Kerala High Court
Sathish Kumar vs K. Sadasivan on 15 February, 2022
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 15TH DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943
WA NO. 187 OF 2022
APPELLANT/5th RESPONDENT IN WP.:
SATHISH KUMAR
AGED 42 YEARS
SON OF K. G. SURENDRAN
KRISHANAPURAM HOUSE,
NARAKATHARA P.O., KAVALAM,
KUTTANADU, ALAPPUZHA-688506, PIN - 688506
BY ADVS.
B.J.JOHN PRAKASH
P.PRAMEL
NIMMY SHAJI
BINNET M.VAVACHAN
RESPONDENT/PETITIONER IN WP:
1 K. SADASIVAN
SON OF LATE RAGHAVAN,
KAPPILCHIRA HOUSE, NARAKATHARA MURI,
KAVALAM VILLAGE, KUTTANADU TALUK, ALAPPUZHA-688506, PIN -
688506
RESPONDENTS/RESPONDENTS IN W.P.
2 PUNCHA SPECIAL OFFICER
PUNCHA SPECIAL OFFICE, ALAPPUZHA - 688011, PIN - 688011
3 CHIEF ENGINEER
INDIAN NAVIGATION, KUTTANADU,
PACKAGE, ALAPPUZHA-688011, PIN - 688011
4 THE STATION HOUSE OFFICER
POLICE STATION, KAINADI P.O., KAVALAM,
KUTTTANADU, ALAPPUZHA-688506, PIN - 688506.
W.A.No.187 of 2022 2
5 BAIJU P. C
SECRETARY, KZHICHAL THEKKU PADASEKHARAM,
NELLULPADAKA SAMITHI, REG. NO. A649/90,
NARAKATHARA P. O.,
KAVALAM, KUTTANAD, ALAPPUZHA-688506, PIN - 688506
BY ADVS.
SRI.K.S.HARIHARAPUTHRAN (B/O)FOR R1
SRI.TEK CHAND,SENIOR G.P.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15.02.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.187 of 2022 3
JUDGMENT
S.MANIKUMAR,CJ.
Before the writ court, petitioner therein sought for a mandamus directing the Puncha Special Officer, Puncha Special Office, Alappuzha & Chief Engineer, Inland Navigation, Kuttanadu Package, Alappuzha - respondent Nos.1 & 2 therein, to execute and implement Exhibit P8 proceedings of Puncha Special Officer, Alappuzha dated 3.11.2021 by removing the inside sluice put up in the Pothu Vachal (water draining system) by Mr.Sathish Kumar - respondent No.5, and restore the same to its original state, with the aid and assistance of the Station House Officer, Police Station, Kainadi P.O., Kuttanadu, Alappuzha District - respondent No.3 therein.
2. Adverting to the rival submissions, writ court vide judgment dated 5th January, 2022 ordered thus:
"4. Even though notice was issued to the 5th respondent, there is no appearance for the 5th respondent. The learned Counsel for the petitioner reiterated his contentions in the writ petition. The learned Counsel also submitted that Ext.P8 order was passed on 03.11.2021 and even now, it is not implemented. The learned Government Pleader W.A.No.187 of 2022 4 on the other hand submitted that as per Section 31 of the Kerala Irrigation and Water Conservation Act, 2003, 2 nd respondent is the appellate authority. She also submitted that, the 5th respondent only submitted a petition before the Appellate Authority and no further action is taken by the 2nd respondent in the petition.
5.Admittedly, Ext.P8 is an order passed by the 1st respondent. There is no interim order staying Ext.P8 order from any authorities. There is no appearance also from the 5th respondent. When the petitioner approached the first respondent for implementing Ext.P8 order, the 1st respondent informed the petitioner that the petitioner should approach the Appellate Authority. According to him, Ext.P11 order is unsustainable. For implementing Ext.P8 order, the petitioner need not approach the Appellate Authority. Ext.P11 is to be set aside and the 1st respondent can be directed to implement Ext.P8 order forthwith.
Therefore this writ petition is allowed in the following manner:
(1) Ext.P11 is set aside.
(2) The first respondent is directed to implement Ext.P8 order
forthwith."
Being aggrieved, the instant writ appeal is filed.
3. On 9th February, 2022, when the matter came up for hearing, after considering Annexure A5 letter of the Padasekhara Committee addressed to the appellant, and taking note of the submission of the learned counsel for respondent W.A.No.187 of 2022 5 No.1 herein, that acting on the directions issued in W.P.(C) No.27912 of 2021 dated 5.1.2022, sluice has been restored, we passed the following order on 9th February, 2022:
" ORDER Mr.K.S.Hariharaputhran, learned counsel for respondent No.1 submitted that acting on the directions issued, sluice has been removed.
2. As per Annexure A5 letter of Padashekara Committee, addressed to Mr.Sathish Kumar - appellant, there is no hindrance in managing water system essential for cultivation. For brevity, translated version of Annexure A5 is reproduced:
"To Mr.Satheeshkumar, Krishnapurathu Veedu, Narakathra P.O., Kavalam.
The Kozhichal South Paddy field in the Kavalam Village in Kuttanadu Taluk in Alappuzha district spans about 414.80 acres. There are 206 farmers in this paddy field. Shri.K.R. Sadasivan's 40 cents agricultural land is having the complaint on the water level regulation system. However, it was convinced that there was no hindrance in managing the water system essential for the cultivation based on the investigation of the paddy field committee."
3. Mr.V.Tekchand, learned Senior Government Pleader is directed to get instructions on the above said letter. Learned Senior Government Pleader is also W.A.No.187 of 2022 6 directed to produce the Basic Tax Register pertaining to the subject land in dispute.
Post on 15.02.2022."
4. On a query regarding the alteration of Basic Tax Register pertaining to the subject land, inviting the attention of this Court to the report of the Village Officer, Kavalam and photographs, Mr.Tek Chand, learned Senior Government Pleader, submitted that action has been initiated against the appellant consequent to the filling up of paddy field as per the provisions of the Kerala Land Utilisation order.
5. At this juncture, we observe that answer is inadequate. It is also stated that the appellant is making an attempt to drain out water by fixing concrete pipes through his property and therefore, the Village Officer requested that appropriate action may be taken against the appellant in this regard.
6. Along with the above report, learned Senior Government Pleader has also submitted certain photographs indicating the presence of concrete pipes. It is further submitted that being aggrieved by Exhibit P8, an appeal has been filed before the competent authority.
7. To substantiate the said contention, he invited the attention of this Court to the submission of the learned Senior Government Pleader before the writ court, as W.A.No.187 of 2022 7 extracted at paragraph No.4 of the judgment, wherein it is recorded thus:
"She also submitted that the 5th respondent only submitted a petition before the appellate authority and no further action is taken by the 2 nd respondent in the petition"
Exhibit P8 reads thus:
" Proceedings of Puncha Special Officer, Alappuzha (Attendent: Beena N. Deputy Collector & Agricultural Tribunal)
--------------------------------------------------------------------------------------------
A8-8803/21 Date:03/11/2021
---------------------------------------------------------------------------------------------- Subject:Regarding the reinstating of filled up common open water channel in the Kavalam - Kozhochal South a paddy field.
Hints: 1. Complaint submitted by Shri.Sadasivan, Kappilchira
2. Complaint submitted by Shri.Satheeshkumar K S on 24/09/2021
3. S V O report
4. Hearing in this office on 13.10.2021.
It is convinced that the common open water channel used for the water management in the paddy field of Shri.Sadasivan, Kappilchira had been illegally filled by Shri.Satheeshkumar, Krishnapurathuveedu. It has become impossible to decrease the water level in the paddy field of Sadasivan, Kappilchira owing to this situation. As per the hearing in Hint (4), it is instructed to reinstate the common open water channel for a seamless cultivation practice.
Puncha Special Officer. "W.A.No.187 of 2022 8
8. The appeal/petition stated to have been submitted before the Hon'ble Chief Engineer, Kuttanad Package and Inland Navigation, exhibited as Annexure A3, is reproduced hereunder:
" Before the Hon'ble Chief Engineer Kuttanad Package and Inland navigation Alappuzha Appellant Respondent Satheeshkumar KS Sadasivan K R Appeal as per the article 7 of Kerala Irrigation Works [Execution by Joint Works) Act of 1967 Appellant Defendant Satheeshkumar KS KR Sadasivan Aged 41, S/O K G Surendran Kappilchira, Krishnapurathuveetil, Narakathra PO, Narakathra, Kuttanadu Taluk Kavalam, Kuttanadu, Alappuzha Alappuzha W.A.No.187 of 2022 9 Appeal against the Puncha Special Officer's A8-8033/21 Order dated 31/08/2021 Plaintiff Defendant KR Sadasivan Satheeshkumar KS Kappilchira, Aged 41, S/O K G Surendran Narakathra PO, Krishnapurathuveetil, Kavalam, Kuttanadu, Narakathra, Kuttanadu Taluk, Alappuzha Alappuzha Appeal matter Appellant is the Defendant of the A8-8033/21 in the Puncha Special Office and Defendant is the original Plaintiff. The complaint is on the filling up of the common open water channel used to regulate the water level in the paddy field of the Plaintiff by a closed conduit by the Defendant/Appellant. Based on the investigation report on the complaint by the S.V.O on 10/08/2021, Puncha Special Officer ordered on 31/08/2021 to reinstate the common open water channel in the place of closed conduit. Appeal is submitted based on the below grounds due to the significant dispute raised on the order.
Grounds
1) The A8-8033/21 order of the Puncha Special Officer do not stand legally or circumstantial do not stand or sustain.W.A.No.187 of 2022 10
2) The Order was passed without the accurate study of SVO report of 10/08/2021, which led to the order.
3) The false information of being a farmer in the Kozhichal South Paddy field and fake details on the filling up of open water channel was not considered for the situation that led to the Order.
4) The order cannot be seen as passed under bonafide circumstances.
5) If a water channel is permitted as per the demand of the Defendant through the land of the appellant, it will bring irreparable peril to the Appellant's land. This will cause soil erosion and will bring significant ruin to the land.
6) Accurate investigation was not performed on the said Paddy field. The order was passed without carefully checking the farmers of the paddy field or assessing if any activity is actually blocking the cultivation.
7) The Order was sanctioned without proper study of the facts.
8) The original petition was submitted stating actual facts. No actions were carried out by the Appellant blocking the cultivation practices in the Paddy field.
The order was passed based on the programme list implemented based on the fake d provided by the Original Plaintiff and stakeholders aiming the land of the Appellant for wrongful gain.
Therefore, we humbly request before the Hon'ble Appeal Authority to lawfully settle the matter by reversing the Order of 31/08/2021 by Puncha Special Committee considering the above mentioned facts and directly submitted facts. Dated this on2nd December, 2021."
W.A.No.187 of 2022 11
9. In as much as the appeal as per section 7 of the Kerala Irrigation Works (Execution by Joint Labour) Act, 1967 is stated to have been filed, and taking note of the directions issued by the writ court, we are not inclined to delve into the contentions raised in the writ appeal.
10. Further, as stated supra, in as much as there was no stay of Exhibit P8 dated 3.11.2021, writ court has directed to implement Exhibit P8, which has also been done, after taking note of the Contempt Petition filed by respondent No.1.
11. During the course of hearing, it is brought to the notice of this Court that the Kerala Irrigation Works(Execution by Joint Labour) Act, 1967 has been repealed, and that the Kerala Irrigation and Water Conservation Act, 2003 has been introduced, and that the provisions of the said Act would apply to the instant case, which is not disputed.
12. Anyhow, without going into the rival contentions made in the appeal, we direct the Appellate Authority under the Kerala Irrigation and Water Conservation Act, 2003 viz., the Chief Engineer, Indian Navigation, Kuttanadu Package, Alappuzha
- respondent No.3, to dispose of the appeal, as expeditiously as possible, after providing an opportunity of hearing to all parties concerned.
13. The appellant is directed to place all the materials before the Chief W.A.No.187 of 2022 12 Engineer, Indian Navigation, Kuttanadu Package, Alappuzha - respondent No.3 , before whom the appeal is stated to be pending. The Chief Engineer, Indian Navigation, Kuttanadu Package, Alappuzha - respondent No.3, is also directed to call for the records pertaining to Exhibit P8, ascertain the nature of the property and when and how the changes, has been made in the Basic Tax Register.
With the above directions, writ appeal is disposed of.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
smv JUDGE
W.A.No.187 of 2022 13
APPENDIX OF WA 187/2022
APPELLANT'S ANNEXURES
AFFIDAVIT 1 AFFIDAVIT AND PETITION TO ACCEPT ADDITIONAL
Annexure-A1 DOCUMENTS.
THE TRUE COPY OF THE LAND TAX RECEIPTS
Annexure-A2 TRUE COPY OF THE SKETCH PREPARED BY THE
SPECIAL PUNCHA OFFICER OF THE PROPERTIES IN
DISPUTE
Annexure-A3 TRUE COPY OF THE STATUTORY APPEAL FILED BY THE
APPELLANT