Dismissed

Ouseph Thomas @ a.J.Thomas v. State of Kerala

Kerala HC14 Nov 2017WP(C)/9394/2010

Case brief

AI extract

What is this about?

The High Court held that the Civil Court injunction does not oust the Puncha Special Officer's statutory powers under Section 6 of the 1967 Act to open sluices for irrigation. The Court permitted sluice opening for collective benefit, directing the construction of a temporary retaining wall of shrubs to prevent erosion.

What did the court decide?

Writ petition dismissed; sluice to be opened for irrigation; natural retaining wall of shrubs to be constructed.

Ouseph Thomas @ a.J.Thomas Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2017)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

¶4

TUESDAY, THE 14TH DAY OF NOVEMBER 2017/23RD KARTHIKA, 1939

¶5

WP(C).No. 9394 of 2010 (Y)

¶6

PETITIONER:

¶7

OUSEPH THOMAS @ A.J.THOMAS, AGED 68 YEARS, S/O.OUSEPH, RESIDING AT, ALUMTHARA PANJIMARAM, ATTUVATHALA MURI,, KAINAKARY P.O., KAINAKARY VILLAGE, KUTTANAD TALUK, ALAPPUZHA DISTRICT, PIN-688 501.

¶8

BY ADVS.SRI.MANJU ANTONEY SRI.K.JAYAKUMAR(CHERTHALA)

¶9

RESPONDENT(S):

¶10

1. STATE OF KERALA,

¶11

REPRESENTED BY SECRETARY

¶12

TO GOVERNMENT DEPARTMENT AND, MINISTRY OF AGRICULTURE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

¶13

2. DISTRICT COLLECTOR, ALAPPUZHA OFFICE AT CIVIL STATION, ALAPPUZHA.

¶14

3. THE PUNCHA SPECIAL OFFICER, OFFICE OF PUNCHA SPECIAL, NEAR KIDAMPARAMBU TEMPLE, THATTAMPALLY P.O., ALLEPPEY.

¶15

4. LOHITA DASAN @ JOY, AGED ABOUT 70 YEARS, S/O.DAMODARAN, RESIDING AT PARAKATTU MADAM, ATTUVATHALA MURI, KAINAKARY P.O., KAINAKARI VILLAGE, KUTTANADU TALUK,

¶16

ALAPPUZHA-688 501.

¶17

5. SIVARAJAN, AGED ABOUT 47 YEARS,

¶18

S/O.THANKAPPAN, RESIDING AT KALARICKAL VEEDU,, ATTUVATHALA MURI, KAINAKARY P.O., KAINAKARY VILLAGE, KUTTANADU TALUK, ALAPPUZHA, PIN-688 501.

¶19

6. PRINCIPAL, AGRICULTURAL OFFICER, DEPARTMENT OF AGRICULTURE, STATE OF KERALA, ALAPPUZHA DISTRICT.

¶20

R1 TO R3 & R6 BY GOVERNMENT PLEADER SMT A.C.VIDHYA R4 BY ADVS. SRI.K.S.HARIHARAPUTHRAN

¶21

SRI.M.D.SASIKUMARAN

¶22

SRI.GEORGE MATHEW R5 BY ADV. SRI.C.H.ABDUL RASAC

¶23

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶24

K.V.

¶25

WP(C).No. 9394 of 2010 (Y) ---------------------------

¶26

APPENDIX

¶27

PETITIONERS EXHIBITS:

¶28

P1: TRUE COPY OF THE JUDGMENT DATED 5.12.2007 IN IS 348/2006. P2; TRUE COPY OF THE DECREE DATED 5.12.2007 IN OS.348/2006 P3; TRUE COPY OF THE ORDER DATED 30.9.08 OF THE 3RD RESPONDENT. P4; TRUE COPY OF THE SUIT NOTICE UNDER SECTION 80 CPC THOUGH HIS ADVOCATE TO RESPONDENTS 1,3,4 AND 5.

¶29

P5; TRUE COPY OF THE ORDER DATED 31.1.2009 IN PUNCHA APPEAL NUMBER C 10.51143/2008 PASSED BY THE 2ND RESPONDENT.

¶30

P6: TRUE COPY OF THE SETTLEMENT ORDER DATED 31.12.03 BEARING NO DIS/4760/83/A2 OF PUNCHA SPECIAL OFFICER ALAPPUZHA.

¶31

P7: TRUE COPY OF THE ORDER DATED 22.12.1989 BEARING NO A3 2753/89 OF PUNCHA SPECIAL OFFICE ALAPPUZHA

¶32

P8; TRUE COPY OF THE THE ORDER DATED 9.5.2005 BEARING NO A4 295/2005 OF PUNCHA SPECIAL OFFICER, ALAPPUZHA.

¶33

P9: THE PUCHA APPEAL DATED 4.10.08 THEKKEVAVAKADU PADASEKHARAM “NELLULPADHL SAMITHI “

¶34

P10 TRUE COPY OF THE PUBLIC MEETING NOTICE SUBMITTED THEKKEVAVAKADU PADASEKHARA NELLULPADAKA SAMITHY.

¶35

P11 TRUE COPY OF THE SURVEY SKETCH DATED 25.9.1986 REGARDING PETITIONER'S PROPERTY IN KAINAKARI VILLAGE.

¶36

P12; TRUE COPY OF THE MAHZHAR AND COMMISSION REPORT DATED 6.7.2006 IN O.S 378/2006 IN MUNSIFF'S COURT ALAPPUZHA.

¶37

P13; TRUE COPY OF THE HEARING NOTE DATED 9.12.2008 FILED COUNSEL FOR PETITIONER BEFORE THE 2ND RESPONDENT IN PUNCHA APPEAL NO C-10/51148/08.

¶38

P14; TRUE COPY OF THE JUDGMENT DATED 22.5.09 IN WPC NO 11098/09. P15: TRUE COPY OF THE APPLICATION DATED 3.6.2009 FILED BY THE PETITIONER.

¶39

P16 TRUE COPY OF THE APPLICATION DATED 30.6.2009 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

¶40

P17: TRUE COPY OF THE LETTER DATED 8.10.2009 FROM THE 2ND RESPONDENT.

¶41

P18: TRUE COPY OF THE LETTER DATED 23.10.09 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

¶42

WP(C).No. 9394 of 2010 (Y)

¶43

P19: TRUE COPY OF THE JUDGMENT DATED 25.1.2010 IN CONTEMPT CASES (C) NO 1268/09

¶44

P20 TRUE COPY OF THE ORDER DATED 23.12.2009 PASSED BY THE 2ND RESPONDENT.

¶45

/TRUE COPY/

¶46

K.V. P.S.TO JUDGE

¶47

K. Vinod Chandran, J

¶48

---------------------------------------W.P.(C).No.9394 of 2010-Y

¶49

----------------------------------------Dated this the 14th day of November, 2017

¶50

JUDGMENT

¶51

The petitioner is aggrieved with Exhibit P20 order of the Government. Exhibit P20 is with respect to a water channel, passing through the petitioner's property as asserted by the petitioner. The respondents 4 and 5 however assert that the channel itself does not pass through the property and flows through the boundary of the property. The grievance of the petitioner is that if the water is allowed to flow through the said channel, it would cause erosion of sand from his land and resultant damage to his land.

¶52

The learned Counsel for the petitioner submits that as early as in the year 2006, the petitioner had approached the Munsiff Court, Alappuzha with a suit, seeking injunction against the defendants and their men from trespassing upon the plaint schedule property or the channel lying therein and from opening the RCC sluice without constructing a protection wall on the northern boundary of the channel using stone and cement in 50cm width and

¶53

¶54

WP(C) No.9394 of 2010

¶55

45cm metre length. The defendants and their men were restrained from opening the sluice or taking any steps to dewater the holdings of the defendants in the Padasekharam through the scheduled property without constructing the specified protection wall as is seen from Ext.P1 judgment.

¶56

Later on, the Punja Special Officer had passed Exhibit P3 order, wherein she had directed the opening of the water channel so as to irrigate the paddy lands. The order at Exhibit P3 was challenged in an appeal before the District Collector, which resulted in Exhibit P5. The District Collector noticed that the decree restraining the defendants from opening the sluice in the water channel passing through the petitioner's property, specifically saved any action by the Punja Special Officer under the Kerala Irrigation Works (Execution of Joint Labour) Act, 1967 [for brevity the 'Act 20 of 1967']. The District Collector noticed that the sluice was opened only in every two months and the Punja Special Officer had directed opening of the sluice on the report of the Village Officer. The District Collector upheld the order of the Punja Special Officer overruling the contention of the petitioner that the opening of the sluice was in violation of the injunction order. The District Collector

¶57

¶58

WP(C) No.9394 of 2010

¶59

also directed to ensure that no erosion of sand is occurring from the land of the petitioner. Taking a conciliatory approach, the District Collector also observed that a retaining wall be constructed at the expense of the Padasekhara Samithy.

¶60

The petitioner, not being satisfied with the said order had approached this Court, the judgment of which is seen from Exhibit P14. This Court directed the District Collector to see that the direction to construct the retaining wall is specified to be completed, within a time frame as per Exhibit P14. In pursuance to Exhibit P14, Exhibit P20 order was passed, wherein, again the District Collector directed a fencing to be made, within a period of three months to avoid the erosion. The petitioner challenges Exhibit P20 on the contention that the same is in violation of the orders passed by the Civil Court as per Exhibit P1. It is also submitted that the construction of a retaining wall has to be made out of concrete and otherwise it would cause erosion of sand from the petitioner's property.

¶61

This Court by interim order dated 25.09.2017 directed the District Collector to place on record the report as to the steps taken within two weeks. The learned Government Pleader has filed

¶62

¶63

WP(C) No.9394 of 2010

¶64

a memo, producing the report of the District Collector. The report of the District Collector indicates that as of now, the water channel is filled up with rubble and there is no flow of water.

¶65

The learned Counsel for the 5th respondent submits

¶66

that only due to the refusal of the Padasekhara Samithi, the channel was filled up with rubble more by reason of its disuse. The respondents 4 and 5 are depending upon the source of water to irrigate their paddy fields and the easiest method available is to irrigate the fields of the 5th respondent with water coming through the channel, adjacent to the petitioner's property. Now water is used from other sources which is causing untold difficulties and has resulted in reduction of the yield is the submission.

¶67

The petitioner has been harping on the injunction order passed at Exhibit P1. It is to be noticed that the Civil Court had specifically observed that the decree would not in any way affect the authority of the Punja Special Officer under Act 20 of 1967. The power of the District Collector, Punja Special Officer and an Officer authorised under Section 3 or 4 delineated in Section 6, is extracted hereunder:-

¶68

“The District Collector, the Punja Special Officer or any officer authorised by the Government under

¶69

¶70

WP(C) No.9394 of 2010

¶71

section 3 or section 4 may, subject to the provisions of section 5, exercise such powers and perform such duties as may be prescribed for the collective benefit of the majority of proprietors in matters connected with irrigation”.

¶72

The reservation made by the Civil Court is based on Section 10(a) of Act 20 of 1967; which ousts the jurisdiction of the Civil Courts. Section 6 specifically enables the Punja Special Officer to exercise powers and perform duties as may be prescribed for the collective benefit of the majority of proprietors in matters connected with irrigation.

¶73

In the present case, admittedly there is a Padasekharam, which has to be irrigated. The petitioner and respondents 4 and 5 are also persons who hold paddy fields in the locality. The case of the 5^th respondent is that he could not irrigate by reason only of the obstinacy of the petitioner in not allowing the sluice to be opened. The Punja Special Officer by Exhibit P3 found that there is a requirement of opening the sluice for irrigating the paddy fields in the locality. The District Collector also, in appeal, affirmed the orders of the Punja Special Officer. The District Collector went a step further and directed the Padasekhara Committee to construct a retaining wall, which was only a

¶74

¶75

WP(C) No.9394 of 2010

¶76

conciliatory approach.

¶77

There is nothing in Exhibit P5 to indicate that there was a direction to construct a retaining wall of concrete itself. The direction in Exhibit P20 is only to construct a retaining wall of shrubs and brushes, which would stop the erosion of sand. The Punja Special Officer shall see to it that the Padasekhara Committee carry out the said direction as has been ordered in Exhibit P20 and open the sluice for the purpose of irrigation of the fields.

¶78

The District Collector has also ordered in Exhibit P20 that the Principal Agricultural Officer should make a request for allotment of money to construct a permanent retaining wall, from the annual budget. The Principal Agricultural Officer, the 6th respondent, would request the appropriate department in the Government for allotment of such money. However, the irrigation of the fields cannot wait till a permanent structure is constructed. Hence, for the time being, as directed in Exhibit P20, a natural retaining wall shall be constructed of shrubs and brushes. The sluice shall be opened, if the Punja Special Officer finds it neccessary for the collective benefit. It will be possible for the

¶79

¶80

WP(C) No.9394 of 2010

¶81

petitioner to construct a retaining wall in his property, if he feels the natural flow would cause erosion of sand. The natural flow cannot be thwarted especially when it irrigates cultivable paddy fields and it is the land-owner's responsiblity to take measures to protect his

¶82

property. Exhibit P1 judgment is also to that effect, since the powers of the Punja Specil Officer as per Act 20 of 1967 was reserved.

¶83

With the above observation, the writ petition is disposed

¶84

of. There shall be no order as to costs.

¶85

sb-vku/-

¶86

Sd/- K.Vinod Chandran Judge.

¶87

[ true copy ]

Ouseph Thomas @ a.J.Thomas v. State of Kerala

Case brief

What is this about?

What did the court decide?

Ouseph Thomas @ a.J.Thomas v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M. Muhammed Ali Vs District Collector

Reni Koyipram Vs T Madhu

Suma Vs State of Kerala

M/S. Silk Souk Vs State of Kerala

Somtech Computers Vs the Executive Chairman

Saleem.C. Vs the Chief Coordinator & District Collector, Akshya Project, Kozhikode