M.S. Sivadasan and Annie Jose v State of Kerala, Nayarambalam Grama Panchayath and Finance Standing Committee, Nayarambalam Grama Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 12TH DAY OF OCTOBER 2015/20TH ASWINA, 1937** **WP(C).No. 26137 of 2012 (N) ----------------------------** **PETITIONERS:** **-----------** **1. M.S.SIVADASAN, AGED 59 YEARS S/O. SUBRAMANIAN, MALIAKKAT HOUSE, NEDUNGAD NAYARAMBALAM, (SECRETARY KUTHRATHODU NELLULPADAKA KARSHAKA SANGHAM, NEDUNGAD NAYARAMBALAM).** **2. ANNIE JOSE, AGED 62 YEARS S/O M.V.JOSE, MADATHIPARAMBIL HOUSE, NAYARAMBALAM.** **BY ADVS.SRI.K.S.MADHUSOODANAN** **SRI.THOMAS CHAZHUKKARAN SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR SRI.K.S.MIZVER** **RESPONDENTS:** - **-----------** ## **1. STATE OF KERALA** **TO BE REPRESENTED BY SECRETARY** **LOCAL SELF GOVERNMENT, GOVERNMENT OF KERALA THIRUVANANTHAPURAM-695001.** **2. NAYARAMBALAM GRAMA PANCHAYATH** **NAYARAMBALAM, REPRESENTED BY ITS SECRETARY.** **3. FINANCE STANDING COMMITTEE NAYARAMBALAM GRAMA PANCHAYATH NAYARAMBALAM-682504** **REPRESENTED BY CHAIRMAN.** **R2 BY ADV. SRI.LAL K.JOSEPH** **R2 BY ADV. SRI.A.A.ZIYAD RAHMAN** **R2 BY ADV. SRI.P.MURALEEDHARAN (THURAVOOR) R2 BY ADV. SRI.V.S.SHIRAZ BAVA** **R1 BY GOVERNMENT PLEADER SRI.THOMAS JOHN AMBOOKEN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-10-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C).NO.26137 OF 2012** ## **APPENDIX** **PETITIONERS' EXHIBITS :** **EXHIBIT P1- PHOTOCOPY OF THE AGREEMENT DATED 23-11-98.** **EXHIBIT P2- PHOTOCOPY OF THE ROUGH SKETCH.** **EXHIBIT P3- PHOTOCOPY OF THE G.O.(MS)NO. 2816/2012/LSGD DATED 9-10-2012.** **EXHIBIT P4- PHOTOCOPY OF THE LAST AGREEMENT DATED 6-12-11 FOR THE PERIOD FROM 15-11-2011 TO 14-4-12.** **EXHIBIT P5- PHOTOCOPY OF THE ORDER OF THE 2ND RESPONDENT BEARING NO. A3-74/2009 DATED 30-12-12.** **EXHIBIT P6- PHOTOCOPY OF THE RECEIPT BEARING NO. A3/8453/12 DATED 31-10-12.** **RESPONDENTS' EXHIBITS :** **EXHIBIT R2(1)-COPY OF THE SHOW CAUSE NOTICE DATED 22.11.2012** **EXHIBIT R2(2)-COPY OF THE COMMUNICATION DATAED 23.11.2012** **EXHIBIT R2(3)-COPY OF THE DEMAND DRAFT RS.17,400/-** **EXHIBIT R2(4)-COPY OF THE AGREEMENT DATED 16.11.2012** **EXHIBIT R2(5)-COPY OF THE NOTICE DATED 23.11.2012** **EXHIBIT R2(6)-COPY OF REPLY DATED 26.11.2012** **EXHIBIT R2(7)-COPY OF THE COMMUNICATION DATED 20.11.2012** **EXHIBIT R2(8)-COPY OF THE AGREEMENT DATED 01.11.2011.** **//TRUE COPY//** **P.A.TO JUDGE** **sm** ## **SHAJI P. CHALY, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **W.P.(C). No. 26137 of 2012** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of October, 2015 ## **JUDGMENT** 1[st] Petitioner is the Secretary of Nellulpadaka Karshaka Sangham and the 2[nd ] petitioner is one among the 23 owners of paddy field admeasuring 23 acres and 67 cents lying contiguously. Learned counsel for the petitioner now submits that the Padasekhara Sangham, herein after called Sangham, is presently a registered body under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act ( TCLSCS Act). This writ petition is filed seeking to quash Exts. P5, P10 and P11 orders passed by the 2[nd] respondent, by which petitioners/padasekhara sangham were directed to remove the sluice fixed on the southern most end of the water channel catering the needs of the agricultural activities carried on in the entire padasekharam( a group of paddy fields). 2. Brief facts for the disposal of the writ petition are as follows: 3. Petitioners and the Sangham are carrying on, paddy W.P.(C).No.26137 of 2012 :2: cultivation from 15[th] April to 14[th] November every year and from 15[th] November to 14[th] April of the next year fish farming. Petitioners and the Sangham are dependent on a water channel having an extent of 2 acres and 32 cents, enclosed into the paddy field for regulating the fish farming and paddy cultivation. From 1975 onwards, there is an agreement between 2[nd] respondent and the Karsaka sangham in relation to prawn farming including the property comprised of the water channel. Ext.P1 dated 23.11.1998 is the agreement entered into by the Sangham with the 2[nd] respondent and Ext.P2 is the sketch of their property. As per Ext.P2 sketch, a sluice is installed at the southern end of the water channel and from where the water is regulated into and out of the paddy field, operated by the Karshaka Sangham as a group. 4. Respondent No.2 demanded 5% increase of lease amount for the water channel used by the Sangham for fish farming. But the Sangham agreed to pay the lease ## W.P.(C).No.26137 of 2012 :3: rent in accordance proportionate with the extent of property held by each persons of the Sangham. On 04.12.2008, 2[nd] respondent passed resolution No.16 recommending the enhancement of lease rent per person, proportionate to the area and thereby the lease rent was fixed accordingly. The said resolution was passed by the 2[nd] respondent subject to the sanction from the 1[st] respondent. Accordingly Panchayath forwarded the same to Government. Since the Government did not pass any order on the recommendations so made, WPC 30357/2011 was filed by petitioners and by judgment dated 19.06.2012, respondent No.1 was directed by this Court to consider the proposal so put forth by the Panchayath as per resolution No.16. Thereupon, Government by Ext.P3 order, dated 09.10.2012, approved the proposal put forth by the Panchayath, as per the aforesaid resolution. 5. It is the further case of the petitioner that Sangham has entered into Ext.P4 agreement dated W.P.(C).No.26137 of 2012 :4: 06.12.2011 with 3[rd] parties, for carrying on the fish farming for a total consideration of Rs.1,42,500/- for the period, 15.11.2011 to 14.04.2012. 6. However, Ext.P5 order dated 30.10.2012 was passed by the Secretary of 2[nd] respondent Panchayath following a resolution of the finance standing committee of the 2[nd] respondent, dated 31.10.2012, whereby the Sangham was directed not to operate the sluice without the prior permission of the Panchayath. Thereupon petitioners have applied for a copy of the resolution, but while so, Ext.P8 notice dated 05.04.2013 was issued by the 2[nd] respondent to the Sangham to remove the sluice, after the fishing operation is over, on 15.04.2013. To Ext.P8 notice, Sangham filed Ext.P9 reply dated 15.09.2013 stating that the sluice cannot be removed, since the same is a necessary requirement to carry on the operations in the Padasekharam. Thereupon, 2[nd] respondent issued Ext.P10 order dated 02.05.2013, to the 1[st] petitioner directing to remove the sluice within three W.P.(C).No.26137 of 2012 :5: days thereafter. 7. It is contended by the petitioners that Ext.P10 decision was taken by the 2[nd] respondent on the basis of Ext.P11 resolution passed by the Panchayath dated 18.04.2013 and that too, after rejecting the reply filed by the petitioner as per Ext.P9. It is thus challenging Exts. P5, P10 and P11 orders of the Panchayath, this writ petition is field. 8. Respondent Nos.2 and 3 have filed counter affidavit contending that Exts. P5, P10 and P11 orders are passed by the Panchayath in accordance with law and as per the requirements provided under the provisions of the Kerala Panchayath Raj Act. Learned counsel for the Panchayath has contended that since the Karshaka Sangham has let out the property by receiving huge amounts 3[rd] parties, Panchayath is entitled to collect the lease rent in accordance with the terms of such 3[rd] party lease agreement entered into by the Sangham. It is also contended that the exclusion ## W.P.(C).No.26137 of 2012 :6: contained under Section 218 of the Panchayath Act will not come into play for the reason that the water channel is not an agricultural property and therefore the exclusion clause as per the proviso cannot be brought into force and nonsuit the Panchayath. 9. I heard the learned Government Pleader also, who contended that the question relating to the vesting of the water channel is a subject matter to be considered by the respective department of the 1[st] respondent and having not made either the revenue or the Agricultural department a party to the writ petition, the writ petition is not maintainable. 10. Having considered the rival submissions and evidence on record, I am of the considered opinion that the question now raised pursuant to the impugned orders can be resolved by resorting to section 218 (1) of Kerala Panchayath Raj Act 1994 (herein after call the Act 1994). Section 218 of the Act deals with the vesting of water courses, water channels etc etc.,with the Panchayath, and W.P.(C).No.26137 of 2012 :7: which according to me takes in almost all water bodies that is situated within the Panchayath area. Sole exclusion to Section 218(1)k of Act 1994 is the proviso provided thereunder which reads as follows: "Provided that nothing contained in this sub-section shall apply to any work which is or is connected with a work or irrigation or to any adjacent land appertaining to any such work". 11. On a reading of the proviso, it is clear that a particular kind of water channel in connection with an irrigation work, is excluded from the Section 218(1), which, according to this Court is an exception carved out from the main Section. Therefore it thus means that, the type of water channel/water source exerted under the proviso will not vest in the Panchayath. Further, such a proviso was provided to Section 218(1) to take care of the agricultural and farming activities taking place within the state and with the avowed object and intention of bringing the exclusion so made within the control of the 1[st] respondent. Taking this Court to proviso to Section W.P.(C).No.26137 of 2012 :8: 218(1), learned counsel for the petitioner contended that Panchayath did not have any power to issue Exts. P5, P10 and P11 orders in view of the said proviso. In order to substantiate the contentions so raised, learned counsel has invited my attention to a Division Bench of this court in **Kodamthuruth Panchayath v. Vasupillai** reported in **[1989 (1) KLT 21]** and specifically to paragraphs 2 and 3. Therein, the provision considered by this Court was Section 82 of the erstwhile Panchayath Raj Act and on a perusal of the same, as well as the proviso, they are similar to Section 218(1) and the proviso under the Act 1994. Therein this Court appreciating the relevant provisions had come to a conclusion that, in view of the exclusion, Panchayath did not have power to rule upon anything connected with the proviso to the main Section. Learned counsel for the petitioner has invited my attention also to the judgment of this Court in **Kalatharachira Padaseskaram v. Chellanam Gramapanchayath** reported in **[2009 (4)KLT 336]** ## W.P.(C).No.26137 of 2012 :9: with specific reference to paragraphs 8, 9 and 10 of the said judgment. A Learned Single Judge of this Court followed the judgment of Kodamthuruth Panchayath cited supra, and has held in Para 10 that the petitioner therein is entitled to succeed. In my view, in both the judgments referred supra, the question considered was with regard to exclusion clause contained under proviso to the relevant Sections under the old and new Act. So also learned counsel for the petitioner has invited my attention to Section 2(5) of the Travancore-Cochin Irrigation Act 1956, herein after called, 'Act' 1956, by which irrigation work is defined as follows: “Irrigation work includes”- (a) all canals, channels, reservoirs and tanks which are intended or which are may be used for the supply and storage of water for agricultural purposes; (b) all works, embankments, structures, supply and escape channels connected with such canals, channels reservoirs or tanks; - (c) all water, courses which are supplied with W.P.(C).No.26137 of 2012 :10: water from such canals, channels reservoirs or tanks; (d) all drainage works, that is to say, canals, channels, escape channels from a canal, channel, reservoir or tank, dams, weirs, embankments, sluices, groynes or other works for the protection or benefit of agricultural land or for the reclamation of kole lands, kayi lands, kari lands, or such other lands; and (e) all lands occupied by the [State Government] for the purposes of such canals, channels, reservoirs, tanks and all buildings machiner, fencesgates and other erections occupied by or belonging to the [State Government] upon such lands. 12. Going by the said provision it can be seen that irrigation works includes all canals, channels, reservoirs and tanks which are intended or which are or may be used for the supply and storage of water for agricultural purposes. Therefore, it can be seen that by virtue of the proviso to Section 218(1) of Act 1994, the water body excepted is taken care of under Act 1956 supra, which W.P.(C).No.26137 of 2012 :11: thus means, such water bodies are under the control of the 1[st] respondent in exclusion to the Panchayath. Therefore, relying solely on the relevant orders passed by the Panchayath, this Court can safely enter into a conclusion that the property enjoyed by the petitioner is utilised for the purpose of agriculture and the water channel depended by the petitioners is the water channel used for the purpose of agriculture and therefore the same will come under the term irrigation work mentioned under the proviso to Section 218(1) and also contained under the Travancore- Cochin Irrigation Act 1956. Now the question is whether the Panchayath had a right to direct the petitioners or the Padasekhara Sangham to remove the sluice. Division Bench of this Court in the case of Kodamthuruth Panchayath, supra has clearly held that a sluice will come under the term irrigation work. Therefore, on a cumulative reading of Section 218(1) read with proviso thereto and Section 2(5) of the Travancore-Cochin Irrigation act 1956, it is categorically W.P.(C).No.26137 of 2012 :12: clear that petitioners are entitled to the benefit containedunder the proviso to Section 218(1) of the act 1994. 13. In that view of the matter, I am of the considered opinion that Exts. P5, P10 and P11 orders passed by the Panchayath are not sustainable under law. Therefore, I set aside exts.P5, P10 and P11 orders passed by the 2[nd] and 3[rd] respondents. Even though other questions are raised by the learned Government Pleader as well as the learned counsel for the Panchayath during the course of arguments, regarding vesting of the excluded water body under the proviso, I leave open such questions, since they are not the subject matter of this writ petition. Writ petition is allowed accordingly. Sd/- **SHAJI P. CHALY JUDGE** sm/