Sachidanandan, S/o.Narayanan, vs State Of Kerala

N.Nagaresh, J

The petitioner, who is resident of Kadungalloor Grama Panchayat, has approached this Court aggrieved by the illegal and large scale filling up of paddy land in Survey No.236/10 of Kadungalloor Village by respondents 5 to 8.

The petitioner states that during each Monsoon the dwelling units of the petitioner and his neighbours would be inundated destroying their valuables. The petitioner alleges that this flooding is as a result of the illegal filling up of paddy land in Survey No.236/10 belonging to respondents 5 to 8. The said land is included in the Data Bank as paddy land. In the year 2006, the respondents started conversion of 15 cents of paddy field which affected a water chal. The Sub Divisional Magistrate interfered in the matter as can be seen from Ext.P1 and the water chal was restored. In the year 2006, steps were taken by the Tahsildar to restore free flow of water and Village Officer issued a Stop Memo on the 5th respondent, pursuant to Ext.P2 report.

However, respondents 5 to 8 filled up 35 cents of land in this Survey number in 2009. By Ext.P5, the Agricultural Officer reported that this has seriously affected agricultural operations. In spite of the complaints filed by the petitioner, the authorities have not taken any effective steps to restore the land to its original position. The Deputy Collector instead issued Ext.P9 order permitting the 5th respondent to proceed with the illegal building construction undertaken by him, in spite of the fact that there is a Stop Memo issued against the construction. The petitioner preferred Ext.P16 revision petition against Ext.P9. But, the 1st respondent, without application of mind, upheld Ext.P9 as per Ext.P17.

The petitioner contended that Exts.P9 and P17 are illegal. Ext.P11 Circular was ignored while passing Ext.P9 order. Ext.P9 could not have been passed when a Stop Memo was existing. The 3rd respondent-Secretary to Panchayat has found that construction violates statutory provisions. Hence, Ext.P9 could not have been issued. The 2nd respondent erred in concluding that the land is not 'Nilam'. Water logging can be avoided only by restoring the paddy land to its original position. The petitioner therefore prays that the 1st respondent be directed to reconsider Ext.P16 revision on the basis of Exts.P5, P12 and Ext.P15 and to take steps to restore the land to its original position.

The 5th respondent resisted the writ petition filing counter affidavit. The 5th respondent stated that he purchased 18 cents of land in Survey No.236/10 in the year 2005. In the year 2006, he constructed the foundation of a residential house. Then the Kerala Panchayat Building Rules were not applicable to the Panchayat and there was no legal requirement of obtaining a Building Permit. Certain persons complained against the construction alleging that the 5th respondent filled up a cultivating land and an adjacent Thodu and that a Panchayat Sluice was obstructed.

The Village Officer, after inspecting the place, reported that there is no Thodu through the land of the petitioner and the sluice was constructed by the Panchayat for flowing water away from the land of the petitioner and the 5th respondent. The permanent solution is to construct a drainage canal in the north-south direction on the western boundary of the 5th respondent. The 5th respondent stated that he has not created any obstruction to the water flow.

Heard the learned counsel for the petitioner, the learned Senior Government Pleader representing respondents 1 and 2 to 4, the learned counsel for the 3rd respondent and the learned counsel for the 5th and 6th respondents.

The grievance of the petitioner is that the Ext.P9 and P17 orders have been passed on the basis of the report of the Deputy Collector which was made after a site inspection and hearing conducted after the commencement of the Kerala Conservation of Paddy Land and Wetland Act, 2008. The reclamation of land was made in spite of a valid Stop Memo issued by the Village Officer. The constructions carried out by the 5th respondent therefore is evidently illegal.

Even according to the petitioner, the 5th respondent had started construction in the year 2006. The Act, 2008 was not in place in the year 2006. Ext.P11 Circular prohibiting constructions in converted paddy lands was issued on 26.08.2013. The Circular would indicate that it is the conversion of paddy land after 12.08.2008 which is described as penal offence. The Circular would clearly show that it is intended to be applied to conversion of paddy land after 2008.

It is the specific case of the 5th respondent that he started construction in his land in the year 2006. This is admitted by the petitioner also in the writ petition. Ext.P2 report dated 09.10.2006 of the Village Officer would disclose that a Stop Memo was issued on 03.10.2006 against filling up of land and on 08.10.2006, the Tahsildar had ordered the 5th respondent not to close the Sluice. The Village Officer at the same time found that there is no Thodu in the property of the 5th respondent as per the Village records and a permanent solution to the problem would be to construct a channel (Kana) through the northern boundary of the 5th respondent's property.

It is thereafter that the Sub Divisional Magistrate has passed Ext.P1 order on 23.11.2007. The Sub Divisional Magistrate also, based on Village Officer's report, found that there is no Puramboke Thodu as per the Village records. The preliminary order passed in the case was accordingly modified directing the 5th respondent to remove the obstruction from the Thodu and Panchayat Sluice. The Secretary to Panchayat was directed to find a permanent solution.

Subsequently, pursuant to the directions contained in W.P.(C) No.15593/2013, the District Collector considered the issue of conversion of paddy land. The District Collector noted that the 5th respondent and others have surrendered land for construction of a drainage to the Kadungallur Grama Panchayat. The land is not included in Draft Data Bank, as per the report of the Sub Collector. The Paravur Additional Tahsildar, as per reports dated 15.03.2013 and 31.05.2013, has found that the land of the 5th respondent was reclaimed prior to the Act, 2008. The nearby lands also have been similarly converted and these pieces of land are not fit for paddy cultivation. But, in the final Data Bank, the land was included as 'Nilam'.

It was further noted by the District Collector that according to local residents, the conversion of the land of the 5th respondent is not the reason for water logging in the area. It was also noted that the 5th respondent has made arrangement for free flow of water. In such circumstances, the District Collector held that the land is not paddy land and there is no justification for directing the 5th respondent to restore the land. The District Collector also ordered that the Panchayat authorities should take steps to resolve the issue of water logging in the area. The Government in revision considered the records and held in Ext.P17 that there is no reason to interfere with Ext.P9 order of the District Collector.

It has been found that the land has been converted prior to the commencement of the Act, 2008. The 5th respondent started construction of residential house in 2006 itself. In the circumstances, the fact that the land was later included in the Data Bank cannot be a reason for initiating proceedings against the 5th respondent. Ext.P11 Circular is applicable only to constructions made after commencement of the Act, 2008. Exts.P9 and P17 have been passed after considering various documents and reports available. In the circumstances, this Court do not find any reason to grant the reliefs sough for by the petitioner.

However, the District Collector, in Ext.P9, has directed the Panchayat authorities to take steps to solve the issue of water logging in the area. Therefore, the 3rd respondent is directed to take effective steps in that regard. The 4th respondent-Tahsildar should ensure that free flow of water is not obstructed in the area.

With the said directions, the writ petition is disposed of.