V.J. Wilson v. Local Level Monitoring Committee, Ezhuppunna Grama Panchayath; Tahsildar (LR), Cherthala; Ezhuppunna Grama Panchayath; Village Officer, Ezhuppunna Village Office

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 20[TH] DAY OF JUNE 2022 / 30TH JYAISHTA, 1944** ## **W.P.(C) NO.15131 OF 2022** ## **PETITIONER:** **V.J. WILSON, AGED 67 YEARS, S/O JACOB, VELIKKAKATH HOUSE, EZHUPUNNA, CHERTHALA, REPRESENTED BY POWER HOLDER P.V.TOMY, SLO P.T.VARGHESE, AGED 66 YEARS, RESIDING AT PAZHANGATT HOUSE, ERAMALLUR.P.O., CHERTHALA, ALAPPUZHA-688 524.** **BY ADVS.P.P.JACOB MARIYAM JACOB** ## **RESPONDENTS:** - **1 THE LOCAL LEVEL MONITORING COMMITTEE, EZHUPUNNA GRAMA PANCHAYATH, EZHUPUNNA-688 537 REPRESENTED BY ITS CONVENER.** - **2 THE TAHSILDAR (LR), TALUK OFFICE, CHERTHALA, ALAPPUZHA-688 524.** - **3 THE EZHUPUNNA GRAMA PANCHAYATH, EZHUPUNNA-688 537 REPRESENTED BY ITS SECRETARY.** - **4 THE VILLAGE OFFICER, EZHUPUNNA VILLAGE OFFICE, EZHUPUNNA, CHERTHALA-688 537.** **BY ADVS.P.SANTHOSH KUMAR (PANAMPALLI NAGAR) R3 K.P.CHANDRASEKHAR** **R1,R2 & R4 SMT.VIDYA KURIAKOSE, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- **W.P.(C) NO.15131 OF 2022** ## **P.V.KUNHIKRISHNAN, J.** **------------------------------------------W.P.(C) No.15131 of 2022 ------------------------------------------Dated this the 20[th] day of June, 2022** ## **JUDGMENT** The above writ petition is filed with the following prayers: - “i. Issue a writ of certiorari or any other writ order or direction calling for the records leading to the issue of Ext.P5 and quash the same. ii. Issue a writ of mandamus or other writ order or direction directing the respondents not to interfere in the construction of ridge (chiravarambu) being done to maintain and separate the boundary from nearby properties in order to conduct paddy cultivation being done by the petitioner in the property covered by Ext.P1 sale deed.” 2. The petitioner is the power of attorney holder of one V.J. Wilson, the title holder of the property covered by Ext.P1 sale deed. According to the petitioner, he is authorised to conduct cultivation of paddy (pokkali) in the property covered by the document. It is the case of the petitioner that on the eastern side of the property, there is -3- ## **W.P.(C) NO.15131 OF 2022** Vemabanatt backwater and on the other three sides, there are paddy fields. According to the petitioner, the entire area is low lying and the construction of ridge is highly necessary around the boundary in order to conduct cultivation of paddy. It is the case of the petitioner that when he made attempt to maintain the ridge (chiravarambu) properly for the cultivation of paddy, the Village Officer issued Ext.P5 order against the very scheme and object of Act 28 of 2008. According to the petitioner, the construction of the petitioner is only within the four corners of the dictum laid by this Court in Ext.P6 judgment. Therefore, Ext.P5 order is illegal is the contention. 3. Heard the counsel for the petitioner, the Government Pleader and the counsel for the 3[rd] respondent. 4. This Court perused Ext.P5 order. Ext.P5 is an order passed by the 4[th] respondent. A perusal of Ext.P5 itself would show that it is passed based on a preliminary inspection. It is stated that, the 4[th] respondent came to know that there is illegal fixing of logs. According to the petitioner, he is entitled to construct such type of ridge in the light of -4- ## **W.P.(C) NO.15131 OF 2022** the judgment of this Court in **Subramonian Namboothiri v. District Collector, Malappuram [2020 (6) KLT 743]** . Paragraphs 3, 4 and 5 of the said judgment is extracted herein:- 3. Section 3 of the Paddy Land prohibits conversion or reclamation of paddy land. Sub-section 3(2) states nothing would apply in Sub-section 3(1) placing prohibition on reclamation of land if such activities are to strengthen the outer-buds for protecting the cultivation. There are no statutory provisions in regard to 'chiravaramba'. The owner of the paddy land can reclaim the paddy land as specified under Section 9 for the limited purpose of putting up a residential building. It is in this background, the alleged widening of the 'chiravarmba' has to be viewed. 4. This Court cannot assume any act of reclamation of existing paddy land not amounting to changing the character of paddy land would attract the prohibition under Section 3 of the Act 28 of 2008. The 'chiravarmba' is used to exist in the paddy land even during olden days to reach the paddy land. Those days there were no motorable or other vehicles taken to the paddy land. By passage of time instead of relying human resources for the movement of paddies, tractors or other vehicles are required to be used. It appears that the petitioner had widened the existing 'chiravarmba' to take vehicles into the paddy land. The original width of 'chiravarmba' was 4 ft. It has -5- ## **W.P.(C) NO.15131 OF 2022** now been enhanced to 10 ft. 5. As seen from the report of the Village Officer and the Agricultural Officer, the act of widening had not adversely affected the paddy land. It is also reported that it has not affected the free flow of the water. It is reported by the Village Officer that this way is essentially used for to reach the paddy land. If any reclamation not affecting the existing paddy land and if it was for the purpose of paddy land, such reclamation cannot come within the prohibition of under Section 3 of the Act. If the reclamation was substantially for the purposes other than for paddy land, necessarily it would attract Section 3 of the Act. It appears that widening the 'chiravarmba' is only for the purpose of paddy cultivation. No doubt, it may be incidentally used for other purposes. The substantial use as seen from the report of the Village Officer and the Agricultural Officer is for the agricultural purposes. Such reclamation will not come within the ambit of Section 3 of the Act. There is no statutory provision for seeking permission for reclamation of any paddy land for the benefit of the paddy land itself. There should have been some statutory provision in the Act to seek prior permission for such activity. In the absence of any statutory provision, any reclamation done for the benefit and use of the paddy land, cannot be brought within the prohibited activities as under Section 3 of the Act. The power of the District Collector under Section 13 would come -6- ## **W.P.(C) NO.15131 OF 2022** into play only when activities carried in contravention of Section 3 of Act.” 5. In the light of the above judgment, the 4[th] respondent has to consider the matter afresh, after inspection of the property, with notice to the petitioner. The 4[th] respondent will inspect the property, with notice to the petitioner and thereafter, will give an opportunity of hearing to the petitioner and will also consider whether the dictum laid down by this Court in **Subramonian Namboothiri's case** (supra) is applicable to the facts and circumstances of the case. Therefore, this writ petition is disposed of with the following directions:- i) The 4[th] respondent is directed to inspect the property in dispute in this case within two weeks from the date of receipt of a copy of this judgment, with notice to the petitioner and to the 3[rd] respondent. ii) After inspection, the 4[th] respondent will give an opportunity of hearing to the petitioner and will consider whether the dictum laid down by this Court in **Subramonian Namboothiri's case** is applicable to the facts and circumstances of the case. -7- ## **W.P.(C) NO.15131 OF 2022** iii) Thereafter, the 4[th] respondent will pass a fresh order in accordance with law. iv) The above exercise will be completed by the 4[th] respondent as expeditiously as possible, at any rate, within one month from the date on which the inspection is conducted. Sd/- **P.V. KUNHIKRISHNAN JUDGE** bpr -8- ## **W.P.(C) NO.15131 OF 2022** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE PHOTOCOPY OF THE SALE DEED 39/18 DATED 6.1.2018 OF THE KUTHIYATHODE SUB REGISTRY OFFICE.** **EXHIBIT P2 TRUE PHOTOCOPY OF THE PLAN DATED 15.2.2019 ISSUED BY THE TALUK SURVEYOR, CHERTHALA.** **EXHIBIT P3 TRUE PHOTOCOPY OF THE TAX RECEIPT ISSUED BY THE VILLAGE OFFICE, EZHUPUNNA DATED 5.4.2022.** **EXHIBIT P4 TRUE PHOTOCOPY OF THE POWER OF ATTORNEY DATED 21.2.2022 EXECUTED BY V.J.WILSON IN FAVOUR OF P.V.TOMY EXHIBIT P5 TRUE PHOTOCOPY OF THE ORDER DATED 27.4.2022 ISSUED BY THE FOURTH RESPONDENT VILLAGE OFFICER. EXHIBIT P6 TRUE PHOTOCOPY OF THE DECISION REPORTED IN 2020 (6) KLT 743.**