Kerala High Court
Ajikumar K.V vs Vinod Kumar on 3 December, 2015
Bench: Ashok Bhushan, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THURSDAY, THE 3RD DAY OF DECEMBER 2015/12TH AGRAHAYANA, 1937
WA.No. 926 of 2015 ()
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WP(C) 23532/2014 of THIS HON'BLE COURT
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APPELLANT/THIRD PARTY :
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AJIKUMAR K.V., SECRETARY,
MADHURAMPUZHA PADASEKHARA SAMITHY, KUTTOOR,
RESIDING AT KALLAMPARAMBIL HOUSE, KUTTOOR P.O.,
THIRUVALLA
BY ADVS.SRI.T.P.PRADEEP
SRI.P.K.SATHEES KUMAR
RESPONDENTS/WRIT PETITIONER & RESPONDENT IN WPC :
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1. VINOD KUMAR
S/O.K.R.VIJAYAN NAIR, SHREE VIHAR HOUSE, KUTTOOR P.O.
KUTTOOR VILLAGE, THURUVALLA TALUK
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
K.R.VIJAYAN NAIR SHREE VIHAR HOUSE, KUTTOOR P.O.,
KUTTOOR VILLAGE, THURUVALLA
2. REVENUE DIVISIONAL OFFICER
REVENUE DIVISIONAL OFFICE, THIRUVALLA
3. THE VILLAGE OFFICER
VILLAGE OFFICE, KUTTOOR, THIRUVALLA
4. AGRICULTURAL OFFICER
AGRICULTURAL OFFICE, KUTTOOR, THIRUVALLA
R1 BY SMT.ASHA ELIZABETH MATHEW
R2 TO R4 BY SENIOR GOVERNMENT PLEADER SRI.C.R. SYAMKUMAR
BY STATE ATTRNEY SRI.P.V. VIJAYARAHAVAN,
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20-11-2015 ,
ALONG WITH WPC. 12766/2015, THE COURT ON 03-12-2015 DELIVERED
THE FOLLOWING:
bp
WA.No. 926 of 2015 ()
APPENDIX
PETITIONER'S ANNEXURES :
ANNEXURE A: COPY OF THE REPORT OF THE LOCAL LEVEL MONITORING
COMMITTEE DT 17.11.2014 WITH TRUE ENGLISH
TRANSLATION.
ANNEXURE B: COPY OF THE PHOTOGRAPHS OF THE LAND IN RESURVEY
NO. 53/11 AND 53/19.
ANNEXURE C: COPY OF THE REQUEST DT 16/1/2015 OF THE CONVENOR,
LOCAL LEVEL MONITORING COMMITTEE.
RESPONDENT'S ANNEXURES : NIL.
//TRUE COPY//
P.A. TO JUDGE
bp
ASHOK BHUSHAN, CJ
&
A.M.SHAFFIQUE, J.
* * * * * * * * * * * * *
W.A.No.926 of 2015
& W.P.C.No.12766 of 2015
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Dated this the 3rd day of December 2015
J U D G M E N T
Shaffique, J W.A.No.926 of 2015 is filed by a third party challenging judgment dated 27/11/2014 in W.P.C.No.23532 of 2014 by which the learned Single Judge allowed the writ petition filed by the first respondent herein (hereinafter referred to as 'the petitioner') and disposed of the writ petition declaring that the property in Re- survey No.53/11 situated in Kuttoor Village in Thiruvalla Taluk belonging to the petitioner is not a paddy land as stated in the data bank entries prepared by the Local Level Monitoring Committee (for short 'LLMC') and the petitioner was permitted to seek permission for conversion under Clause 6 of the Kerala Land Utilisation Order, 1967 (hereinafter referred to as 'the KLU Order'). The appellant is a third party claiming to be the Secretary of the Padasekhara Samithi and has filed the appeal after seeking leave of this Court.
W.A.No.926/2015 & W.P.C.No.12766/2015 :2:
2. W.P.C.No.12766/2015 has been filed by the petitioner in W.P.C.No.23532/2014 seeking for police protection inter alia contending that after the judgment by the learned Single Judge, the Revenue Divisional Officer has permitted conversion of two plots situated in R.S.Nos.53/11 and 53/19 in Block No.11 of Kuttoor Village, pursuant to which when steps were taken to fill up the plots, the same were physically obstructed by respondents 3 and 4. They have submitted a complaint before the police seeking adequate police protection and since no action was taken in the matter, the writ petition is filed seeking for a direction to the police authorities to provide adequate protection for converting their lands as permitted by the Revenue Divisional Officer.
3. The short facts involved in the writ appeal are:
The petitioner along with his father-in-law claimed to have purchased 32.20 Ares of property in Re-Sy.No.53/11 and 37.20 Ares in Re-Sy.No.53/19 situated in Block No.11 of Kuttoor village, Thiruvalla Taluk by two separate sale deeds. The property was purchased for the purpose of constructing a residential house and to utilise the balance extent of land for cultivation. It is stated W.A.No.926/2015 & W.P.C.No.12766/2015 :3: that originally the property having an extent of 32.20 Ares was lying as paddy filed. It was converted about 28 years back and thereafter it was cultivated with other crops. It is stated that the property has very old trees including teak wood having an age of more than 20 years. There existed a residential building also in a portion of the property along with a cattle shed. It is stated that the Sri.Ayyappan Nair, the predecessor-in-interest availed a loan under Government scheme and constructed two ponds in a portion of the aforesaid property and commenced fish farming. However, he stopped fish farming by early 1990's. The residential building constructed by Sri.Ayyappan Nair has since been demolished. Except the two ponds in the property, the remaining land was lying as dry land. It was, at that stage, that the property was purchased by the petitioner and his father-in-law. In order to fill up the ponds for better utilisation of the property, petitioner submitted an application before the Village Officer. Since no action was taken in that regard, another application Ext.P5 dated 30/04/2014 was submitted to the Village Officer. An enquiry was conducted by the Revenue Divisional Officer after calling for reports from the Village Officer and Agricultural Officer. The W.A.No.926/2015 & W.P.C.No.12766/2015 :4: Agricultural Officer reported that the property in question has been converted long back and the two ponds are artificially created for fish farming which were remaining unutilised for the last more than 10 years. The report also indicates the existence of trees having an age of 15 to 20 years. Ext.P6 is the said report. The report and mahazar prepared by the Agricultural Officer along with the plan is produced as Ext.P7 wherein it is stated that the property is lying as "purayidam" and it is surrounded by converted dry lands. The petitioner later understood that, in the data bank prepared by the LLMC under the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (hereinafter referred to as 'the 2008 Act'), the description of the property is shown as paddy land. Petitioner submitted Ext.P8 application before the Agricultural Officer for rectifying the said mistake. It is stated that nothing has been done in the matter since the draft notification had already been finalised and published. Petitioner's application for conversion and reclamation of pond was rejected by the Revenue Divisional Officer on the ground that the pond is situated in the paddy land and therefore permission is to be obtained from the Government. It is, in these circumstances, that the petitioner W.A.No.926/2015 & W.P.C.No.12766/2015 :5: has approached this Court challenging Ext.P11 and also for a declaration that the property is not a paddy land as contemplated under the 2008 Act and to direct the authorities to permit him to fill up the ponds, as requested in Ext.P5 application.
4. 1st respondent filed a Counter affidavit inter alia stating that the two ponds were situated in wet land. When there were complaints regarding unauthorised filling up of the ponds, enquiry was conducted and it was convinced that the property is classified as "nilam" in the Basic Tax Register and also in the draft data bank. It is further stated that petitioner's predecessor-in-title availed a loan and constructed two ponds around 25 years back having a length of 70 metres and width of 20 and 30 metres and it was used for pisiculture. It is further stated that the side portions of the ponds appeared as reclaimed land. A larger extent of wet land is converted as ponds for pisiculture and only a small portion appeared to be reclaimed land. Accordingly, the 1st respondent sought for dismissal of the writ petition.
5. A reply affidavit has been filed by the petitioner controverting the contentions urged on behalf of the 1st respondent.
W.A.No.926/2015 & W.P.C.No.12766/2015 :6:
6. The learned Single Judge, after examining the factual and legal issues involved in the matter, allowed the reliefs sought for, as per paragraphs 2 and 3 which reads as under:
"2. This Court directed the Local Level Monitoring Committee to conduct inspection and find out whether this property can be classified as paddy land as on the enactment of Act 28 of 2008. It is submitted that data bank of the Kuttoor grama panchayath has been published on 23/02/2012. However, it is admitted that at the time of commencement of Act 28 of 2008, land is not a paddy land. It is further submitted that since notification is issued, Local Level Monitoring Committee has no power to correct the details in the data bank classifying the property as paddy land.
3. In view of the above, it is declared that petitioner's property situated in resurvey No.53/11 is corrected in the draft data bank as a reclaimed land before the Act 28 of 2008 and it no longer can be treated as paddy land or wet land under the Act 28 of 2008. Consequent upon such declaration, there shall be a direction to the first respondent to consider Ext.P5 under Kerala Land Utilization Order."
W.A.No.926/2015 & W.P.C.No.12766/2015 :7:
7. The appellant, while impugning the aforesaid judgment, contends that when the property is declared as a paddy land in the data bank prepared by the LLMC, the learned Single Judge was not justified in arriving at a different conclusion after obtaining a report from the LLMC. Even the report of the LLMC was not properly appreciated by the learned Single Judge. In the report submitted by the Agricultural Officer, it was stated that the property lies as a wet land. Further it is contended that when a pond is constructed in a paddy land, it does not cease to have the character of a paddy land under the 2008 Act and therefore the learned Single Judge was not justified in giving the declaration, as sought for. The learned counsel appearing for the appellant also argued that the factual appreciation of facts by the learned Single Judge was perverse and therefore it has to be interfered by this Court. It was also argued that if these ponds are filled up, the water source to the nearby paddy fields will be substantially affected and for that reason also, the judgment of the learned Single Judge requires interference.
8. On the other hand, Sri.P.K.Suresh Kumar, learned senior counsel appearing on behalf of the petitioner submitted W.A.No.926/2015 & W.P.C.No.12766/2015 :8: that the paddy land had been converted long prior to the 2008 Act coming into force. But for the area which has been converted as ponds, the balance extent of land is lying as garden land and the trees in the said property is having an age of more than 20 years. That apart, the learned Single Judge had directed the LLMC to conduct a further inspection in the matter and they have categorically stated that the property is not fit for paddy cultivation. A statement was also filed, as directed by the learned Single Judge, in which it was clearly indicated that, at the time of commencement of Act, 28 of 2008, the land was not a paddy land. Statement further indicates that there were two man made ponds in the property having a depth of around 8 feet and filled with water to a height of nearly 5 feet. In the statement, it is further stated that, adjacent to the paddy land, there is a canal named 'Madurampuzha chal'. Since the property is lying adjacent to a canal and the land gets flooded during rainy season, the LLMC in its meeting held on 17/11/2014, decided that the property of the petitioner will come within the definition of wet land as defined under Section 2(xviii) of the 2008 Act. It is also stated that the data bank of the Panchayat has been published in W.A.No.926/2015 & W.P.C.No.12766/2015 :9: the gazette on 23/02/2012 and that the LLMC has no power to correct the description of the property in the data bank. It is therefore argued that the description of the property as paddy land is found to be incorrect by LLMC itself. But, according to them, it could be treated as wet land as, during the rainy season, the land gets flooded. Learned counsel submitted that going by the definition of wet land under the 2008 Act, this property cannot be characterized as wet land and that apart, it is a man made pond. Learned counsel also relied upon our judgment dated 07/01/2015 in W.P.C.No.23558/2014, wherein we have indicated that from the definition of paddy land and wet land under the 2008 Act, it is evident that paddy land cannot be wet land and vice versa. Paragraph 11 of the judgment is relevant which reads as under:
"11. First of all, the petitioner has no consistent case as to whether the property is paddy land or wet land. A paddy land coming within the meaning of the Act and wet land coming within the meaning of the Act have different concepts and a particular property cannot be paddy land as well as wet land. Paddy land and wet land are defined under the Act as under:
W.A.No.926/2015 & W.P.C.No.12766/2015 :10: "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.
"wetland" means land lying between terrestrial and aquatic systems, where the water table is usually at or near the surface or which is covered by shallow water or characterized by the presence of sluggishly moving or standing water, saturating the soil with water and includes backwaters, estuary, fens, lagoon, mangroves, marshes, salt marsh and swamp forests but does not include paddy lands and rivers."
From the definition itself it is evident that paddy land cannot be wet land and vice versa."
9. Reference is made to the judgment of the learned Single Judge in Asma v. District Collector [2015(1) KLT 30] wherein the learned Single Judge had occasion to consider whether a man made pond is a wet land or not. It is held that a pond dug in a dry land for the purpose of aquaculture is not wet W.A.No.926/2015 & W.P.C.No.12766/2015 :11: land in terms of the 2008 Act. Learned counsel also relied upon the judgment of the Supreme Court in Revenue Divisional Officer v. Jalaja Dileep [2015(1) KLT 984 (SC)], in which the Supreme Court had observed that if the property is not included as paddy land or wet land in the data bank under the 2008 Act, still if the property was paddy land prior to the 2008 Act, conversion requires permission in terms with the KLU order. It is therefore argued that the learned Single Judge was justified in declaring that the property is neither a paddy land or a wet land, being an artificial pond and therefore there was no reason to interfere with the judgment.
10. The main contention urged by Sri.T.P.Pradeep, learned counsel for the appellant is based on the report of the Agricultural Officer dated 17/11/2014. With reference to the nature and lie of the property, it is stated that the land starts from the Panchayat road with a compound wall and gate. About 1 Acre of the land is in the form of two ponds which are not natural. The ponds were constructed for fish farming with subsidy of Fisheries Department. Four boundaries of the ponds are broad bunds with Teak, Mango, Anjili and Coconut trees of more than 20 years age. According to W.A.No.926/2015 & W.P.C.No.12766/2015 :12: the Agricultural Officer, the lands are situated in the said stage at the commencement of 2008 Act, which is evident from local enquiry and site inspection and the lands are not suitable for paddy cultivation. Further he indicates that 'Madurampuzha Chal' is flowing through the western side of the petitioner's land and it is understood from enquiry that, during rainy season, water from the nearby paddy lands and Madurampuzha Chal overflows through the petitioner's land on eastern side. It is further stated that the land was completely under water during June - July months. During rainy season, flood affects the Panchayat road as well. Hence according to him, petitioner's property can be classified as wet land coming under the 2008 Act. In fact, it is the very same statement that had been submitted before Court by the Agricultural Officer and the Convener of the LLMC. Based on the above report, it is argued that the factual findings of the learned Single Judge was wrong. It is also the argument that when a pond is constructed in a paddy land, it does not cease to have the character of a paddy land. He relies upon the definition of paddy land which reads as under:
W.A.No.926/2015 & W.P.C.No.12766/2015 :13: "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"
11. The argument is that when ponds are also forming part of the paddy land, the ponds in the property of the petitioner is to be treated as paddy land. In fact, this argument is contrary to the opinion expressed by the LLMC itself. They have stated that the property is not a paddy land it is not suitable for paddy cultivation. That apart, a reading of the aforesaid definition indicates that a pond, which is an allied construction of a paddy land, is treated as paddy land under the aforesaid definition. This is not a case where the pond has been constructed for the purpose of paddy cultivation. It is not an allied construction of a paddy land where paddy is cultivated. Even as per the report, these two ponds were constructed for the purpose of pisiculture and for sometime predecessor-in-interest of the petitioner was carrying on pisiculture operation. Therefore, it is evident that these were man made ponds which are not suitable for paddy W.A.No.926/2015 & W.P.C.No.12766/2015 :14: cultivation and therefore the finding of the LLMC that it was not a paddy land is justified.
12. Another argument of the appellant is that when a pond is constructed in a paddy land, it still continues to be paddy land. We do not think that this contention is acceptable. The purport of the 2008 Act is to find out the nature and lie of the property as on the date of the 2008 Act coming into force. The data bank is prepared to identify the lands which are paddy land and wet land as on the date, the Act had come into force. When a paddy land had already been converted long back either as a pond for fish farming or as a dry land, it cannot be included in the data bank as a paddy land or land suitable for paddy cultivation. But as rightly observed by the learned Single Judge, the provisions of KLU order applies to such properties.
13. Yet another argument raised is that even though it is a paddy land as per the report of the Agricultural Officer, it has to be treated as a wet land. Definition of wet land is incorporated in Section 2(xviii) which reads as under:
"wetland" means land lying between terrestrial and aquatic systems, where the water W.A.No.926/2015 & W.P.C.No.12766/2015 :15: table is usually at or near the surface or which is covered by shallow water or characterized by the presence of sluggishly moving or standing water, saturating the soil with water and includes backwaters, estuary, fens, lagoon, mangroves, marshes, salt marsh and swamp forests but does not include paddy lands and rivers."
Wet land has been given the meaning as land lying in between terrestrial and aquatic systems. In the report of the LLMC it is indicated that there is a chal namely 'Madurampuzha chal' which is flowing through the western side of the petitioner's land and during rainy seasons, water from the nearby paddy lands and the Madurampuzha chal overflows through the petitioner's property. Going by the definition of wet land, it is the land lying between terrestrial and aquatic systems where the water table is usually at or near the surface or which is covered by shallow water or characterized by the presence of sluggishly moving or standing water, saturating the soil with water and includes backwaters, estuary, fens, lagoon, mangroves, marshes, salt marsh and swamp forests and does not include paddy lands and rivers. Apparently, a paddy land can never be characterized as wet land W.A.No.926/2015 & W.P.C.No.12766/2015 :16: and vice versa, as held by us in the judgment in W.P.C.No.23558/2014. That apart, admittedly it is a man made pond used for pisiculture. Man made ponds in paddy land, if not used for paddy cultivation or if it is not an allied construction of the paddy land, cannot be described as paddy land or wet land. True that in the judgment in Asma (supra), the data bank itself classified the property as private pond and the learned Single Judge held that a pond dug in a dry land for the purpose of aquaculture is not a wet land. A pond dug in a paddy land also cannot be treated as wet land. If a pond is dug as an allied construction for paddy cultivation, it is treated as paddy land coming under Section 2(xii) of the 2008 Act. If the pond does not fall under the definition of paddy land as defined under 2(xii), the pond cannot be treated as wet land. In order to treat a pond as a paddy land, it has to be an allied construction of a paddy land. Merely for the reason that during rainy season water flows from the chal and other paddy fields to the property of the petitioner and it is flooded, cannot be a reason to treat a man made pond as a wet land.
W.A.No.926/2015 & W.P.C.No.12766/2015 :17:
14. On account of the aforesaid finding of ours, we do not think that the learned Single Judge has committed any error in issuing a declaration, as prayed for. That apart, in the light of the judgment in Jalaja Dileep (supra), the petitioner had already obtained permission for conversion of the land from the Revenue Divisional Officer and the same is produced as Ext.P9 in W.P.C.No.12766/2015. In the said order, conditions had been imposed by the Revenue Divisional Officer indicating that no obstruction shall be caused to the watering and de-watering to nearby paddy fields and no inconvenience is to be caused to the owners of the nearby paddy lands. Sufficient safeguards had already been made by the Revenue Divisional Officer in this regard. Under such circumstances, we are of the view that no grounds are made out by the appellant to interfere with the judgment of the learned Single Judge and accordingly this writ appeal is liable to be dismissed.
15. W.P.C.No.12766/2015 is filed seeking for police protection alleging that respondents 3 and 4 are obstructing the reclamation of the property.
W.A.No.926/2015 & W.P.C.No.12766/2015 :18:
16. Counter affidavit has been filed by respondents 3 and 4 taking the very same contentions raised in the Writ Appeal. The 4th respondent in this writ petition is the appellant in W.A.No.926/2015.
17. Since the Revenue Divisional Officer had already granted permission for conversion of the land belonging to the petitioner, respondents 3 and 4 have no right to physically prevent the said conversion. They have no right to take law into their hands and in the event any physical obstruction is caused by respondents 3 and 4, police authorities are bound to interfere and ensure that no obstruction is being caused and law and order is maintained. Learned counsel for respondents 3 and 4 would however submit that no steps had been taken by the petitioner for obtaining development permit from the local authority. We do not think that it is for this Court to have an adjudication on the factual circumstances involved in the matter. If at all any such permit is required, and conversion is being made, it is open for respondents 3 and 4 to bring the same to the notice of the concerned local authority and it is for them to take appropriate steps in the matter.
W.A.No.926/2015 &
W.P.C.No.12766/2015 :19:
In the result,
i) W.A.No.926/2015 is dismissed.
ii) W.P.C.No.12766/2015 is allowed. The 2nd respondent is directed to ensure maintenance of law and order in the matter relating to the petitioner complying with the orders passed by the Revenue Divisional Officer in terms of Ext.P9 dated 27/03/2015 and ensure that no obstruction is caused by respondents 3 and 4 or their men.
(sd/-)
(ASHOK BHUSHAN, CHIEF JUSTICE)
(sd/-)
(A.M.SHAFFIQUE, JUDGE)
True Copy PA to Judge
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