.P13 and P14 are issued, which is
perfectly justifiable.
13. Similarly, the 5th respondent also preferred a
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counter affidavit, stating that an extent of 10.56 ares of land
comprised in Re.Sy. No.106/11 of Block No.6 of
Malayankeezhu Village in Kattakada Taluk is in the name of
the petitioner and as per the relevant records, it appears
that the property is described as Nilam. The petitioner had
unlawfully filled up the paddy land with soil thereby blocking
the free flow of the water channel, which flows to the paddy
field of the Smt.Sarojini Amma. In the year 2011, a
complaint has been preferred before the District Collector by
Smt.Sarojini Amma, a neighbour of the petitioner, against
reclamation of the paddy land, wherein she contended that
30 cents of paddy land on the eastern side of her property is
being reclaimed. Thereby the natural flow of water is
obstructed and therefore, farmers including the petitioner in
that complaint unable to do the cultivation.
14. In this regard enquiries have been conducted
by the District Collector and the Revenue Divisional Officer,
and in the light of the directions of this Court in W.P.
(C)No.2763/2013, the complaint preferred by Smt.Sarojini
Amma was disposed of after conducting hearings on
09.04.2013 and 13.04.2014 and on verifying the report
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submitted by the officials. The Agricultural Officer,
Malayankeezhu reported before the Revenue Divisional
Officer that, after local inspection it was found that the
contention raised by Smt.Sarojini Amma appears to be true.
The paddy field has been reclaimed by filling soil, which will
obstruct the free flow of water. The report of the Village
Officer also indicates that the land of the petitioner as well
as the party respondents are paddy lands as per the
relevant records. After conducting necessary enquiry and
hearing the affected parties, the District Collector has
passed Ext.P13 order. The revision preferred before the
Government was also disposed of after obtaining report from
the Local Level Monitoring Committee and on verification of
the necessary records. It is further stated that the land
comprised in Re.Sy.No.106/11 in Block No.6 of
Malayankeezhu Village in Kattakada Taluk is in the name of
the petitioner and was unlawfully filled using soil thereby
blocked the free flow of water channel. The land comprised
in Re.Sy.No.107/2 is the adjoining property of the land of
the petitioner. It is also stated that the Village Officer,
Malayakeezhu has issued a stop memo to stop illegal
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activities carried out in the filed and the activities conducted
by the petitioner appears to be against Section 3 of the Act,
2008. On these assertions, the respondents are seeking to
dismiss the writ petition.
15. I have heard Sri.Shinod G.P., the learned
counsel appearing for the petitioner and Sri.R.Gopakumar,
the learned counsel appearing for respondent Nos.10 and 11
and Sri.Venugopal, the learned Government Pleader for the
official respondents.
16. On going by the records and averments, it
appears that the entire litigation is part of the rivalry
between two neighbours. In fact, from the counter affidavit
fled by the official respondent - Tahsildar, it appears that
both the property of the petitioner as well as the party
respondents are paddy lands. But as per the data bank
prepared for the area, it appears in the remarks column that
the properties are described not as paddy land but having
some other cultivation. That itself shows that the purpose of
the Act does not meet. Going by Exts.P13 and P14, it
appears that the official respondents have not properly
evaluated the facts and circumstances. In fact, the reports
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preferred by the statutory authorities also appear to be in
partisan manner. No independent evaluation has been done
by resorting to any scientific method which is provided
under Section 5 (4) (i) of the Act, 2008. It is specifically
stated in Section 5(4)(i) that:
(4) The Committee shall perform the following
functions, namely:-
(i) to prepare the data-bank with the
details of the cultivable paddy land and wetland,
within the area of jurisdiction of the Committee,
with the help of the map prepared or to be
prepared by the State Land Use Board or Centre-
State Science and Technology Institutions on the
basis of satellite pictures by incorporating the
survey numbers and extent in the data-bank and
get it notified by the concerned
Panchayat/Municipality/Corporation, in such
manner as may be prescribed, and exhibit the
same for the information of the public, in the
respective Panchayat/Municipality/Corporation
Office and in the Village Office/Officers."
17. On going by the said provision, it is appealing
to my conscious that quietus to the issue shall be given only
if the parties are directed to avail the scientific method of
assessing the nature of property. Accordingly, there will be a
direction to the petitioner to approach the Agricultural
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officer- the 9th respondent to obtain the satellite picture as
provided under Section 5(4) (i) of the Act, 2008, by
preferring necessary application and also making sufficient
fee as prescribed. On obtaining such report, the entire issue
has to be reconsidered by the statutory authorities. For that
purpose, I prefer to set aside Exts.P13 and P14 orders.
Accordingly, Exts.P13 and P14 orders stand set aside and
exercise of obtaining satellite picture shall be initiated within
a period of one month from the date of receipt of a certified
copy of the judgment by the petitioner through the 9th
respondent Agricultural officer. On receipt of the same, the
District Collector shall reconsider the issue involved in
Ext.P13 and pass fresh orders by availing necessary reports
on the basis of the satellite picture obtained through the 9 th
respondent.
The writ petition is disposed of accordingly.
SD/-
P.M.MANOJ
JUDGE
das
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APPENDIX OF WP(C) 7993/2014
PETITIONER EXHIBITS
P1- A TRUE PHOTOCOPY OF THE CERTIFIED COPY
OF DOCUMENT NO.1462/2010 OF MALAYINKEEZHU
SRO.
P2- A PHOTOGRAPH EVIDENCING THE PRESENT LIE
AND NATURE OF THE PETITIONER'S PROPERTY.
P3- A PHOTOGRAPH EVIDENCING THE PRESENT LIE
AND NATURE OF THE PETITIONER'S PROPERTY AS
WELL AS THE NEARBY PROPERTY.
P4- A PHOTOGRAPH EVIDENCING THE PRESENT LIE
AND NATURE OF THE PROPERTY SITUATED TO THE
EAST OF THE PETITIONER'S PROPERTY.
P5- A PHOTOGRAPH EVIDENCING THE PRESENT LIE
AND NATURE OF THE PROPERTY SITUATED TO THE
NORTH OF THE PETITIONER'S PROPERTY.
P6- A TRUE PHOTOCOPY OF THE EXTRACT OF THE
RELEVANT PORTION OF THE DATA BANK OF
MALAYINKEEZHU VILLAGE PERTAINING TO THE
PROPERTIES SERIALIZED AS 107 TO 120.
P7- A TRUE COPY OF THE JUDGMENT DATED
30.06.2013 PASSED BY THIS HONOURABLE COURT
IN WRIT PETITION(CIVIL)NO.2763 OF 2013.
P8- A PHOTOGRAPH EVIDENCING THE PRESENT LIE
AND NATURE OF THE PROPERTY OF THE TENTH AND
ELEVENTH RESPONDENTS(ERSTWHILE PROPERTY OF
LAST SMT.SAROJINI AMMA)
P9- A PHOTOGRAPH EVIDENCING THE PRESENT LIE
AND NATURE OF THE AFOREMENTIONED PROPERTIES
OF BOTH THE PETITIONER AND THE TENTH AND
ELEVENTH RESPONDENTS(ERSTWHILE PROPERTY OF
LATE SMT.SAROJINI AMMA)
P10- A TRUE PHOTOCOPY OF LETTER NO.1037/13
ISSUED BY THE SEVENTH RESPONDENT.
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P11- A TRUE PHOTOCOPY OF THE REVISION
PETITION SUBMITTED BY THE PETITIONER BEFORE
THE GOVERNMENT OF KERALA (REPRESENTED BY
THE SECOND RESPONDENT)IN TERMS OF SECTION
28 OF THE KERALA CONSERVATION OF PADDY LAND
AND WETLAND ACT, 2008.
P12- A TRUE PHOTOCOPY OF THE JUDGMENT DATED
24.09.2013 OF THIS HONOURABLE COURT IN WRIT
PETITION (CIVIL)NO.22740 OF 2013.
P13- A TRUE PHOTOCOPY OF ORDER NO.B16-
16845/2013 DATED 29.05.2013 OF THE FOURTH
RESPONDENT.
P14- A TRUE PHOTOCOPY OF GOVERNMENT ORDER
(RT)NO.150/2014/AGRICULTURE DATED
24.01.2014.
RESPONDENT EXHIBITS
Exhibit True copy of the Settlement Deed No.
R11(a) 199/2005 of Malayinkeezhu SRO
Exhibit True copy of BTR extract
R11(b)
Exhibit True copy of stop memo directing him to
R11(c) stop the illegal filling of paddy land in
Malayinkeezhu Village
Exhibit True copy of the news paper report dated
R11(d) 18.4.2011 in Mathrubhoomi Daily
Exhibit True copy of the news paper report dated
R11(e) 18.4.2021 in Mangalam Daily
Exhibit True copy of the report dated 25.4.2011
R11(f) submitted by the local level Monitoring
Committee of Malayinkeezhu Grama Panchayath
before the RDO, Thiruvananthapuram
Exhibit True copy of the report dated 2.2.2013
R11(g) submitted by the Agriculturalj Officer,
Krishi Bhavan, Malayinkeezh before the RDO,
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Thiruvananthapuram
Exhibit True copy of the decision of the Local
R11(h) Level Monitoring Committee dated 8.11.2013
Exhibit True copy of the representation datedx
R11(i) 16.4.2011 filed by late Smt. Sarojini Amma
before the Thiruvananthapuram District
Collector
Exhibit True copy of the Judgment dated 30.1.2013
R11(j) in W.P.(C) No. 2763/2013 of this Honourable
Court
Exhibit True photographs of the paddy land in Re-
R11(k) Survey No. 106/12 of Malayinkeezhu Village
