High Court of KeralaSingle JudgeDisposed of with directions to the 5th responde...

P. Damodharan v. Kayamkulam Municipality and others

Case / Petition Number:WP(C) No.38911 of 2017

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. V. Kunhikrishnan
Judgment Date
2024-05-31
Court Decision / Holding
The petition was disposed with directions: the 5th respondent is to consider Ext.P3 and pass appropriate orders after hearing the petitioner and the 4th respondent within three months of receipt of the representation, in accordance with law. All contentions are kept open for subsequent action, and the District Collector is free to pass orders as per law. The court did not decide the merits of the case.
Final Disposition
Disposed of with directions to the 5th respondent to decide Ext.P3 after hearing within three months; contentions open for further action.

Parties to the Case

Appellants / Petitioners

  • P. Damodharan

Respondents

  • Kayamkulam Municipality
  • Local Level Monitoring Committee Kayamkulam Municipality
  • The Tahsildar Karthikappally Taluk
  • Dr. Resmi R Nair
  • The District Collector Alappuzha

Legal Representation & Advocates

Counsels for Petitioners

  • • R. Rajasekharan Pillai
  • • Sabina Jayan
  • • Dr. Sherine Joseph

Counsels for Respondents

  • • Raya Shenoi
  • • A. Shafeek
  • • T. R. Rajan
  • • R. Jayaram Das Rajan
  • • T R

Case Synopsis & Summary

The petitioner, P. Damodharan, a resident of Pathiyoor Village, Alappuzha, filed this writ petition challenging the Kayamkulam Municipality’s alleged intention to grant a license to the 4th respondent to reclaim a pond on Re-Sy. No. 91/130, Pathiyoor Village, Karthikappally Taluk. The petition contends that filling the pond would adversely affect local ecology and wells, and would violate the Kerala Paddy and Wet Land Conservation Act, 2008. The background includes the 4th respondent beginning reclamation work, a stop memo by the Village Officer, and a compromise decree in O.S. No.101/2015. The 3rd respondent’s statement indicates that the land is classified as dry land in the BTR and not in the Data Bank, yet unauthorized reclamation of Nilam (wetland) would be contrary to the Act and requires action by the competent authorities, including the LLMC and the District Collector. The 5th respondent was directed to consider Ext.P3 after hearing the petitioner and the 4th respondent, and to pass orders within three months from receipt of the representation. The court clarified that it has not decided the matter on merits and that the District Collector is free to pass orders in accordance with law. The petition was disposed of with directions, emphasizing a cautious balance between development permissions and wetland protection until formal orders are issued.

Provisions of Law Cited

Kerala Paddy and Wet Land Conservation Act, 2008

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued that granting a license to reclaim the pond would violate the Kerala Paddy and Wet Land Conservation Act, 2008, and harm ecology, wells, and the local environment. Reliance was placed on Ext.P2 (Village Officer report) and Ext.P3 (representation to the 5th respondent). The petitioner contended that even if compromise was recorded in O.S.101/2015, it did not authorize unauthorized reclamation; the petition sought mandamus to restrain licensing and protect wetlands.

Contentions of Respondents

The 4th respondent contended that construction was completed with the necessary permits, and the matter could be decided by the competent authorities. The 3rd respondent’s affidavit acknowledged dry land classification in the BTR and not in the Data Bank but emphasized that illegal reclamation of Nilam (wetland) would violate the Act and should be addressed by the relevant authorities. The 5th respondent (District Collector) was urged to evaluate Ext.P3 per law, with hearing and due process; the LLMC and District Collector were to determine the legal position, including whether the land is paddy land per Ext.R4(a).

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Ajithkumar K.V. v. Vinod Kumar and others2016 (1) KHC 477Mentioned OnlyPetitioner relied on it; no explicit application or discussion by the court in the judgment.
Asma V. District Collector, Thrissur and others2015 KHC 2389Mentioned OnlyCited by petitioner; no detailed analysis or application by the court in the judgment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 31[ST] 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 31[st] 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 1[st] respondent not to issue license to the 4[th] 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 4[th] 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 W.P (C) No.38911 of 2017 3 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 4[th] 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 1[st] 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 W.P (C) No.38911 of 2017 4 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 4[th] respondent submitted that the suit was disposed based on a compromise and the 4[th] 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_ W.P (C) No.38911 of 2017 5 _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 Act2008. 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 4[th] 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).**_ W.P (C) No.38911 of 2017 6 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 4[th] 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 5[th] respondent. Therefore, this writ petition is disposed of with the following directions:- 1) The 5[th] respondent is directed to consider and pass appropriate orders in Ext.P3, after giving an opportunity of hearing to the petitioner and the 4[th] respondent, as expeditiously as possible, at any rate, within three months from the date of receipt of the representation. W.P (C) No.38911 of 2017 7 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 5[th] respondent. Sd/- **P.V.KUNHIKRISHNAN JUDGE** bng W.P (C) No.38911 of 2017 8 ## **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** W.P (C) No.38911 of 2017 9 **DATED 01.06.2017** **EXHIBIT R4(K)** **EXHIBIT R4(I)** **EXHIBIT R4(M)** **EXHIBIT R4(N)** **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.** **TRUE PHOTOCOPY OF OCCUPANCY CERTIFICATE DATED 22.05.2018, FOR THE NEW HOUSE** **TRUE PHOTOCOPY OF DEMAND NOTICE DATED 04.06.2018 FOR TAX FOR THE NEW HOUSE** **TRUE PHOTOCOPY OF TAX RECEIPT NO.91544 DATED 04.06.2018 FOR TAX PAID FOR THE NEW HOUSE**