Satheeshkumar S.V. v. Village Officer, Kainakari Village; Revenue Divisional Officer, Alappuzha; District Collector, Alappuzha; State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM TUESDAY, THE 19[TH] DAY OF DECEMBER 2023 / 28TH AGRAHAYANA, 1945 WP(C) NO. 22917 OF 2023`** ## **`PETITIONER:`** ``` SATHEESHKUMAR S.V., AGED 44 YEARS S/O.VASUDEVAN 'NALUKOOTAM' CHATHURTHIAKIRI P.O. ALAPPUZHA DISTRICT, PIN - 688502 ``` ``` BY ADVS. M.SASINDRAN P.K.SUBHASH ``` ## **`RESPONDENTS:`** - `1 THE VILLAGE OFFICER, KAINAKARI VILLAGE KAINAKARI SOUTH, ALAPPUZHA DISTRICT, PIN - 688501` - `2 THE REVENUE DIVISIONAL OFFICER / SUB COLLECTOR , ALAPPUZHA, ALAPPUZHA DISTRICT, PIN - 688001` - `3 THE DISTRICT COLLECTOR ALAPPUZHA, PIN - 688001` - `4 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT REVENUE DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001` ``` BY ADV.RIYAL DEVASSY, GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.22917/2023 ``` ``` 2 ``` ## **JUDGMENT** _Dated this the 19[th] day of December, 2023_ Petitioner has approached this Court aggrieved by Exts.P3 and P7 orders dated 17.01.2023 and 01.06.2023 so far it prevents the petitioner from constructing a bund protecting a pond situated in the property. 2. Brief facts of the case are as follows: Petitioner is the owner and in possession of an extent of 7.25 Ares of garden land and 9.55 Ares of 'kulam' (pond) adjacent to it, which was purchased by the petitioner as per Ext.P1 sale deed. Ext.P2 tax receipt shows that 9.55 Ares is lying as a pond and 7.25 Ares is garden land and the total extent of land is 16.80 Ares. The contention of the petitioner is that the pond does not have proper outer bunds and therefore, the water containing fertilizers etc. flows to the pond from the nearby paddy field and that affects the fish wealth in the pond and on certain occasions, the water from the pond used to flow to the nearby paddy land badly affecting the paddy cultivation. Therefore, for the purpose of protecting the paddy land as well as the pond, it has ``` WP(C) NO.22917/2023 ``` ``` 3 ``` become necessary to construct an outer bund and the petitioner started construction of the outer bund of the pond. Thereupon, Ext.P3 stop memo dated 17.01.2023 was issued by the Village Officer concerned stating that conversion is made using gravel and the same should be removed within 48 hours. Petitioner contends that the construction of a bund is permissible as per the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as 'Act, 2008') and therefore, issuance of Ext.P3 is absolutely illegal and arbitrary. Thereupon, the petitioner preferred Ext.P5 representation before the second respondent – the Revenue Divisional Officer stating all the facts and praying for grant of permission for the construction of the bund by withdrawing Ext.P3 order. Along with the said representation, the petitioner has also produced Ext.P4 certificate issued from the ‘padasekharasamithi’ of the nearby paddy land stating that they have no objection in constructing a bund around the pond, for protecting the same. As no action was taken on Ext.P5, the petitioner was constrained to approach this ``` WP(C) NO.22917/2023 ``` ``` 4 ``` Court by filing W.P.(C)No.7135 of 2023 which was disposed of as per Ext.P6 judgment directing the second respondent – Revenue Divisional Officer to consider Ext.P5 request made by the petitioner within a period of three weeks from the date of receipt of a copy of the judgment. Pursuant to the direction issued in Ext.P6 judgment, the Revenue Divisional Officer has rejected the application as per Ext.P7 order dated 01.06.2023. It is aggrieved by the same that the petitioner has approached this Court. 3. A perusal of Ext.P7 order would reveal that the Deputy Director of Fisheries has reported that the construction of a bund is absolutely necessary, but the same could be constructed without bringing gravel from outside. In spite of the said report, by Ext.P7 order, Ext.P3 stop memo issued by the Village Officer was upheld and the request made by the petitioner was rejected. It is contended that Ext P3 order is initiated as per the provisions of Section 12 of the Act, 2008 as the activities undertaken by the petitioner is alleged to be in violation of Section 3 of the Act, 2008 and the first respondent has no ``` WP(C) NO.22917/2023 ``` ``` 5 ``` authority to issue an order in the nature of Ext P3. Section 3 of the Act, 2008 reads as follows : _“_ _**3. Prohibition on conversion or reclamation of paddy land** : (1) On and from the date of commencement of this Act, the owner, occupier or the person in custody of any paddy land shall not undertake any activity for the conversion or reclamation of such paddy land except in accordance with the provisions of this Act._ _-_ (2) _Nothing contained in sub section (1) shall apply to the cultivation of any intermediary crops that are cultivated without changing the ecological nature of that paddy land or the strengthening of the outer bunds for protecting the cultivation.” (underline supplied)_ A perusal of Section 3(1) would reveal that the owner, occupier or the person in custody of any paddy land shall not undertake any activity for the conversion or reclamation of such paddy land except in accordance with the provisions of this Act. Section 3(2) mandates that nothing contained in sub-section (1) shall apply to the cultivation of any intermediary crops that are cultivated without changing the ecological nature of that paddy land or the strengthening of the outer bunds for protecting the cultivation. Based on this, the petitioner would submit that ``` WP(C) NO.22917/2023 ``` ``` 6 ``` for invoking the power under Section 12 of the Act, 2008, there should be a violation of Section 3 or 11 of the Act, 2008 and in the present case, there is no violation of the said Section inasmuch as what is being done by the petitioner is the strengthening of the outer bund of the pond which is very much permitted as per Section 3(2) of the Act, 2008. The definition of paddy land as provided under Section 2(xii) of the Act, 2008 reads as follows : _“_ _**2(xii)** “Paddy land” means all types of land situated in the State where paddy is cultivated at least once in a year or suitable for paddy cultivation but uncultivated and left fallow, and includes its allied constructions like bunds, drainage channels, ” ponds and canals._ _(underline supplied)_ As per the said Section, paddy land includes land suitable for paddy cultivation and includes its allied construction like bunds, drainage channels, ponds and canals. The subject matter in issue is the construction of an outer bund for a pond. 4. This Court in **Shaju.C.J. v. State of Kerala (2022 KHC 903)** while considering a similar issue has held that digging of a well or a pond inside a paddy land would not amount to conversion or reclamation of paddy land and ``` WP(C) NO.22917/2023 ``` ``` 7 ``` that the provisions of Act, 2008 also does not speak out any prohibition of digging of well. It was further held that the definition of paddy land as given in Section 2(xii) of the Act would only suggest that the paddy land includes ponds and canals. The request made by the petitioner is to strengthen the outer bund of the pond, so that the petitioner could undertake fish cultivation in the said pond. As stated earlier, Section 3(2) permits any cultivation of any intermediary crops that are cultivated without changing the ecological nature of that paddy land. Intermediary crops have been defined in Section 2(ix) of the Act, 2008 as follows : _“_ _**2(ix)** “intermediary crop” means a short term crop, cultivated in between two paddy cultivation periods in an interchangeable manner according to the ecological nature of the paddy land like vegetables, pulses, plantain, fsh etc.”_ _(underline supplied)_ Going by the definition of intermediary crops, fish cultivation is also included. So going by the definition of Paddy land as given in Section 2(xii), Section 3 and the definition of intermediary crops as given in Section 2(ix) of the Act, 2008, it is clear that the petitioner is entitled to do ``` WP(C) NO.22917/2023 ``` ``` 8 ``` fish cultivation in the pond in question and that he is legally entitled to strengthen the outer bund for protecting the cultivation. 5. The question to be considered is as to whether the said construction of the outer bund will result in changing the ecological nature of the paddy land. This Court in **Wonderla Holidays Ltd. v. Revenue Divisional Officer, Muvattupuzha and others [2021(5) KHC 754]** in paragraphs 11 and 13 held as follows: _“11. The land is admittedly a paddy land as per the Revenue records and has been included in the Data Bank. It is therefore not an unnotified land to fall under S.27A of the Act, 2008, Fish farming is permissible as an intermediary crop in paddy land, as per the Act, 2008 As per S 2(ix) of the Act, "intermediary crop means a short term crop, cultivated in between two paddy cultivation periods in an interchangeable manner according to the ecological nature of the paddy land like vegetables, pulses, plantain, fish, etc. Therefore, fish cultivation will fall within the ambit of S.2(ix)._ _13. S.2 (iii) of the Act defines "conversion" to mean a situation whereby, land that has been under paddy farming and its allied constructions like drainage channels, ponds, canals, bunds and ridges are put to use for any other purpose. Construction of a motor house which is necessary for paddy and fish cultivation, by itself would not amount to land being put to use for any other purpose, attracting the general prohibition under S.3 of the Act, 2008.”_ ``` WP(C) NO.22917/2023 ``` ``` 9 ``` 6. This Court in **Mariadas v. State of Kerala, [2020 (6) KLT 49]** has held that removal of mud and slurry or the strengthening of the bund for the purpose of carrying out pokkali rice cultivation will not violate any of the provisions of the Act, 2008. Paragraph 8 of the judgment reads as follows : _“8. Conversion' under S.2(iii) of the Act has been defined to 'mean the situation whereby, land that has been under paddy farming and its allied constructions like drainage channels, ponds, canals, bunds and ridges are put to use for any other purpose. 'Reclamation' is defined under S.2(xv) to mean such act or series of acts whereby a paddy land or a wetland as defined under the Act is converted irreversibly and in such a manner that it cannot be reverted back to the original condition by ordinary means. However, sub-section (2) of S.3 states the prohibition shall not apply to the cultivation of any intermediary crops that are cultivated without changing the ecological nature of that paddy land or the strengthening of the outer bunds for protecting the cultivation. Taking note of the facts of the instant case in its perspective, what is obvious is that the attempt of the petitioner was to prepare the land for Pokkali rice cultivation and that too without changing the ecological nature of the land. Strengthening of outer bunds for protecting the cultivation will also not attract the prohibition. I am of the considered opinion that removal of mud and slurry or the strengthening the bund for the purpose of carrying out pokkali rice cultivation will not violate any of the provisions of Act 28 of 2008. However, as rightly submitted by the learned Government Pleader the acts which are being carried out by the petitioner will have to be strictly monitored.”_ ``` WP(C) NO.22917/2023 ``` ``` 10 ``` 7. The learned Government Pleader would contend that what has been attempted now is to bring gravel from outside and construct an outer bund around the pond and it will definitely affect the ecological nature of the paddy land. The specific contention of the petitioner as is discernible from Ext.P7 is that it is practically impossible to use the slurry inside the pond for the construction of the bund and that is the reason why gravel was brought from outside for the construction of the said bund. A perusal of Ext.P7 also would show that even the Deputy Director of Fisheries also reported that the construction of a bund is absolutely necessary. In view of the above facts and circumstances, I am of the opinion that the petitioner is entitled to strengthen the outer bund of the pond, so as to enable him to undertake fish cultivation. 8. Yet another aspect to be noted is the directions issued as per Ext.P3. Ext.P3 is an order issued invoking the powers under Section 12 and a perusal of Ext.P3 would reveal that a direction has been issued to restore the property to its original position. Petitioner submits that the ``` WP(C) NO.22917/2023 ``` ``` 11 ``` direction in Ext.P3 is beyond the power of the Village Officer inasmuch as such power could be exercised only by the third respondent District Collector invoking the powers under Section 13 of the Act, 2008. This Court in **Saniya v. State of Kerala, [2020 (4) KLT 718]** has held that the power under Section 13 of the Act, 2008 could be exercised only by the District Collector concerned and not by any other officer. Section 12 gives ample power to the authorised officers which include the Village Officer to take action whenever there is violation of the provisions of the Act, 2008 or to prevent any commission of the offence and Section 12 specifically empowers the Village Officer or any other officer referred to therein to enter any premises or any place for inspection or investigation into the alleged offence under this Act and require any person to stop any act in contravention of Section 3 or Section 11 of the Act, 2008. Section 12 also provides for other powers upon the authorised officers. But, what has been directed as per Ext.P3 order is to restore the property to its original position, which cannot be done by the authorised officers ``` WP(C) NO.22917/2023 ``` ``` 12 ``` as per Section 12 of the Act, 2008. Section 13 of the Act, 2008 empowers the District Collector to take appropriate action as he deems fit to direct to restore any paddy land or wet land reclaimed, violating the provisions of the Act, 2008 and realise the cost incurred in this regard from the holder or occupier of the said paddy land or wet land, after affording an opportunity of being heard to the violator. Therefore, the power to direct the property to be restored to the original position is only on the District Collector, which could be invoked only after affording an opportunity of being heard to the alleged violator. Therefore, I hold that the direction in Ext.P3 to restore the property to the original position is beyond the power of the Village Officer and therefore, is absolutely arbitrary and unjust. 9. The question now remains is as to whether the bringing of gravel from outside will affect the ecological nature of the paddy field nearby. The Deputy Director of Fisheries had recommended that the construction of the outer bund of the pond is absolutely necessary, but that could be undertaken without bringing gravel from outside. ``` WP(C) NO.22917/2023 ``` ``` 13 ``` If sufficient slurry/sludge is not available in the pond to construct a bund, the petitioner should be permitted to construct the bund by using materials brought from outside, but authorities could take steps to ensure that the construction shall not result in changing the ecological nature of the paddy land. 10. Therefore, I am of the opinion that the matter requires reconsideration. Exts.P3 and P7 orders are set aside and the Writ petition is disposed of with the following directions : - (i) The second respondent shall reconsider Ext P5 request made by the petitioner. The second respondent shall conduct an inspection of the site through the Village Officer and the Deputy Director of Fisheries or any officer authorised by him, with notice to the petitioner and suggest the method by which the outer bund should be constructed. If sufficient slurry/sludge is not available in the pond, then permission should be granted to the petitioner to construct the outer bund of the pond ``` WP(C) NO.22917/2023 ``` ``` 14 ``` using materials brought from outside. Necessary permission in this regard shall be given by the second respondent for undertaking the construction of the outer bund of the pond within a period of three weeks from the date of receipt of a copy of the judgment. - (ii) Based on the said direction, the petitioner shall undertake the construction of the outer bund of the pond in the presence of the first respondent – the Village Officer. It is made clear that this Court has granted permission only for the construction of the outer bund of the pond and the first respondent shall see that no reclamation of paddy land or of the pond is undertaken in the guise of construction of the outer bund of the pond as requested by the petitioner. Sd/- **VIJU ABRAHAM JUDGE** csl ``` WP(C) NO.22917/2023 ``` ``` 15 ``` ## **`APPENDIX OF WP(C) 22917/2023`** ``` PETITIONER’S EXHIBITS ``` - `Exhibit P1` - `A TRUE COPY OF THE SALE DEED DATED 17-05-2022 EXECUTED IN FAVOUR OF THE PETITIONER` - `Exhibit P2 TRUE COPY OF THE TAX RECEIPT EVIDENCING PAYMENT OF BASIC TAX, DATED 27-05-2022` - `Exhibit P3 A TRUE COPY OF THE ORDER NO.01/2023 (SR) DATED 17-01-2023 OF THE VILLAGE OFFICER, KAINAKARI.` - `Exhibit P4 A TRUE COPY OF THE LETTER DATED 1801-2023 ISSUED BY THE` - ``PADASEKHARASAMITHI', 'KADUKAYYAR PADASEKHARAM'` - `Exhibit P5 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE REVENUE DIVISIONAL OFFICER, ALAPPUZHA, DATED 21-01-2023` - `Exhibit P6 A TRUE COPY OF THE JUDGMENT IN WPC. NO. 7135 IN 2023 DATED 02.03.2023` - `Exhibit P7 A TRUE COPY OF THE ORDER NO. DD.DSG2191/2023 DATED 01.06.2023 OF THE 2ND RESPONDENT.` - `Exhibit P8 PHOTOGRAPH SHOWING THE CONSTRUCTION OF OUTER BUND` - `Exhibit P8(a) PHOTOGRAPH SHOWING THE CONSTRUCTION OF OUTER BUND`