Gopalakrishna Pillai P vs State Of Kerala

N.Nagaresh, J

The petitioner, who is owner of 81 cents of land in Muthukulam Village of Karthikappilly Taluk, has filed this writ petition seeking to quash Ext.P15 order of the 1st respondent.

The petitioner owns 81 cents of land in Re-survey Nos.508/1, 508/2 and 508/9 in Muthukulam Village. The petitioner states that there was no motorable road to the property comprised in 45 cents in Re-survey Nos.508/1 and 508/2. The petitioner started to construct a motorable road to the said plot through the southern side of his property in Re-survey No.508/9. Since the property was not a paddy land or wetland, the petitioner did not seek any permission from the authorities.

The 5th respondent-Agricultural Officer, however, issued a stop memo alleging that construction of the motorable road is against the provisions contained in the Kerala Conservation of Paddy Land and Wetland Act, 2008. The petitioner thereupon submitted a representation to the 6th respondent-Village Officer seeking to permit him to complete the construction of motorable road. No action was taken on the representation.

The petitioner was served with Ext.P4 notice of the 3rd respondent-District Collector. The notice alleged that the petitioner has violated the provisions of the Act, 2008. The Revenue Divisional Officer was required to proceed against the petitioner. The petitioner filed a revision before the Government against Ext.P4 notice. The 2nd respondent, without appreciating the facts, dismissed the revision petition as per Ext.P15 and directed the petitioner to restore to the original position, the property comprised in Re-survey Nos.508/2 and 508/8. In Ext.P15, it was made clear that if the petitioner fails to do so, the Revenue authorities would initiate action and the amount will be recovered from the land owner by revenue recovery. The petitioner challenges the said Ext.P15 order.

The petitioner states that he is possessing land in Re-survey Nos.508/1, 508/2, 508/8 and 508/9. The action initiated against the petitioner is in respect of land comprised in Re-survey Nos.508/2 and 508/8. The land in Re-survey No.508/9 is admittedly a garden land. The petitioner would submit that the land comprised in Re-survey No.508/2 is described as 'Thodu, Chira, Vattakkoona'. The land in Re-survey No.508/8 is described as 'Chira, Kuzhi, Vattakkoona'.

According to the petitioner, the petitioner has tried to lay a motorable road only through a part of the land in Re-survey No.508/8. The petitioner has not made any alteration in the land comprised in Re-survey No.508/2. Admittedly, neither the land in Re-survey No.508/2 nor in 508/8, is a paddy land or wetland. There is no paddy land in the nearby area either. Therefore, the action of the petitioner cannot be treated as violation of any of the provisions contained in the Act, 2008.

The learned Government Pleader would submit that the entire extent of land held by the petitioner is described as wetland in the Revenue records. When the petitioner attempted to covert the land in Re-survey No.508/8, the stop memo was issued. The respondents were forced to take action against the petitioner since he had violated the provisions of the Act, 2008 by making reclamation of the wetland, which is prohibited under Section 11 of the Act, 2008.

This Court passed an interim order in the writ petition on 03.11.2020 directing that the Agricultural Officer shall file a report before this Court as to whether the action now done by the petitioner has adversely affected ecology or surrounding land. Pursuant to the said interim order, the Agricultural Officer submitted a report stating that the land comprised in Re-survey Nos.508/1, 508/2 and 508/8 is paddy lands as per the Village records. However, the land in Re-survey No.508/8 stands as a converted land and a portion of the land in Re-survey No.508/2 is also converted. Pipes have been laid through this property for free flow of water. However, the neighbouring residents have complained that water is not flowing through the pipes and consequently, water logging occurs during rainy season.

This Court appointed an Advocate Commissioner as per order dated 22.03.2021 to inspect the property and submit report. The Advocate Commissioner has submitted a report dated 31.03.2021. The said report would indicate that in Re-survey No.508/8, there were 8 Coconut palms of age up to 10 to 15 years and in Re-survey No.508/2, there were 18 fully grown Coconut palms. The Advocate Commissioner also reported that the Panchayat has laid underground pipes passing through the drain in Re-survey No.508/8. The Advocate Commissioner stated that the property in Re-survey No.508/8 was not found to be cultivated with paddy and the Commissioner did not find any paddy cultivation in the neighbouring lands. There were residential buildings around the area.

I have heard the petitioner and the learned Government Pleader representing the respondents.

From the draft Data Bank produced by the petitioner as Ext.P12, it can be seen that the land comprised in 508/2 is "Thodu, Chira, Vattakkoona'. The land comprised in Re-survey No.508/8 is "Chira, Kuzhi, Vattakkoona". The said entry in the draft Data Bank is not in dispute. The petitioner's attempt was to construct a motorable pathway to the adjoining lands owned by him. Such construction of motorable pathway is not through a land where paddy is being cultivated. The petitioner would contend that he has not made any changes in land comprised in Re-survey No.508/2.

The motorable pathway proposed is exclusively through land in Re-survey No.508/8. In Ext.P4 order of the District Collector, it has been observed that the land in Re-survey No.508/8 has been converted unloading three loads of gravel and by planting Coconut saplings. In Ext.P15 order in revision, the 2nd respondent has found that the land should be treated as paddy land and the land ought to have been described as paddy land in the Data Bank. The 2nd respondent has stated that the land has to be 'regularised' as paddy land in the Data Bank. Holding so, the 2nd respondent affirmed the order of the District Collector and directed the authorities to take steps to restore the land to its original position.

The Advocate Commissioner who visited the land has submitted a comprehensive report. The Commissioner stated that the land comprised in Re-survey No.508/8 was found fully filled and there were Coconut palms of the age 10 to 15 years. In the land comprised in Re-survey No.508/2, there are four 'Chira' and three 'Thodu'. The filled up area in Re-survey No.508/2 was planted with Coconut trees, which according to the Advocate Commissioner are 25 to 30 years old. It is therefore evident that such conversion was done prior to the enactment of the Act, 2008.

The Advocate Commissioner also noted that the Panchayat has laid underground pipes through the drains situated between Re-survey No.508/7 an 508/6 which passes through the property comprised in Re-survey No.508/8. It would indicate that there was no paddy cultivation in the land for a long period. In fact, the Advocate Commissioner has also categorically stated that no paddy cultivation is seen in the neighbouring lands and the water channel provided under the property in Re-survey No.508/8 was not found to aid any paddy cultivation.

The petitioner has only attempted to lay a motorable pathway to his remaining land. The land in Re-survey No.508/8 through which the pathway is proposed is admittedly not a paddy land even as per the remarks in the Data Bank. In view of the findings of the Advocate Commissioner and in view of the purpose for which the land is sought to be used by the petitioner, this Court is of the considered view that mechanical application of the penal provisions contained in the Act, 2008 would result in grave injustice.

In such circumstances, this Court is inclined to set aside Ext.P15 order. Ext.P15 order is therefore set aside.

Writ petition is disposed of as above.