Ettumanoor Development Council v. Edassery Towers Pvt. Ltd and Kumarakom Grama Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 3[RD] DAY OF DECEMBER 2021 / 12TH AGRAHAYANA,** ## **1943** ## **OP(C) NO. 1210 OF 2021** **OS 211/2020 OF ADDITIONAL MUNSIFF COURT, KOTTAYAM** ## **PETITIONER/S:** ETTUMANOOR DEVELOPMENT COUNCIL REGISTER NO.KTM/TC/371/2021, MOOLEPARAMPIL BUILDINGS, PALLIKKOODAM KAVALA PEROOR P.O., PEROOR VILLAGE, KOTTAYAM DISTRICT, REPRESENTED BY ITS SECRETARY, JEEVAN THOMAS, AGED 37 YEARS, S/O. M.C THOMAS, MOOLEPARAMPIL HOUSE PEROOR P.O., KOTTAYAM TALUK, KOTTAYAM DISTRICT-686 637 BY ADVS. K.C.VINCENT P.S.GEORGE ## **RESPONDENT/S:** 1 EDASSERY TOWERS PVT. LTD ANGAMALY KARA, ANGAMALY VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT, REPRESENTED BY ITS MANAGING DIRECTOR E.J.DAVIS,AGED 64 YEARS, S/O. E.M.JOSEPH, EDASSERY HOUSE, ANGADIKADAVU ROAD, ANGAMLY KARA, ANGAMLY VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT-683 572 2 THE KUMARAKAOM GRAMA PANCHAYATH, KUMARAKOM P.O., KUMARAKOM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, REPRESENTED BY ITS SECRETARY BY ADVS. DINESH R.SHENOY EBIN MATHEW **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17.09.2021, THE COURT ON 03.12.2021 DELIVERED THE FOLLOWING:** OPC 1210 OF 2021 -2- ## **JUDGMENT** Dated this the 3[rd] day of December, 2021 The petitioner Society is the plaintiff in O.S.No.211 of 2020 on the files of the Additional Munsiff's Court, Kottayam. The suit is instituted alleging that the first defendant, who is in possession of an extent of 17 cents of land in Re-Sy.Nos.172/3-2 and 172/8-2 in Kumarakom Village, is carrying out construction in the property in violation of the Kerala Conservation of Paddy Land and Wet Lands Act and the Coastal Regulation Zone Notification, 2011. The alleged violation is the construction of a commercial building over reclaimed wet land/kayal nilam within 50 metres of the Vembanad lake. The further allegation is that the second respondent Panchayat, even though prodded into action by the petitioner, is refraining from exercising its statutory duty of preventing the illegal OPC 1210 OF 2021 -3- construction. The reliefs sought in the suit are as under; _“A. Grant a permanent prohibitory injunction restraining the first defendant from furthering with his plaint schedule item no.2 construction which he is carrying out within the 50 meters width landward from High Tide Lime of the Vembanadu Lake lying to its west ie in the prohibited zone under the Coastal Regulation Zone Notifications._ _B. Grant a mandatory injunction directing the first defendant to remove the constructions made in the plaint schedule item No.2 property within a width of 50 meters landward from High Tide Line of the Vembanadu Lake ie in the prohibited zone under the Coastal Regulation Zone Notifications._ _C. Grant a mandatory injunction directing the second defendant to withdraw the building permit granted with respect to the plaint schedule item No.2 construction.”_ 2. The trial court granted an ex-parte ad- interim injunction, which was made absolute by Ext.P7 order, thereby restraining the first defendant from proceeding with the construction until further orders. Aggrieved by the order, the first respondent filed appeal, which stands OPC 1210 OF 2021 -4- allowed by Ext.P8 judgment, vacating the injunction order. The challenge in this original petition is against Ext.P8 order. 3. Heard Sri.Vincent K.C, learned Counsel for the petitioner and Sri.Dinesh R.Shenoy, learned Counsel for the first respondent. Despite service of notice, the second respondent Panchayat has not even filed vakkalath, which, according to the petitioner, is deliberate, since the Panchayat has so far not appeared in the suit also. 4. Learned Counsel for the petitioner contended that the appellate court had committed a gross illegality in having interfered with the well reasoned order of the trial court. In order to show the lie and nature of the property, the learned Counsel drew attention to the rough sketch appended to Ext.P13 report submitted by the Advocate Commissioner. A perusal of the sketch shows that the commercial building (plaint OPC 1210 OF 2021 -5- item No.2) is being constructed within plaint schedule item No.1 property. Between plaint schedule item No.1 property and Vembanad lake on the western side, there is an extent of property, comprised in Re.Sy.No.45, comprised in Re-Sy.No.45, which is waterlogged. The Advocate Commissioner has noted that in between the waterlogged area and the construction, boards have been erected stating that the property belongs to the Government and is kayal nilam. 5. From the arguments advanced, it is evident that the dispute centers around the question whether the petitioner is constructing the commercial building within the prohibited distance from the Vembanad lake and for the purpose of calculating the distance, whether the property beyond the petitioner's western boundary is to be considered as kayal/backwater. The statutes relevant for the purpose of deciding the question are the Paddy Land and Wet Lands Act and OPC 1210 OF 2021 -6- the Coastal Regulation Zone Notification, 2011. The petitioner claims that the disputed area is private land, whereas the respondent describes it to be the Kayal Nilam/Kayal vested with the Government. 6. In order to contend that the disputed portion is private property, the petitioner banks upon Ext.P14 judgment of this Court and the proceedings of the Government for cancelling the Thandaper for the above mentioned property, issued in the name of a private individual. The first respondent, on the other hand, relies on Ext.R1(h) co-relation statement and Ext.R1(i) and R1(o) extracts of basic tax register. On the question whether the CRZ notification is applicable to Kumarakam Panchayat and consequently, the construction being carried out by the petitioner, reliance is placed on Ext.R1(j) Coastal Zone Management Plan (CZMP) of Kerala of Kottayam District and Ext.R1(n) letter OPC 1210 OF 2021 **==> picture [16 x 8] intentionally omitted <==** issued by the Vigilance and Anti-corruption Bureau. The contention of the first respondent is that Kumarakam Panchayat doesn't fall within the areas notified by the Coastal Zone Management Authority is sought to be refuted by the petitioner, placing reliance upon Ext.P9 letter issued by the member secretary, KCZMA. 7. The undisputed facts are that the second respondent Panchayat had issued building permit to the petitioner on 04.03.2016. Later, based on Ext.P5 letter of the Assistant Engineer, LSGD, the first respondent was issued with a stop memo dated 25.08.2017. The second respondent Panchayat withdrew the stop memo on 16.12.2019 and renewed the first respondent's building permit. Again, the petitioner was issued with Ext.P6 show-cause notice and stop memo, which was later withdrawn by Ext.P12 order, based on the information that the Vigilance and Anti-corruption Bureau had enquired and found the allegation raised in OPC 1210 OF 2021 -8- connection with grant of building permit to be false. The first respondent has produced Ext.R1(p) stop memo dated 02.08.2021 purportedly issued on the basis of the interim order passed in this original petition. 8. Before proceeding to consider the case on merits, I have to express strong dissatisfaction against the manner in which the second respondent Panchayat has been contesting the case before the trial court and this Court. The Panchayat is bestowed with certain statutory duties and, when called upon by a court of law, whether it be the Munsiff's Court or the High Court, is bound to respond and place on record its views on the issue under consideration. Unfortunately, in spite of being served with notice and the contentious nature of the suit, which include allegations against the Panchayat officials, the second respondent has not even cared to file vakkalath. The deliberate refusal OPC 1210 OF 2021 -9- by the second respondent to respond to the notices issued by courts of law, warrants appropriate action by the superior authorities. 9. The trial court granted interim injunction holding that the property in ReSy.No.45 having been declared as Kayal Nilam ought to be treated as Kayal, and in such event, construction in item No.1 property adjacent to the Kayal Nilam will be subject to the provisions of the CRZ Notification, 2011. It was therefore held that the second respondent has no authority to issue permit without concurrence of the authority under the CRZ Notification. The trial court also held that, item No.1 property is described as purayidam in the title deed and revenue records and there is no material available to find that the plaint schedule property is a wetland covered by the Kerala Conservation of Paddy Land and Wet Lands Act. Having held so, the trial court observed that, OPC 1210 OF 2021 -10- the plaint schedule property is lying near a tidal influenced water body, is a fact which cannot be discarded. Referring to the objectives sought by the CRZ Notifications, it was hence held that the plaintiff had succeeded in establishing a _prima facie_ case and that the balance of convenience is in the plaintiff's favour. 10. The appellate court interfered with the findings of the trial court mainly based on Ext.R1(j), the Coastal Zone Management Plan for Kottayam District in which the Kumarakam Panchayat is not included as a notified area. Reference is made to the decision in _**Suraj K.S**_ _**and another v. State of Kerala and others [2018 1**_ _**KHC 250]**_ , wherein this Court held that, the prohibition under the CRZ notification will apply only if the area wherein the construction is carried out falls within the declared CRZ Zones. The appellate court placed reliance on the OPC 1210 OF 2021 -11- definition of wetland under Section 2(xviii) of the Kerala Wet Land and Paddy Lands Act to find that even if the argument that the land was originally a 'nilam' is admitted, it would not fall under the definition of the 'wetland' under the Act. Placing reliance on the co-relation register and extract of the basic tax register, the appellate court found that the property comprised in Re-Sy.No.45 is purayidam and not kayal. Based on the findings, it was held that the prima facie case and balance of convenience is in favour of the appellant. 11. The question whether the property comprised in Re.Sy.No.45 is kayal puramboke or private property had been answered by this Court in W.P.(C) No.12799 of 2012 and the matter is pending in appeal. As such, it may not be proper for this Court to render an opinion on the nature of the land, other than to observe that as on date, the issue stands covered by the decision in OPC 1210 OF 2021 -12- W.P.(C) No.12799 of 2012. For the same reason, the finding of the appellate court that the property comprised in Re-Sy.No.45 is purayidam, is liable to be vacated. 12. As on date, Ext.R1(j) notification holds the field and Kumarakam Panchayath is not included therein. As such, there is no statutory restriction against effecting construction in plaint item No.1 property. In this regard, it may be pertinent to note that in W.P.(C) No.7495 of 2012, a Division Bench of this Court accepted the explanation offered by the Kumarakam Grama Panchayat that the distance restriction from Vembanad lake was not reckoned while numbering the buildings adjacent to the lake, since the water body on the southern side of the Thanneermukkom bund is comprised of fresh water and is uninfluenced by the tidal action. 13. Indisputably, the distance from Vembanad lake to the construction site is around 140 OPC 1210 OF 2021 **==> picture [23 x 9] intentionally omitted <==** metres. The prohibition under the Paddy Land and Wet Lands Act would apply only if the property comprised in Re-Sy.No.45 falls within the definition of Wetland under the Act. Under section 2(xviii) of the Act, wetland is defined as under; _“(xviii) “Wetland” means land lying between terrestrial and aquatic system, where the water table is usually at or near the surface or which is covered by shallow water, or characterized by the presence of sluggishly moving or standing water, saturating the soil with water and includes backwaters, estuary fens lagoon, mangroves marshes, salt marsh and swamp forests but does not include paddy land and rivers”_ A reading of the definition shows that paddy lands are specifically excluded from the purview of wetland. The description of the property in Re-Sy.No.45 is 'kayal nilam', which means land lying adjacent to the kayal suitable for paddy cultivation. As such, the finding of the trial court that the kayal land is to be treated as OPC 1210 OF 2021 -14- kayal cannot be sustained, in the absence of supporting evidence. 14. Having heard the learned Counsel on either side at length and having carefully scrutinized the documents and the impugned orders, I am of the considered opinion that the disputed questions of fact arising for consideration can be decided only on the basis of evidence to be tendered by the parties. The findings rendered by the trial and appellate courts at the interlocutory stage should not impact the final decision in the suit. Therefore, the appropriate course of action is to decide the suit, uninfluenced by the observations in the injunction order and the appellate judgment. For the aforementioned reasons, the original petition is dismissed, without prejudice to the rights of the parties to urge all contentions, including the contentions raised herein, before the trial court. Considering the importance of OPC 1210 OF 2021 -15- the issue involved, the trial court shall endeavour to dispose of the suit within an outer limit of eight months. Needless to say, final decision in the suit shall be taken, untrammeled and uninfluenced by the findings in the impugned order/judgment and untrammeled by the observations in this judgment, strictly based on the evidence to be tendered by the parties. The construction carried out by the petitioner in the meanwhile, shall only be based on the permission, if any, granted by the second respondent Panchayat and subject to the outcome of the original petition. The Secretary of the 2[nd] respondent Panchayat shall file written statement forthwith. Since the Secretary of the second respondent failed to appear in the suit and in this original petition, in spite of service of notice, a copy of this judgment shall be handed over to the Government Pleader, for forwarding to the Director of Panchayats, so as to prompt the OPC 1210 OF 2021 -16- Secretary to respond to the notice issued by the trial court and to ensure that the written statement is filed, as directed above. Sd/- **V.G.ARUN JUDGE** Scl/ OPC 1210 OF 2021 -17- ## **APPENDIX OF OP(C) 1210/2021** |PETITIONER EXHIBITS|PETITIONER EXHIBITS| |---|---| |Exhibit P1|A TRUE COPY OF THE CERTIFICATE OF| ||REGISTRATION DATED 19.09.2012| |Exhibit P2|A TRUE COPY OF THE PLAINT IN OS 211 OF| ||2020 ON THE FILE OF THE ADDITIONAL| ||MUNSIFF COURT, KOTTAYAM| |Exhibit P3|A TRUE COPY OF THE IA NO.2 OF 2020 IN| ||OS NO.211 OF 2020| |Exhibit P4|A TRUE COPY OF THE COMPLAINT FILED BY| ||SRI.JEEVAN THOMAS ON 15.03.2017| |Exhibit P5|A TRUE COPY OF THE LETTER SUBMITTED BY| ||THE ASSISTANT ENGINEER , LSGD,| ||KUMARAKOM DATED 24.08.2017| |Exhibit P6|A TRUE COPY OF THE STOP MEMO CUM SHOW-| ||CAUSE NOTICE DATED 04.02.2020| |Exhibit P7|A TRUE COPY OF THE ORDER OF THE| ||LEARNED ADDITIONAL MUSNIFF , KOTTAYAM| ||IN IA NO.2 OF 2020 IN OS NO.211 OF| ||2020 DATED 19.09.2020| |Exhibit P8|A TRUE COPY OF THE JUDGMENT IN C.M.A| ||NO.33 OF 2020 DATED 21.01.2020| |Exhibit P9|TRUE COPY OF THE COMMUNICATION DATED| ||16.01.2014 ISSUED BY THE MEMBER| ||SECRETARY KCZMA| |Exhibit P10|TRUE COPIES OF THE TANDAPPER ACCOUNTS| ||OBTAINED UNDER RTI ACT ON 16.03.2020| |Exhibit P11|A TRUE COPY OF THE REPLY UNDER RTI ACT| ||DATED 06.12.2019| |Exhibit P12|A TRUE COPY OF THE PROCEEDINGS OF THE| ||2ND RESPONDENT DATED 29.02.2020| |Exhibit P13|A TRUE COPY OF THE COMMISSION REPORT| ||DATED 17.03.2020|