Wonderla Holidays Ltd. v. Revenue Divisional Officer, Mini Civil Station, Mudavoor P.O., Muvattupuzha; Kizhakkambalam Grama Panchayath; Tahsildar, Kunnathunadu Taluk; Local Level Monitoring Committee (LLMC), for Kizhakkambalam Grama Panchayath; Agricultural Officer, Krishi Bhavan, Kizhakkambalam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 4[TH] DAY OF OCTOBER 2021 / 12TH ASWINA, 1943** **WP(C) NO. 7282 OF 2021** ## **PETITIONER:** **WONDERLA HOLIDAYS LTD., PALLIKARA, KAKKANAD P.O, KOCHI-683 565, REP. BY ITS AUTHORISED SIGNATORY AND VICE PRESIDENT, MR. RAVIKUMAR M.A., AGED 54, S/O. MADHAVAN PILLAI.** **BY ADVS. V.B.HARI NARAYANAN SMT.SALIHA BEEVI P.A SMT.GAYATHRY.J** ## **RESPONDENTS:** - **1 REVENUE DIVISIONAL OFFICER, MINI CIVIL STATION, MUDAVOOR P.O, MUVATTUPUZHA, ERNAKULAM DISTRICT-686 669** - **2 KIZHAKKAMBALAM GRAMA PANCHAYATH, KIZHAKKAMBALAM, ERNAKULAM DIST-683 562, REP. BY ITS SECRETARY.** - **3 THE TAHSILDAR, KUNNATHUNADU TALUK, PERUMBAVOOR, ERNAKULAM DISTRICT-683 542** - **4 THE LOCAL LEVEL MONITORING COMMITTEE (LLMC), FOR THE KIZHAKKAMBALAM GRAMA PANCHAYATH, KIZHAKKAMBALAM, ERNAKULAM DISTRICT-683 562, REP. BY ITS EX OFFICIO CONVENER, AGRICULTURAL OFFICER.** WP(C) No.7282/2021 : 2 : **5 AGRICULTURE OFFICER, KRISHI BHAVAN, KIZHAKKAMBALAM, ERNAKULAM DISTRICT, 683 562** **BY ADVS.** **SHRI.ABRAHAM P.MEACHINKARA, SC, KIZHAKKAMBALAM GRAMA PANCHAYAT SMT.A.ARUNA (ADVOCATE COMMISSIONER) SRI.VIPIN NARAYANAN SR.GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.7282/2021 : 3 : ## **[CR]** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 4[th] day of October, 2021**_ The petitioner, a Company, is before this Court seeking to quash Exts.P8 and P10 to the extent it has declared that the construction of ponds so as to facilitate fish farming is in violation of the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and seeks to direct the 2[nd] respondent to grant permission for erecting motor shed for agricultural purpose as requested by the petitioner in Ext.P4 application. 2. In the year 2005, the petitioner purchased 50.20 Ares of property in Survey No.390/3-8 of Kizhakkambalam Village. The property is paddy land uncultivated for several years. The petitioner decided to start fish farming in the land WP(C) No.7282/2021 : 4 : as an intermediary crop. The land was accordingly made suitable for paddy cultivation and fish farming. The intention was intimated to the respondents as per Ext.P2 letter. The outer bunds were strengthened using mud and slurry available in the land. For paddy cultivation as well as for fish farming, the petitioner needs to install a water pump, for which a motor shed is to be constructed. 3. The Panchayat authorities required the petitioner to submit an application for Building Permit and accordingly, Ext.P4 application was made. The application was rejected as per Ext.P6 communication. The application was rejected on the premises that Section 14 of the Kerala Conservation of Paddy Land and Wetland Act, 2008 restricts the local authority from granting any licence or permit for carrying out any activity in a paddy land or wetland converted or reclaimed in violation of the provisions of the Act. 4. Aggrieved by Ext.P6, the petitioner filed WPC No.10845/2020 and this Court set aside Ext.P6 and remitted back the matter for fresh consideration. The 4[th] respondent- WP(C) No.7282/2021 : 5 : Convenor of LLMC gave Ext.P8 report to the 1[st] respondent stating that the petitioner has constructed ponds in the land for fish farming in violation of the Act, 2008. The 5[th] respondent stated that inspecting officials could not reach the spot and the report is based on information gathered during inspection. The 1[st] respondent-RDO issued Ext.P10 proceedings to the effect that he is not in a position to give necessary permission in view of the violations pointed out. 5. The counsel for the petitioner submitted that the violation alleged against the petitioner is strengthening the outer bund, which cannot be portrayed as violation, in view of the judgment of this Court in _**Mariadas v. State of Kerala** [2020 (6) KLT 49]._ Section 3(2) prohibits only conversion and reclamation of paddy land and in this case there is neither conversion nor reclamation. It is an admitted fact that no site inspection was conducted before arriving at Ext.P8 report. As there is no conversion or reclamation of paddy land involved, Section 14 of the Act, 2008 cannot be held against the petitioner. WP(C) No.7282/2021 : 6 : 6. The 5[th] respondent-Agricultural Officer filed a counter affidavit and contested the writ petition. The 5[th] respondent stated that fish farming can be done only between two seasons of paddy cultivation. The Deputy Director of Fisheries has opined that _Oru Nellum Oru Meenum_ Scheme is not feasible in the paddy lands in Kizhakkambalam. The binaries of the petitioner to do paddy cultivation is doubtful. The LLMC has found that fish farming in the paddy land is impossible. Digging of paddy land will change the nature of the land. The structure proposed by the petitioner can only be erected after effecting permanent changes in the lie of the land. Hence, the writ petition is liable to be dismissed. 7. The 2[nd] respondent filed a counter affidavit and stated that the land is included in Data Bank. Fishing is permitted in paddy land only as an intermediary crop. It can be done only between two paddy cultivation periods. If motor pump is used for discharging water from the field, it would contain all contamination which is used for the time bound growth of fish. Section 14 prohibits the Panchayat from WP(C) No.7282/2021 : 7 : granting any permit for any construction in a paddy land. 8. This Court appointed Court Commissioner, who in her report stated that the petitioner has cleared around 2760.79 square metres of area for fish farming. Wherever the depth of the field was checked, the depth was ranging between 5 to 6.5 feet. Therefore, it can be safely concluded that the petitioner has not deepened any area for the purpose of fish farming. The petitioner has cleared only the weed grass and the unwanted slurry deposited in the paddy field. Areas 1 and 2 are still having the paddy soil deposit at a thickness of around 2 feet. The petitioner has constructed a small shed of around 4 feet width and around 4 feet length with plastered walls and sheeted roof. This construction is done on the boundary, without affecting the farming area. Construction of this shed will not be an obstruction for paddy cultivation. This was stated to be a shed constructed for the security guard. According to the petitioner, it is next to the said shed that the petitioner has sought permission for construction of shed for keeping motor pump, materials for WP(C) No.7282/2021 : 8 : agriculture and for security purposes, etc. When the Commissioner asked to the Agricultural Officer as to why she thinks the present activities of the petitioner make the land unfit for paddy cultivation, she was unable to give any clear answer. According to her, the boundaries cannot be made with concrete, etc. But, the boundaries of areas 1 and 2 are made with mud, slurry, weed, etc. The petitioner's activities were not one affecting the ecological nature of the land. Fish is an intermediary crop as per Section 2(ix) of the Kerala Conservation of Paddy Land and Wetland Act. There is no prohibition for doing fish farming in paddy land as per Section 3(2) of the said Act, if it is done without changing the ecological nature of the paddy land. From the present nature of the paddy land, it is clear that even for the paddy cultivation, the petitioner will have to remove the grass, strengthen the boundaries, remove the unwanted slurry, deposit the removed grass somewhere, construct shed for motor pump, etc. Therefore, the actions of the petitioner for doing fish farming as an intermediary crop do not make the land in question unfit WP(C) No.7282/2021 : 9 : for paddy cultivation. The petitioner has made an uncultivated area fit for farming. 9. I have heard the learned counsel for the petitioner, the learned Government Pleader, the learned Standing Counsel for the Panchayat and the Court Commissioner. 10. The petitioner proposes to do paddy cultivation and fish farming in 50.20 Ares of property under its ownership. Paddy is not cultivated at present in the land. The petitioner has strengthened the outer bunds for this purpose using slurry and mud taken from the land. The petitioner sought permit from the Panchayat for constructing a motor shed for pumping water which would be required for paddy cultivation as well as fish farming. The Panchayat authorities declined permit citing the Kerala Conservation of Paddy Land and Wetland Act, 2008. 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 Section 27A of the Act, 2008. Fish farming is permissible as an intermediary WP(C) No.7282/2021 : 10 : crop in paddy land, as per the Act, 2008. As per Section 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 Section 2(ix). 12. The Panchayat has taken a stand that grant of permit to construct a motor shed would offend Section 14 of the Act, 2008. Section 14 provides that no Local Authority shall grant any licence or permit for carrying out any activity or construction in a paddy land or a wetland or an unnotified land converted or reclaimed in contravention of the provisions of the Act. The land of the petitioner is neither converted nor reclaimed. 13. Section 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 WP(C) No.7282/2021 : 11 : 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 Section 3 of the Act, 2008. 14. As per Section 2(xv) of the Act, "reclamation" means such act or series of acts whereby a paddy land or a wetland as defined in the Act is converted irreversibly and in such a manner that it cannot be reverted back to the original condition by ordinary means. Construction of a motor house for a large extent of paddy land, cannot be described or termed as an irreversible conversion of paddy land. Hence, the land of the petitioner will not attain the character of a converted or reclaimed land merely by constructing a motor shed. Therefore, the stand of the Panchayat that Section 14 prohibits the Panchayat from issuing permit, is not legally justified. 15. Section 3 of the Act, 2008 is 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 WP(C) No.7282/2021 : 12 : 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.” The proposal of the petitioner to construct a motor house cannot be termed as conversion or reclamation and therefore there is no prohibition against construction of motor house under Section 3. 16. The revenue authorities have taken a stand that the petitioner has made alteration in the land by constructing bund and digging ponds. The petitioner’s specific case is that they have only strengthened the outer bunds using slurry and mud from the paddy land. The respondents have no case that the petitioner has brought slurry or soil or any other materials from somewhere else and filled up the land. This Court has held in the judgment in _**Mariadas**_ (supra) that removal of mud and slurry or the strengthening of the bund for the purpose of carrying cultivation will not violate any of the provisions of the WP(C) No.7282/2021 : 13 : Act, 2008. The said defence of the revenue authorities is therefore unacceptable. 17. It was urged on behalf of the 5[th] respondent that intermediary crop must be one between two paddy cultivation seasons and hence the petitioner cannot do fish cultivation without first resorting to paddy cultivation. The requirement under Section 2(ix) is only that the cultivation of intermediary crops should be between two paddy seasons. Section 2(ix) does not insist that the intermediary crop cultivation should necessarily be after actual cultivation of paddy during the preceding paddy season. This Court is unable to accept the said argument of the 5[th] respondent. 18. The anxiety of the respondents appears to be that the petitioner has no intention to cultivate paddy and the attempt of the petitioner is to convert a part of the paddy land for exclusive fish farming. The respondents are not legally helpless in such an eventuality. Section 15 of the Kerala Conservation of Paddy Land and Wetland Act, 2008 empowers the 4[th] respondent-Committee to direct the holder WP(C) No.7282/2021 : 14 : of any paddy land which is uncultivated and left fallow, to cultivate himself or through any other person of his choice, with paddy or any other intermediary crops under the provisions of the Act. If the holder of a paddy land expresses practical difficulties in cultivating the land with paddy, the petitioner can be required to grant permission in writing to cause to cultivate the said paddy land through the Panchayat. For all the reasons stated afore, Exts.P8 and P10 are liable to be set aside. Exts.P8 and P10 are therefore set aside. The 2[nd] respondent is directed to grant permission to the petitioner for erecting motor shed as requested in Ext.P4 application, if the application satisfies other statutory requirements. Sd/- **N. NAGARESH, JUDGE** aks/28.09.2021 WP(C) No.7282/2021 : 15 : ## **APPENDIX OF WP(C) 7282/2021** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE PHOTOGRAPHS SHOWING THE PRESENT CONDITION OF THE LAND.** - **EXHIBIT P2 A COPY OF THE LETTER DATED 5.09.19 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.** - **EXHIBIT P3 A COPY OF THE REQUEST DATED 31.01.2020 SUBMITTED BY THE PETITIONER BEFORE 2ND RESPONDENT.** - **EXHIBIT P4 A COPY OF THE APPLICATION TOGETHER WITH THE RECEIPT EVIDENCING PAYMENT OF FEE FOR BUILDING PERMIT.** - **EXHIBIT P5 A COPY OF THE PLAN FOR TEMPORARY SHED. EXHIBIT P6 A COPY OF THE LETTER DATED 04.05.2020 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P7 A COPY OF THE JUDGMENT DATED 3.6.2020 IN WRIT PETITION NO. 10845/2020.** - **EXHIBIT P8 A COPY OF THE REPORT OF 5TH RESPONDENT DATED 25.01.2021.** - **EXHIBIT P9 A COPY OF THE REPORT DATED 07.01.2021 SUBMITTED BY THE 3RD RESPONDENT.** - **EXHIBIT P10 A COPY OF THE PROCEEDINGS DATED 8.2.2021 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P11 A TRUE COPY OF THE PROCEEDINGS DATED 04.06.2021 ISSUED BY THE SECOND RESPONDENT.** ## **RESPONDENTS' EXHIBITS:** **ANNEXURE C1 COPY OF THE NOTICE DATED 12.04.2021 ANNEXURE C2 COPY OF THE SATELLITE PICTURES OF THE LAND** **ANNEXURE C3 COPY PHOTOGRAPHS TAKEN AT THE TIME OF INSPECTION BY THE ADVOCATE COMMISSIONER** WP(C) No.7282/2021 |WP(C) No.7282/2021|| |---|---| ||: 16 :| |**ANNEXURE R2(a)**|**TRUE COPY OF THE PROCEEDINGS ISSUED BY**| ||**THE 2ND RESPONDENT DATED 04.06.2021.**| |**EXHIBIT R5(a)**|**TRUE COPY OF THE LETTER NO.B2/1070/90**| ||**DATED 24.08.2021 ISSUED TO THE**| ||**RESPONDENT BY THE DEPUTY DIRECTOR,**| ||**FISHERIES ERNAKULAM.**| **SR**