P.Damodharan vs Kayamkulam Municipality
2024 Latest Caselaw 14378 Ker

Kerala High Court

P.Damodharan vs Kayamkulam Municipality on 31 May, 2024

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
      FRIDAY, THE 31ST DAY OF MAY 2024 / 10TH JYAISHTA, 1946
                      WP(C) NO. 38911 OF 2017
PETITIONER:
           P.DAMODHARAN
           AGED 67 YEARS, RESIDING AT KOCHUPARAMBIL VEEDU,ERUVA
           EAST MURI, PATHIYOOR VILLAGE,KARTHIKAPPALLY TALUK,
           ALAPPUZHA.690574

          BY ADVS.
          SRI.R.RAJASEKHARAN PILLAI
          SMT.SABINA JAYAN
          DR.SHERINE JOSEPH


RESPONDENTS:
     1     KAYAMKULAM MUNICIPALITY
           REPRESENTED BY ITS SECRETARY,MUNICIPAL BUILDING,
           KAYAMKULAM.690502
     2     THE LOCAL LEVEL MONITORING COMMITTEE
           KAYAMKULAM MUNICIPALITY, REPRESENTED BY ITS
           CONVENER,THE AGRICULTURAL OFFICER, KAYAMKULAM.690502
     3     THE TAHSILDAR
           KARTHIKAPPALLY TALUK, HARIPAD, ALAPPUZHA.690514
     4     DR.RESHMI R NAIR
           DR.RESHMI R NAIRD/O RAMESHKUMAR, RESIDING AT
           KARYAPPALLITHARAYIL,ERUVA EAST, PATHIYOOR VILLAGE,
           ALAPPUZHA.690574
     5     THE DISTRICT COLLECTOR
           ALAPPUZHA COLLECTORATE, ALAPPUZHA.688001

          BY ADVS.
          SRI.RAYA SHENOI,SC,KAYAMKULAM MUNICIPAL
          SRI.A.SHAFEEK (KAYAMKULAM)
          SRI.T.R.RAJAN
          SRI.R.JAYARAM DAS
          RAJAN T R


OTHER PRESENT:
           SRI.RIYAL DEVASSY, GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
31.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P (C) No.38911 of 2017


                                       2

                    P.V.KUNHIKRISHNAN,J.
                 ---------------------
                    W.P (C) No.38911 of 2017
              ---------------------------
                Dated this the 31st day of May, 2024

                                 JUDGMENT

This writ petition is filed with the following prayers:-

"i) Issue a writ of mandamus or other appropriate writ, order or direction directing the 1st respondent not to issue license to the 4th respondent to construct the house by filling the pond situated in the property comprised in Re-Sy. No. 91/130 of Pathiyoor Village, Karthikaoppally Taluk, Alappuzha District:

ii) Issue such other appropriate writ, order or direction as this Hon'ble Court may deem fit and proper to meet the ends of justice.

iii) Award cost." (SIC)

2. It is submitted that the 4th respondent started filling

the pond/tank situated in their property which was objected by

the neighbours including the petitioner herein. Consequently,

the Village Officer had issued a stop memo and submitted

Ext.P2 report to the Tahsildar is the further submission. The 4 th

respondent filed O.S.No.101/2015 before the Munsiffs Court to

restrain the petitioner and others from stopping her from

making any construction, which according to the petitioner, was

compromised on the condition that she will obtain necessary

permission from all other authorities before commencing the

construction is the submission. Thereafter, it submitted that the

4th respondent is trying to obtain permission and license to

construct a building in the said place where the pond is

situated. Thereupon, knowing about the same, the petitioner

made a representation to the Collector is the submission.

According to the petitioner, if any permit is granted, it will affect

the ecology and the wells in the surrounding houses would be

dried up in the event of the pond is reclaimed. It is also

submitted that it violates the provisions of the Kerala

Conservation of Paddy Land and Wetland Act. Hence, this writ

petition is filed.

3. Heard the counsel for the petitioner, the Government

pleader, the Standing Counsel for the 1st respondent

Municipality and also the counsel appearing for the 4 th

respondent.

4. The Counsel appearing for the petitioner reiterated

the contentions raised in this writ petition. The counsel

submitted that the construction of the 4 th respondent is in

violation of the statutory provisions. The counsel also takes me

through paragraph 5 to 7 of the statement filed by the 3 rd

respondent.

5. The Counsel appearing for the 4th respondent

submitted that the suit was disposed based on a compromise

and the 4th respondent already complied all the demands of the

petitioner and the neighbours.

6. It is an admitted fact that the construction in the

disputed property is already over. A statement is filed by the 3 rd

respondent. The relevant portion of the same is extracted

hereunder:-

"4. The land which is compromised in Re.Sy.No.91/130 Re.Sy.Block 91 of Pathiyoor Village is classified as Dry land in BTR and not included in the Data Bank. Permission for reclamation of land which is classified as 'Nilam'(Wetland) in BTR and also included in Data Bank should be given only by the District Collector/Revenue Divisional Officer, Alappuzha after getting proposals concerned LLMC(Local Level Monitory Committee). Here, even the 4th respondent's property is not included in data bank and classified as dry land in BTR, but the illegal reclamation of above said pond is against the

provisions of Kerala Paddy and Wet Land Conservation Act 2008.

5. Even though the said property is classified as Dryland in BTR, and not included in Data bank, illegal filling of the pond without any permission from concerned authority is against the provisions of Kerala Paddy and Wet Land Conservation Act- 2008. So the matter has been reported to the Revenue Divisional Officer. Chengannur for further steps.

6. The Revenue Divisional Officer, Chengannoor will inform this matter to the District Collector (the 5th respondent) for taking necessary steps for reinstating the reclaimed pond as per Kerala Paddy and Wet Land Conservation Act 2008.

7. It is noticed that unauthorized filling of pond was being done on the said land during night time and the matter has been informed to Sub Inspector, Kayamkulam for strengthening the night patrolling."

7. The counsel for the 4th respondent submitted that the

construction is made after getting necessary permits from the

local authority. The counsel for the petitioner also relied the

judgment of this Court in Ajithkumar K.V. v. Vinod Kumar

and others (2016 (1) KHC 477), Asma V. District

Collector, Thrissur and others (2015 KHC 2389).

8. This Court considered the contentions of the

petitioner and the respondents. As observed above,

construction is already over. The petitioner submitted that he

already submitted Ext.P3 application before the District

Collector and the same is not considered. If that is the case,

there can be a direction to the District Collector to consider the

same with notice to the petitioner and the 4th respondent. I

make it clear that I have not considered the matter on merit

and the District collector is free to pass appropriate orders in

accordance with law. The contention of the 4 th respondent to

the effect that it is not a paddy land in the light of Ext.R4(a) will

also be considered by the 5th respondent.

Therefore, this writ petition is disposed of with the

following directions:-

1) The 5th respondent is directed to consider and pass

appropriate orders in Ext.P3, after giving an opportunity

of hearing to the petitioner and the 4th respondent, as

expeditiously as possible, at any rate, within three

months from the date of receipt of the representation.

2) All the contentions raised by the petitioner and the 4 th

respondent are left open and they are free to agitate the

same before the 5th respondent.

Sd/-

P.V.KUNHIKRISHNAN JUDGE bng

APPENDIX OF WP(C) 38911/2017

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE COMPROMISE DECREE IN O.S NO.101/2015 ON THE FILE OF THE MUNSIFF'S COURT KAYAMKULAM.

EXHIBIT P2 TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER DATED 6.2.2015

EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 18.7.2017 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.

Respondents exhibits

EXHIBIT R4(A) TRUE COPY OF SALE DEED NO.1011/2012 DATED 23.05.2012 IN FAVOUR OF THE 4TH RESPONDENT

EXHIBIT R4(B) TRUE COPY OF TAX RECEIPT NO.7263714 DATED 22.01.2018

EXHIBIT R4(C) TRUE COPY OF PAGE 53 OF BTR

EXHIBIT R4(D) TRUE COPY OF THANDAPER REGISTER OF THANDAPER NO.8667

EXHIBIT R4(E) TRUE COPY OF POSSESSION CERTIFICATE NO.744/2014 DATED 29.04.2014

EXHIBIT R4(F) TRUE COPY OF POSSESSION CERTIFICATE NO.25/2017 DATED 05.01.2017

EXHIBIT R4(G) TRUE COPY OF BUILDING PERMIT B.A.NO.1116/16-17 DATED 12.05.2014

EXHIBIT R4(H) TRUE COPY OF BUILDING PERMIT B.A.NO.1116/16-17 DATED 30.05.2017

EXHIBIT R4(I) CERTIFICATE NO.06/17-18 DATED 18.12.2017 ISSUED FROM KRISHI BHAVAN, KAYAMKULAM

EXHIBIT R4(J) TRUE PHOTOCOPY OF OCCUPANCY CERTIFICATE

DATED 01.06.2017

EXHIBIT R4(K) TRUE PHOTOCOPY OF AGREEMENT DATED 20.02.2017 EXECUTED BY ME WITH THE 1ST RESPONDENT MUNICIPALITY TO AVAIL FINANCIAL ASSISTANCE AS BENEFICIARY OF PMAY PROJECT FOR HOUSE CONSTRUCTION.

EXHIBIT R4(I) TRUE PHOTOCOPY OF OCCUPANCY CERTIFICATE DATED 22.05.2018, FOR THE NEW HOUSE

EXHIBIT R4(M) TRUE PHOTOCOPY OF DEMAND NOTICE DATED 04.06.2018 FOR TAX FOR THE NEW HOUSE

EXHIBIT R4(N) TRUE PHOTOCOPY OF TAX RECEIPT NO.91544 DATED 04.06.2018 FOR TAX PAID FOR THE NEW HOUSE