Allowed

Maruvakkad Padasekhara Karshaka Union v. District Collector

Kerala HC19 Nov 2019WP(C)/16314/2019

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of two writ petitions arising from a District Collector's order regulating paddy cultivation and fishing operations in Maruvakkad Padasekharam. The Court quashed the order for not affording a hearing to all concerned parties and directed the Collector to reconsider the grievance afresh.

What did the court decide?

Impugned order (Ext P2) quashed; first respondent directed to reconsider complainant's request afresh after hearing all concerned within three months.

Maruvakkad Padasekhara Karshaka Union… — Constitutional and Fundamental Rights | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941

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WP(C).No.16314 OF 2019(L)

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PETITIONERS:

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1 MARUVAKKAD PADASEKHARA KARSHAKA UNION

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REG. NO. ER 42/75, CHELLANAM P.O, KOCHI 682 008 REPRESENTED BY THE SECRETARY K.J JACOB K.J JACOB, S/O. JOSEPH, KAITHAVALAPPIL HOUSE, CHELLANAM P.O, KOCHI 682 008

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2 K.J JACOB, S/O. JOSEPH, KAITHAVALAPPIL HOUSE, CHELLANAM P.O, KOCHI 682 008 SECRETARY, MARUVAKKAD PADASEKHARA KARSHAKA UNION.

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BY ADV. SRI.S.SUJIN

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RESPONDENTS:

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1 DISTRICT COLLECTOR CIVIL STATION, KAKKANAD, ERNAKULAM 682 030

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2 THE AGRICULTRAL OFFICER, CHELLANAM, ERNAKULAM DISTRICT 680 008

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3 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001

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4 M.M CHANTHU, S/O. MINNIAN, MANJADI PARAMBIL, CHELLANAM P.O, MARUVAKKAD, KOCHI 682 008

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WPC Nos.16314 & 20026 of 2019

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5 ADDL.R5.DIRECTOR OF FISHERIES VIKAS BHAVAN, THIRUVANANTHAPURAM-33 IS SUO MOTU IMPLEADED AS PER ORDER DATED 20.06.2019.

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6 ADDL.R6.PREMKUMAR VADHIYAR, AGED 68, S/O.NARAYANAN VADHIYAR, C.C.8/1092, YNP TRUST ROAD, KOCHI, 682 001.

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7 ADDL.R7.SEBASTIAN LALU, AGED 63, S/O.K.J.JOSEPH, KALATHUNGAL HOUSE, ERAMALLOOR P.O., CHERTHALA.

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8 ADDL.R8.N.T.FRANCIS, AGED 67, S/O.LATE N.P.THOMAS, NEDIYAPARAMBIL HOUSE, THURAVUR, CHERTHALA, 688 532.

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ARE IMPLEADED AS PER ORDER DATED 17/7/2019 IN I.A.NO.02/19.

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R1-3 BY GOVERNMENT PLEADER SMT. PRINCY XAVIER R4 BY ADV. SMT.G.VIDYA R6-8 BY ADV. SRI.K.S.MADHUSOODANAN R6-8 BY ADV. SRI.M.M.VINOD KUMAR R6-8 BY ADV. SRI.P.K.RAKESH KUMAR R6-8 BY ADV. SRI.K.S.MIZVER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.11.2019, ALONG WITH WP(C).20026/2019(C), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC Nos.16314 & 20026 of 2019

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941

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WP(C).No.20026 OF 2019(C)

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PETITIONER:

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CHANTHU, AGED 73 YEARS S/O. MINNIYAN, MANJADI PARAMBIL (H), CHELLANAM P. O., MARUVAKKAD, ERNAKULAM DISTRICT - 682008.

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BY ADV. SMT.G.VIDYA

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, AGRICULTURAL DEPARTMENT, THIRUVANANTHAPURAM -695001

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2 DISTRICT COLLECTOR CIVIL STATION, KAKKANAD, ERNAKULAM - 682030

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3 PRINCIPAL AGRICULTURAL OFFICER ERNAKULAM DISTRICT - 682030

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4 CHIEF ENGINEER DEPARTMENT OF IRRIGATION, OFFICE OF THE CHEF ENGINEER, IRRIGATION AND ADMINISTRATION, ERNAKULAM - 682030

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WPC Nos.16314 & 20026 of 2019

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5 REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE,

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FORT COCHIN - 682001.

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6 THAHASILDAR, COCHIN TALUK OFFICE, ERNAKULAM DISTRICT - 682008.

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7 VILLAGE OFFICER VILLAGE OFFICE, CHELLANAM, ERNAKULAM DISTRICT - 682008.

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8 THE AGRICULTURAL OFFICER CHELLANAM, ERNAKULAM DISTRICT - 682008.

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9 SECRETARY

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CHELLANAM GRAMA PANCHAYATH, CHELLANAM, ERNAKULAM DISTRICT - 682008.

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10 MURUVAKKAD PADASEKHARA KARSHAKA UNION REG. NO.ER/75, CHELLANAM P. O., REPRESENTED BY THE SECRETARY K. J. JACOB, S/O. JOSEPH, KAITHAVALAPPIL (H), CHELLANAM P.O., ERNAKULAM - 682008.

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BY GOVERNMENT PLEADER SMT. PRINCY XAVIER R10 BY ADV. SRI. SUJIN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.11.2019, ALONG WITH WP(C).16314/2019(L), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC Nos.16314 & 20026 of 2019

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P.B.SURESH KUMAR, J.

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W.P.(C) Nos.16314 & 20026 of 2019

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Dated this the 19^th day of November, 2019

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J U D G M E N T

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These writ petitions arise from an order passed by the District Collector, Ernakulam on 13.12.2018 concerning the

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paddy cultivation and fishing operations at Maruvakkad padasekharam. W.P.(C) No.16314 of 2019 is instituted by an association of the owners of the paddy fields in the padasekharam, challenging the order of the District Collector and W.P.(C) No.20026 of 2019 is instituted by one of the owners of the paddy fields in the padasekharam seeking orders for implementing the order of the District Collector. These writ petitions are, therefore, disposed of by this common judgment, referring to the parties and Exhibits as they appear in W.P.(C) No.16314 of 2019.

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WPC Nos.16314 & 20026 of 2019

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Paddy cultivation and fishing operations are

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carried on intermittently in the padasekharam, the area of which is approximately 435 acres. In terms of the accepted norms, fishing operation is permissible in the padasekharam only from 1^st of November till 30th of April of the succeeding year and paddy cultivation is carried on in the padasekharam during the remaining period. It is stated by the petitioners that most of the owners of the paddy fields in the padaesekharam are small holders and are not indulging in paddy cultivation as the same is not financially viable for them. It is also stated by the petitioners that the income of the owners is, therefore, mainly from the fishing operations carried on during intermittent period by engaging contractors. It is also stated by the petitioners that the contractors who are assigned the right to conduct fishing operations in a large area like the instant one have to make huge investments for undertaking the activity. It is also stated that as per the practice prevailing, the contractors are raising the funds required for the same by

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WPC Nos.16314 & 20026 of 2019

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availing loans from banks and other financial institutions. Further, as per the prevailing practice, contractors have to make the payments due to the owners of the paddy fields in advance. It is, therefore, necessary that the right to conduct fishing operations in a given year shall be assigned to the contractor concerned sufficiently in advance so as to enable him to raise the funds required for the same and also to disburse the funds to the members of the association. It is also stated by the petitioners that one among the owners of the paddy fields, namely, the fourth respondent has approached the first respondent, contending that if the right to conduct fishing operations in the padaesekharam is assigned/auctioned in advance, the contractor to whom the right is assigned would start sowing fish seeds without waiting for the end of the paddy harvest and would also open the sluice intended for regulation of flow of water for both the activities and permit salt water in the padasekharam for the fishing operations, which would damage the standing crops. On the said complaint, the first

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WPC Nos.16314 & 20026 of 2019

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respondent issued Ext.P2 order, in terms of which it was directed that the right to conduct fishing operations in the padasekharam shall not be assigned before 31^st of October and that the sluice shall not be opened before 15th of November. The petitioners are aggrieved by the aforesaid directions in Ext.P2 order. The fourth respondent, who is the petitioner in W.P.(C) No.20026 of 2019 seeks directions for implementation of Ext.P2 order.

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Heard the learned counsel for the petitioners,

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the learned Government Pleader as also the learned counsel for the contesting respondents.

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It is seen that on 20.6.2019, this Court passed

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the following interim order in W.P.(C) No.16314 of 2019:

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“Learned Government Pleader takes notice for the respondents 1 to 3 and seeks time for filing counter affidavit.

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Issue notice by speed post to the 4^th respondent, returnable in three weeks.

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This writ petition is filed basically challenging Ext.P2 order passed by the District Collector dated 13.12.2018, where, the permission to conduct auction was given only from 31^st October of each year.

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WPC Nos.16314 & 20026 of 2019

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According to the petitioners, if the auction is conducted on 31^st of October, it will cause serious prejudice, since the fishing operations cannot be carried out in a proper and effective manner.

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The challenge against Ext.P2 is a serious matter to be looked into by this court after receiving counter from the respective respondents. But the apprehension expressed by the petitioners in respect of the auction can be mitigated by permitting the petitioners to carry on with the auction any time prior to 31^st of October. Accordingly, I do so. But I make it clear that, no kind of fishing activity shall be undertaken by the petitioners or anyone else in the Padasekharam in question, during which period the farmers are expected to cultivate paddy.

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There will be a direction to the additional 5^th respondent, i.e., Director of Fisheries, Vikas Bhavan, Thiruvananthapuram - 33, who is suo motu impleaded, to ensure that no seeds of fish or prawn is released to the farmers before 31.10.2019. The respondents are also directed to ensure that, no other activity other than paddy cultivation is taking place in the paddy field in question.

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Post after a month for counter affidavit”

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In the light of the said interim order, the direction contained in

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Ext.P2 order insofar as it relates to the auction date is not seen given effect to.

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Be that as it may, the essence of the grievance

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voiced by the petitioners, as narrated in paragraphs 3 and 4 in

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WPC Nos.16314 & 20026 of 2019

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W.P.(C) No.16314 of 2019 read thus:

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“3) The cultivation season is from June to October and rest of the period from November to 15^th of April, there will be Prawn cultivation which will be auctioned by the Committee of the Padasekharam. It may be stated here that because of the high cost of cultivation and also inadequacy of workers to conduct agriculture operations, the cultivation has become costly and therefore small cultivators are reluctant to cultivate the lands. Further the paddy cultivation is single crop and the income is very limited. The only income by which the agriculturists are sustained themselves is from the income received out of the prawn cultivation which is entrusted to the contractor.

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The auction of the prawn cultivation is done only from November to April. But the auction is to be conducted in June as the auctioned contractor will have to make preparations mainly to raise funds for the distribution of the amount to the members of the Padasekharam by raising loan. They have to produce the agreement entered into by the auction purchaser with the Padasekharam, before the bank or financial Organisation and on the basis of which loan is sanctioned and which will be repaid after prawn cultivation in March-April. If the auction is delayed in October or November, nobody will come forward to participate the auction as after auction they require 2 months time to make preparations and therefore it will be loss to invest much money for the contract. Last time there is a dispute between the agriculturist which delayed,

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WPC Nos.16314 & 20026 of 2019

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the auction and auction was finally held in the last week of October and the amount fetched was only Rs.10 lakhs instead of Rs.34 lakhs which was the bid amount of the previous year. True copy of the agreement executed by the auction purchaser with the Padasekharam for conducting fishery within the Padasekharam is produced herewith and marked as Exhibit.P1. This will show that the Contractor can enter into the padasekharam only after the harvest of all the agriculturists are over, that will be over only in 15^th of October”.

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It appears to me prima facie that the said grievance needs to be addressed as the same is one pertaining to the right to the members of the petitioner association to put into effective use of their properties. It is on that basis that this Court has passed the interim order dated 20/6/2019. Ext.P2 order does not deal with the aforesaid aspects at all. A close reading of Ext.P2 order indicates that the first respondent has seen only one side of the matter. True, the grievance voiced by the fourth respondent is also a serious matter which needs to be addressed. I do not think that it is for this Court to arrive at the appropriate measures to be taken for protecting and taking care of the interests of both the members of the petitioner association as

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WPC Nos.16314 & 20026 of 2019

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also the individuals who are engaged in paddy cultivation. According to me, it is for the first respondent to delve deep into the issue and arrive at the appropriate measures to be taken, and implement the same.

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In the result, the writ petition is allowed, Ext.P2 order is quashed and the first respondent is directed to consider the complaint of the fourth respondent afresh, after affording an opportunity of hearing to all concerned. Needless to say that while redressing the grievance of individual farmers like the fourth respondent, the grievance of the members of the petitioner association as disclosed by them in the writ petition shall also be addressed, having regard to the practices presently followed not only by the parties but also the contractors who are assigned the right to conduct fishing operations intermittently. The direction aforesaid shall be complied with, within three months.

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Sd/P.B.SURESH KUMAR, JUDGE.

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WPC Nos.16314 & 20026 of 2019

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APPENDIX OF WP(C) 16314/2019

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE AGREEMENT EXECUTED BY THE AUCTION PURCHASER WITH THE PADASEKHARAM FOR CONDUCTING FISHERY WITHIN THE PADASEKHARAM EXHIBIT P2 TRUE COPY OF ORDER NO. L3 84204/16 DT. 13-12-2018 PASSED BY THE DISTRICT COLLECTOR.

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EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DT. 10-06-2019 SUBMITTED BY THE PETITIONERS UNION BEFORE THE DISTRICT COLLECTOR.

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R4 A THE TRUE COPY OF THE REPORT IN MATHRUBHUMI DAILY DATED 21.10.2018

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EXHIBIT R4 B THE TRUE COPY OF THE PADDY PRODUCTION BONUS FOR THE YEAR 2018-2019 EXHIBIT R1(a) TRUE COPY OF THE HEARING NOTICE WITH ENDORSEMENT OF THE PARTIES CONCERNED. EXHIBIT R1(b) TRUE COPY OF THE ATTENDANCE SHEET

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EXHIBIT-R7 (A) PHOTOCOPY OF THE TAX RECEIPT OF 7TH RESPONDENT SY.NOS.27/1 AND 145/2 IN CHELLANAM VILLAGE AT MARUVAKKAD PADASEKHARAM.

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WPC Nos.16314 & 20026 of 2019

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EXHIBIT R7(B) PHOTOCOPY OF THE TAX RECEIPT OF 6TH RESPONDENT IN SY.NO.27/1 AND 25/1 (R.SY.NO.81-1,2) AT MARUVAKKAD PADASEKHARAM.

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EXHIBIT R7(C) PHOTOCOPY OF THE ORDER OF DEPUTY DIRECTOR OF FISHERIES, ERNAKULAM DATED 13.03.2018

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EXHIBIT R7(D) PHOTOCOPY OF THE JUDGMENT IN WP(C) 23972/2018 DATED 21.08.2018 OF THE HONROURABLE HIGH COURT.

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WPC Nos.16314 & 20026 of 2019

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 THE TRUE COPY OF THE REPORT IN MATHRUBHUMI DAILY DATED 21.10.2018.

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EXHIBIT P2 THE TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 13.12.2018.

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EXHIBIT P3 THE TRUE COPY THE PHOTOGRAPHS OF THE PADDY FIELD AND NEAR THODU.

Maruvakkad Padasekhara Karshaka Union v. District Collector

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Maruvakkad Padasekhara Karshaka Union v. District Collector

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