V.J. Wilson v. Local Level Monitoring Committee, Ezhupunna Grama Panchayath, Tahsildar (LR), Ezhupunna Grama Panchayath, Village Officer

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 27[TH] DAY OF MARCH 2023 / 6TH CHAITHRA, 1945** **WP(C) NO. 30421 OF 2022** ## **PETITIONER:** **V.J.WILSON, S/O JACOB, AGED 67 YEARS VELIKKAKATH HOUSE, EZHUPUNNA, CHERTHALA, REPRESENTED BY POWER OF ATTONEY HOLDER P.V.TOMY, S/O P.T.VARGHESE, AGED 67 YEARS, RESIDING AT PAZHANGATT HOUSE, ERAMALLUR.P.O., CHERTHALA, ALAPPUZHA - 688 524.** **BY ADV P.P.JACOB** ## **RESPONDENTS:** |**1**|**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**| ## **OTHER PRESENT:** ## **GP - SYAMANTHAK B.S.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.30421 of 2022 2 ## **VIJU ABRAHAM, J.** **................................................................. W.P.(C) No.30421 of 2022 .................................................................** Dated this the 27[th] day of March, 2023 ## **JUDGMENT** Above writ petition is filed aggrieved by Ext.P9 order and for a further direction to the respondents not to interfere with the right of the petitioner in the construction of a 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. Petitioner is the title holder of 62.32 Ares of landed property situated in survey No.252/4-1-3-7, 252/4-1-5, 252/4-2-3 and 252/4-2-4-1 of Ezhupunna Village obtained as per Ext.P1 sale deed. Petitioner has been paying tax as is evident from Ext.P3 tax receipt issued by the Village Officer, Ezhupunna. Petitioner's property is nilam and pokkali cultivation is being done. On the eastern side of the property is Vembanatt Backwater and on the other three sides is properties belonging to different persons and is lying as nilam. For certain period the property was not used for cultivation. Hence the existing ridge (chiravarambu) on the four sides of the boundaries of the property is got WP(C) No.30421 of 2022 3 damaged. In order to conduct cultivation, the existing ridge on the four sides of the property has to be maintained properly. Thereupon the petitioner took steps to conduct the construction of the ridge (chiravarambu) utilising the mud from the property itself. Thereupon the 4[th] respondent Village Officer has issued Ext.P5 prohibitory order stating that the petitioner has fixed logs and is attempting to convert the paddy land. 3. The case of the petitioner is that he is only constructing a ridge on the boundary separating the other properties so that cultivation of paddy could be conducted. The neighbouring property holders are also doing the very same act of constructing ridges for conducting paddy cultivation. Aggrieved by the issuance of Ext.P5 communication of stop memo petitioner has approached this Court filing W.P.(C) No.15131 of 2022 which was disposed of as per Ext.P7 judgment wherein the claim of the petitioner was directed to be re-considered in the light of Ext.P6 judgment, ie. the decision of this Court in **Subramonian Namboothiri v. District Collector, Malappuram reported in 2020 (6) KLT 743** . The 4[th] respondent without conducting any inspection and without hearing has issued Ext.P9 proceedings stating that the 2[nd] respondent Tahsildar has informed that the stop memo issued need not be withdrawn and the 4[th] respondent decided to maintain the stop memo in force. It is aggrieved by Ext.P9 that the petitioner has approached this Court. WP(C) No.30421 of 2022 4 4. The specific case of the petitioner is that in Ext.P7 judgment there is a direction to the 4[th] respondent to conduct inspection in the property and ascertain the applicability of Ext.P6 judgment after hearing the petitioner. The 4[th] respondent did not conduct any inspection of the property in person as directed by this Court. The 4[th] respondent did not even conduct any hearing as directed in the judgment. Therefore Ext.P9 order which has been issued in total violation of the directions contained in Ext.P7 judgment is liable to be set aside. 5. Admittedly the property is paddy land, the Government of Kerala have issued separate schemes permitting land holders to conduct cultivation of paddy and also fish farming in the properties lying adjacent to the back waters. The 4[th] respondent deliberately ignored the scheme of the Government relating to the right to conduct paddy cultivation as well as fish cultivation. The attempt now made by the respondents in describing the property as wet land for the reason that it is seen waterlogged and is only to be rejected. Petitioner submits that there is a ridge already in existence separating the boundary of the property of the neighbours and the attempt made by the petitioner is only to maintain that ridge properly to keep the boundary in tact for the beneficial enjoyment of the property 6. A detailed counter affidavit has been filed by the 4[th] respondent mainly contending that pursuant to Ext.P7 judgment the WP(C) No.30421 of 2022 5 petitioner was duly heard on 12.08.2022 and a site inspection was carried out in the presence of the petitioner. A contention was taken that the petitioner's property is not a paddy land on the other hand it is a wet land, the reclamation/conversion of which is totally banned as per Section 11 of the Kerala Conservation of Paddy Land and Wetland Act, 2008. Ext.P9 order has been issued taking into consideration Ext.R4(a) report of the Agricultural Officer. Along with the counter affidavit the data bank for the Ezhupunna Grama Panchayat was also produced as Ext.R4(b) which would show that the property is duly classified as wetland in the data bank. It is after taking into consideration all these aspects Ext.P9 order was issued. The contention of the petitioner that the 4[th] respondent was acting under the dictation of the 2[nd] respondent Tahsildar is untenable as the finding of the Agricultural Officer and the factual aspects based on site inspection have been taken into account while passing the impugned order and the views of the Tahsildar have also been ascertained which does not indicate that the 4[th] respondent is acting on the dictates of the Tahsildar. The attempt of the petitioner is to convert the property for fish farming and not paddy because of the property is not suitable for paddy cultivation. Nobody has cultivated paddy crops in the area which is fully waterlogged. If the water level is raised by construction of ridges it will lead to flooding in adjacent area during high-tide. Based on the abovesaid contentions the learned Government Pleader sought for the dismissal of WP(C) No.30421 of 2022 6 the writ petition. 7. I have heard the learned counsel for the petitioner as well as the learned Government Pleader. 8. The specific case of the petitioner is that the property covered by Ext.P1 sale deed is a paddy land. Even in the schedule to the deed, the property is described as nilam and in Ext.P2 tax receipt also the property is termed as ''nilam''. Petitioner has a case that even in Ext.P5 stop memo the Village Officer who is the 4[th] respondent herein does not have a specific case as to whether the property is a paddy land or wet land, and in Ext.P5, the property has been described both as ''nilam'' and “wet land” which is totally unsustainable. It is also pertinent to note that when the matter was re-considered pursuant to Ext.P7 judgment by this Court and orders are issued evidenced by Ext.P9, even in the said proceedings also the 4[th] respondent has mentioned the property as ''nilam'' and that the property is not suitable for paddy cultivation and that paddy cultivation is not undertaken in the said property till date and that the ridge has been constructed for the purpose of fish farming. Even though in the counter affidavit the 4[th] respondent has produced Ext.R4(b) data bank, it cannot be understood whether the property is included as a paddy land or a wet land. In the report of the Agricultural Officer also which is produced as Ext.R4(a) there is no clarity or confirmation of the fact that the property is lying as wet land in as much as even though it is WP(C) No.30421 of 2022 7 stated in Ext.R4(a) that the property has been included as a wet land in the data bank but it is also stated that in the site inspection it was seen as waterlogged. So a perusal of Exts.P1 and P3 would show that the property has been treated as ''nilam''. In Ext.P5 stop memo also there is a reference that the property is lying as ''nilam''. Though there is a further statement that the property is a wet land, in the subsequent order issued as Ext.P9 also the property has been referred to as ''nilam'' and that the property is no fit for paddy cultivation. The petitioner has not sought for the filling up of the land but he has only requested for repairing the existing ridge (chiravarambu) so as to protect his property. Petitioner has also a case that he is entitled to do fish farming in the said property. 9. This Court in _**Subramonian Namboothiri**_ 's case supra if the reclamation is not affecting the existing paddy land if it was for the purpose of paddy land, such reclamation cannot come within the prohibition of under Section 3 of the Act and the widening of a 'chiravarambu' is only for the purpose of paddy cultivation and therefore that cannot be stated to be an illegal act. The Kerala Conservation of Paddy Land and Wetland Act, 2008 defines 'intermediary crop' in Section 2(ix) as 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 farming is an activity which is permitted even as per the provisions of WP(C) No.30421 of 2022 8 the Kerala Conservation of Paddy Land and Wetland Act, 2008. This position has been reiterated in the judgment of this Court in _**Wonderla Holidays Ltd. v. Revenue Divisional Officer**_ reported in _**2021 (5) KLT 737**_ . This Court in _**Mariadas v. State of Kerala**_ reported in _**2020 (6) KLT 49**_ had occasion to consider a similar issue and held 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. A perusal of Exts.P1 and P3 and the impugned orders Exts.P5 and P9 would reveal that even the authorities have considered the property of the petitioner as ''nilam'' in the tax receipt also the property has been termed as ''nilam'' as is evident from Ext.P3. In the impugned orders, Exts.P5 and P9 also the 4[th] respondent treated the land as ''nilam'' but only stated that the property was never cultivated with paddy. This Court in _**Suraj v. State of Kerala**_ reported in _**2018(1) KLT 1**_ has held that the land which was originally a paddy land would never fall within the definition of wetland under the Act. In view of the above it is clear that even the authorities do not have a definite case whether the property is a paddy land or wet land. It is also pertinent to note that this Court in _**Jafarkhan v. Kochumarakkar**_ reported in _**2012 (1) KLT 491**_ the Division Bench has observed that wherever a paddy or wet land has become unfit for cultivation viably, such land should be permitted to be converted for suitable use instead of allowing it to be retained as waste land. Petitioner WP(C) No.30421 of 2022 9 also relies on an unreported judgment of this Court in _**District Collector, Alappuzha v. Changaram Pulitharamuri Mitchabhumi Nellulpadaka Samithi and others (W.A.No.756 of 2015)**_ wherein the court has upheld the claim of the petitioners therein on the basis of the policy of the Government which is termed as ''oru nellum oru meenum policy''. 10. The request of the petitioner is only to strengthen the ridge around his property using the mud from the property itself so that the petitioner could undertake paddy cultivation and fish-culture which is not legally prohibited. Even if it is admitted that the property is wetland, Section 11 of the Act 2008 only prohibits reclamation of such wetland and removal of sand therefrom. What is now attempted by the petitioner is only to protect his property by strengthening the existing ridge which got damaged. Such activity is not in violation of any provision as provided in Section 11 of the Act 2008. If that be so I am of the opinion that the rejection order as is evident from Ext.P9 was without taking into consideration any of the material facts and without entering a clear finding as to whether the property is a paddy land or wet land. In view of the same I set aside Ext.P9 with a direction to the 4[th] respondent to reconsider the same. The Village Officer as well as the Local Level Monitoring Committee shall conduct a joint inspection in the property and find out the real nature of the property as is stood at the time of implementation of the Act of 2008 and also to ascertain whether the WP(C) No.30421 of 2022 10 attempt of the petitioner is only to reconstruct the damaged ridge so as to protect his property and to undertake paddy as well as fish farming. Therefore there will be a direction to respondent Nos.1 and 4 to conduct a local inspection and ascertain the real nature and lie of the land and thereafter take a fresh decision in the place of Ext.P9 based on the inspection conducted with notice to the petitioner and after affording an opportunity of hearing to the petitioner within a period of two weeks. If in the inspection it was found that the attempt of the petitioner is only to reconstruct the existing ridge which got damages, then such re-construction shall be allowed to be conducted, but under the strict supervision of the authorities concerned including the 4[th] respondent, who shall ensure that the land is not reclaimed in the guise of strengthening of the ridge (chiravarambu). With the said observations and directions the above writ petition is disposed of. Sd/- **VIJU ABRAHAM** **JUDGE** cks WP(C) No.30421 of 2022 11 ## **APPENDIX OF WP(C) 30421/2022** PETITIONER 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. 22 EXECUTED BY V.J.WILSON IN FAVOUR OF P.V.TOMY - Exhibit P5 TRUE PHOTOCOPY OF THE ORDER DATED 27.4.22 ISSUED BY THE FOURTH RESPONDENT VILLAGE OFFICER - Exhibit P6 TRUE PHOTOCOPY OF THE DECISION REPORTED IN 2020 (6) KLT 743 - Exhibit P7 TRUE PHOTOCOPY OF THE JUDGMENT IN W.P. (C) 15131/22 DATED 20.6.2022 - Exhibit P8 TRUE PHOTOCOPY OF THE NOTICE DATED 10.8.2022 ISSUED BY THE FOURTH RESPONDENT - Exhibit P9 TRUE PHOTOCOPY OF THE PROCEEDING DATED 1.9.22 OF THE FOURTH RESPONDENT - RESPONDENT EXHIBITS - Exhibit R4(a) True copy of the report of the Agricultural officer dated 25.08.2022 bearing No.KBEPN/25/22-23 Exhibit R4(b) True copy of the relevant extract of the Data Bank.