Dismissed

State of Kerala v. Janaki Amma

Kerala HC8 Dec 2017WA/2266/2017

Case brief

AI extract

What is this about?

The High Court dismissed the appeal filed by State officers challenging a single judge's order setting aside stop memos. The Court held that reclassified garden land and filled-up ponds did not qualify as natural water bodies under the Irrigation Act or attract development rules under Building Rules, thus the original judgment was correct.

What did the court decide?

The appeal is dismissed; the judgment under appeal upholding the right to level the land is affirmed.

State of Kerala Vs Janaki Amma — Land Acquisition | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE THE ACTING CHIEF JUSTICE MR.ANTONY DOMINIC &

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THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

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FRIDAY, THE 8TH DAY OF DECEMBER 2017/17TH AGRAHAYANA, 1939

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WA.No. 2266 of 2017 IN WP(C).26414/2016

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AGAINST THE JUDGMENT IN WP(C) 26414/2016 of HIGH COURT OF KERALA DATED 18-08-2017

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APPELLANTS/RESPONDENTS 1 TO 5 & ADDL. 6TH RESPONDENT IN W.P.(C):

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STATE OF KERALA

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REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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THE DISTRICT COLLECTOR,

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COLLECTORATE, PALAKKAD - 678 001.

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THE REVENUE DIVISIONAL OFFICER, PALAKKAD - 678 001.

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THE TAHSILDAR,

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PALAKKAD - 678 001.

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THE VILLAGE OFFICER,

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PALAKKAD III VILLAGE, PALAKKAD - 678 001.

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THE CONVENOR,

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LOCAL LEVEL MONITORING COMMITTEE, AGRICULTURAL FIELD OFFICER, KRISHI BHAVAN, PALAKKAD MUNICIPALITY, PALAKKAD.

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BY ADDL. A.G. SRI.RANJITH THAMPAN

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RESPONDENT/PETITIONER IN W.P.(C):

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JANAKI AMMA

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W/O. A.R.NAIR (LATE), LUMINIGROW, KUNNATHOORMEDU, PALAKKAD - 678 001.

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BY SRI.KALEESWARAM RAJ

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ANTONY DOMINIC, Ag. C.J. &

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DAMA SESHADRI NAIDU, J.

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W. A. No.2266 of 2017

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Dated this the 8^th day of December, 2017

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JUDGMENT

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Antony Dominic, Ag. C.J.

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aThis appeal is filed by the State and its officers impugning the judgment of the learned single Judge in W.P. (C) No.26414 of 2016. The said writ petition was filed by the respondent herein, impugning Exts.P10 and P11 and for directing the appellants not to interfere with the levelling/ filling up of the land, having an extent of 1.21 acres situated in R.S. No.3544 in Block No.73, Ward No.5 of Palakkad Village No.III of Palakkad Taluk in Palakkad District. Consequential reliefs were also sought for. By the judgment

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under appeal, the learned single Judge disposed of the writ petition, with the following directions:

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“4. In such circumstance, on the basis of the conversion order passed by the Revenue

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W. A. No.2266 of 2017

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Divisional Officer under Clause 6 of the Kerala Land Utilization Order as evidenced from Ext.P3, the petitioner could approach the Land Tax Authorities for assessment of the land as a garden land. It is also evident that the land has already been assessed as garden land and at best, the categorisation as tax exempted can be modified.

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The revenue records having indicated the land to be a garden land, the stop memo is unsustainable. Therefore, Exts.P10 and P11 are set aside. The petitioner would be entitled to put the land for any legitimate use.”

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It is this judgment which is impugned before us.

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We heard the learned Additional Advocate General

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for the appellants and the learned counsel appearing for the writ petitioner/the respondent herein.

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According to the learned Additional Advocate General, the land having an extent of 1.21 acres obtained by the respondent by virtue of Ext.P1 Partition Deed, is a water body and any development thereof can be only in compliance with the provisions contained in Section 87 of the Kerala Irrigation and Water Conservation Act, 2003 and Rule 5 of the Kerala Municipality Building Rules. According

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W. A. No.2266 of 2017 -3-

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to the learned Additional Advocate General, neither of these requirements have been complied with by the respondent and therefore, the learned single Judge ought not have given a direction that the respondent would be at liberty to get the land assessed for tax and to put the same to any legitimate use.

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These contentions were resisted by the learned counsel appearing for the respondent and according to her, before the learned single Judge, the only ground urged against the writ petitioner/respondent was on the basis of the provisions contained in Kerala Conservation of Paddy Land and Wet Land Act, 2008 (Act 28 of 2008) and as the land in question admittedly is a garden land, it is not open to the appellants to urge these contentions before the appellate court.

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We have considered the submissions made. We find that 1.21 acres of land mentioned above was obtained by the respondent, by Ext.P1 Partition Deed. Description of the

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W. A. No.2266 of 2017

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property as contained in the schedule to the document, shows that the land is a “Parakkulam” (pond). Subsequently, on an application made by the respondent, the RDO has issued Ext.P3 proceedings dt. 21.05.2008 whereby, taking into account the nature of the land described therein, it was reclassified as a garden land. It is worth mentioning that, in this order, the report of the Village Officer is relied on, where it is stated that the land is almost a filled up one. This report of the Village Officer is fully substantiated by the photographs produced by the appellants themselves along with this appeal. It was this land which was sought to be levelled by the respondent, when Exts.P10 and 11, stop memos were issued to her.

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In the writ petition, counter affidavits were filed, where the only plea raised was that the activity of the respondent was in violation of the provisions contained in Act 28 of 2008. It was this plea which was negatived by the learned single Judge having regard to Ext.P3 order of the

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Revenue Divisional Officer reclassifying the land as garden land and also the admitted case of the appellants that the land was not included in the data bank prepared in pursuance of the provisions contained in Act 28 of 2008 as a wet land, but only as a tax exempted land.

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We fully agree with the learned counsel for the respondent that the appellants having not urged before the learned single Judge any contention relying on the provisions contained in the Kerala Irrigation and Water Conservation Act, 2003, and the Kerala Municipality Building Rules, it is not open to them to take advantage of those provisions at this appellate stage as such pleas are not supported by the pleadings. Still we are proceeding to consider those contentions.

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Section 87 of the Kerala Irrigation and Water Conservation Act, 2003, provides that no person shall be permitted to close or reduce the size of any natural water collection area such as pond, thodu, etc. without prior

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W. A. No.2266 of 2017

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sanction accorded by the Government in consultation with the Soil Conservation Department. Evidently therefore, in order to apply Section 87, the water collection area should be a natural water collection area. Having regard to the description of the land as a “Parakkulam” and in the absence of anything to the contrary, we are not persuaded to think that the pond in question is a natural water collection area.

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Insofar as the provisions contained in Rule 5 of the Kerala Municipality Building Rules is concerned, this Rule provides that, every person who intends to develop or redevelop any parcel of land shall apply in writing to the Secretary in the prescribed form and such application shall be accompanied by plans and statements in duplicate. The term 'development of land' has been defined in Rule 2(v) as any material change on the use of land brought about or intended to be brought about by filling up of the land and/or water bodies or changing from the existing former use of the land etc.

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W. A. No.2266 of 2017

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In the light of the Village Officer's report, we have referred earlier, Ext.P3 order passed by the Revenue Divisional Officer and the photographs produced by the appellants themselves, we are not persuaded to think that the land in question would qualify as a water body to attract the provisions of Rule 5. Necessarily, therefore, these contentions now raised before us will have to be rejected and we do so.

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In the result, we do not find any reason to entertain this appeal.

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Appeal fails and is accordingly dismissed.

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Sd/-

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ANTONY DOMINIC ACTING CHIEF JUSTICE

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Sd/-

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DAMA SESHADRI NAIDU JUDGE

kns/-

//TRUE COPY//

P.S. TO JUDGE

W. A. No.2266 of 2017 -8-

State of Kerala v. Janaki Amma

Case brief

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State of Kerala v. Janaki Amma

Case brief

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