Jacob C.L v. District Collector Ernakulam and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ``` THURSDAY, THE 22[ND] DAY OF SEPTEMBER 2022 / 31ST BHADRA, 1944 ``` ## **`WP(C) NO. 26155 OF 2022`** ## **`PETITIONER:`** ``` JACOB C.L AGED 62 YEARS S/O. C.J. LONAN, CHAKKIAMURI, KUMBALANGHI, KUMBALANGHI P.O. ERNAKULAM, PIN - 682007 BY ADV D.LEEMA ROSY ``` ## **`RESPONDENTS:`** - **`1 DISTRICT COLLECTOR ERNAKULAM CIVIL STATION, KAKKANAD, KOCHI, PIN - 682030`** - **`2 THE REVENUE DIVISIONAL OFFICER FORT KOCHI, ERNAKULAM., PIN - 682008`** - **`3 THE VILLAGE OFFICER VILLAGE OFFICE, KUMBALANGHI POST OFFICE, KUMBALANGHI, KOCHI., PIN - 682008`** - **`4 AGRICULTURAL OFFICER AGRICULTURE OFFICE, KUMBALANGHI POST OFFICE, KUMBALANGHI, KOCHI., PIN - 682007`** - **`5 RAVI ALIAS VELAYUTHAN AGED 55 YEARS, KARIYITHARA HOUSE, KUMBALANGHI POST OFFICE, KUMBALANGHI, KOCHI., PIN - 682007`** ## **`SMT.VIDYA KURIAKOSE GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 26155 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 22[nd] day of September, 2022 The petitioner, who is one of the owners of 3 Acres and 43 Cents of land in Survey No.900/2 of Kumbalanghi Village, Kochi Taluk, is before this Court seeking to direct the 2[nd] respondent to consider and pass orders on Ext.P4 application filed by the petitioner without any further delay. 2. The petitioner states that the paddy land owned by the petitioner is a pokkali paddy land. The petitioner wanted to strengthen the pokkali field by strengthening the bunds. While the petitioner was carrying out that activity, the Village Officer has issued Ext.P3 Stop Memo. 3. In Ex.P3 Stop Memo, the Village Officer has stated that the petitioner is constructing bunds using soil with ``` WP(C) NO. 26155 OF 2022 ``` ``` 3 ``` the aid of a Hitachi. The activity of the petitioner is without any permission from the competent authority. Therefore, the petitioner was required to stop the activities. 4. The petitioner states that he submitted Ext.P4 representation before the Revenue Divisional Officer pointing out that the petitioner is only strengthening the bunds of the paddy land for beneficial use of the paddy land and to resort to paddy cultivation. Ext.P4 has not been considered so far. 5. Counsel for the petitioner argued that Ext.P3 Stop Memo is arbitrary. The petitioner has not acted contrary to any of the provisions of the laws including the Kerala Land Utilisation Order and the Kerala Conservation of Paddy Land and Wetland Act, 2008. 6. Construction of a bund is highly necessary, since the pokkali cultivation will be possible only if the saline water is pumped out of the bund. The land has to be prepared by forming small hills after filling the soil. Fresh water has to be ``` WP(C) NO. 26155 OF 2022 ``` ``` 4 ``` retained in the property and then alone pokkali cultivation will be possible. The construction and the strengthening of existing bunds is highly necessary for this. 7. Government Pleader entered appearance and resisted the writ petition. A counter affidavit has been filed on behalf of the 4[th] respondent. The 4[th] respondent stated that the petitioner’s activity is to facilitate fish farming alone. The existing bunds’ strength is not sufficient to do fish farming and so, the petitioner is trying to strengthen the bunds by taking soil from the paddy fields. It is not correct to state that the strengthening of the bund is intended for paddy cultivation. It is very clear from the activities of the petitioner that the petitioner is constructing the bund only to facilitate aquaculture. 8. The Government Pleader submitted that the activity of the petitioner is in violation of the PLDA Order issued by the District Collector. If the petitioner’s activity is ``` WP(C) NO. 26155 OF 2022 ``` ``` 5 ``` permitted, it would adversely affect the eco system. If individual farmers are permitted to construct bunds for fish farming, it will adversely affect the pokkali paddy cultivation. 9. The Government Pleader further pointed out that in **Wonderla Holidays Ltd. v. Revenue Divisional Officer, Muvattupuzha and others [2021 (5) KHC 754]** , this Court has held that fish farming is permissible as an intermediary crop in the paddy land. The Act permits only strengthening of existing bunds for protecting the cultivation and not for constructing new bunds. The petitioner has admitted that he is constructing new bunds. 10. I have heard the learned counsel for the petitioner and the learned Government Pleader representing the respondents. 11. The petitioner owns 3 Acres and 43 Cents of land in Survey No.900/2 of Kumbalanghi Village. There is no dispute that the land of the petitioner is suitable for pokkali ``` WP(C) NO. 26155 OF 2022 ``` ``` 6 ``` cultivation. The petitioner is strengthening the bund using the soil from the fields to facilitate pokkali cultivation as well as aquaculture. 12. The respondents would submit that the petitioner is taking soil from the paddy field to construct new bunds. If an agriculturist strengthens the existing bunds or constructs new bunds in his land for facilitating aquaculture or agriculture, that cannot be an offence under the Kerala Conservation of Paddy Land and Wetland Act, 2008 or the Rules made thereunder, as long as the petitioner is not removing the soil for commercial exploitation. 13. In the present case, the petitioner would state that the soil being taken is only for strengthening bunds. Strengthening of bunds is highly necessary to protect agricultural as well as aquacultural activities. This Court does not find any reason to disbelieve the petitioner. ``` WP(C) NO. 26155 OF 2022 ``` ``` 7 ``` 14. In the circumstances, this Court is of the firm opinion that Ext.P3 Stop Memo cannot stand the scrutiny of law. Therefore, Ext.P3 is set aside. The writ petition is disposed of as above. sd/- **N.NAGARESH JUDGE** hmh ``` WP(C) NO. 26155 OF 2022 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 26155/2022`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE PARTITION DEED NO. 54/1982 OF KOCHI, SRO DATED 04.01.1982 Exhibit P2TRUE COPY OF THE PHOTOGRAPH SHOWING THE BAMBOO LOGS AND NETS STACKED FOR BARRICADE FORMATION FOR CONSTRUCTING BUNDS. ``` - **`Exhibit P3 TRUE COPY OF THE STOP MEMO ISSUED BY THE 3RD RESPONDENT, DATED 16/07/2022`** - **`Exhibit P4 TRUE COPY OF THE APPLICATION MADE BY THE PETITIONER ON 24/07/2022 BEFORE THE 2ND RESPONDENT TO SET ASIDE THE STOP MEMO ISSUED BY THE 3RD RESPONDENT, DATED 16/07/2022.`** - **`Exhibit P5 TRUE COPY OF THE RECEIPT OF ACKNOWLEDGEMENT ISSUED BY THE 2ND RESPONDENT, DATED 25/07/2022`** ``` RESPONDENT EXHIBITS EXHIBIT R4(a)TRUE COPY OF LEASE AGREEMENT EXHIBIT R4(b)TRUE COPY OF MINUTES ISSUED BY THE SECRETARY,KUMBALANGHI GRAMA PANCHAYATH DATED 29.06.2022 ```