The High Court dismissed an appeal against a Single Judge's order restricting vehicle access to a Government bund for light agricultural use only, finding no jurisdictional error in balancing appellant rights with farmers' interests.
The writ appeal filed by the appellant was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
W.A.No.482 of 2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 4TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943
WA NO. 482 OF 2021
AGAINST THE JUDGMENT IN WP(C) 32062/2019 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER IN W.P.:
VIJAYAN AGED 62 YEARS S/O.RAMANKUTTY, KOKKALLIL HOUSE, UROOB NAGAR, PONNANI, MALAPPURAM679577. BY ADVS. P.B.KRISHNAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN SRI.MANU VYASAN PETER
RESPONDENTS/RESPONDENTS IN W.P.:
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.08.2021, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Dated this the 4th day of August, 2021
SHAJI P.CHALY,J .
This appeal is preferred by the petitioner in W.P.(C) No.32062 of 2019 and R.P.No.95 of 2021 challenging the judgment and order of the learned Single Judge dated 8.1.2021 and 8.2.2021. The writ petition was in fact allowed by the learned Single Judge by setting aside Exhibit P12 order passed by the Revenue Divisional Officer dated 11.10.2019 rejecting the request made by the appellant for allowing vehicle facility through Ponnani – Thrissur Kole Region bund, however declared that the appellant will be entitled only to ply three wheelers with less than 3 tonnes total weight through the bund, for transportation of agricultural produces and implements. According to the appellant the rider added by the learned Single Judge in the Judgment restricting the user of the bund by granting permission to use only three wheelers with less than 3 tonnes total weight is illegal and bad , since there is no object sought to be achieved by making the restriction , especially due to the fact that in Exhibit P9 communication dated 24-06-2019 the construction engineer of the Land Development Corporation Ltd, had made it clear that vehicles with lesser weight can be considered for plying through the bund road.
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respondent No.6 - Construction Engineer, Kerala Land Development Corporation, Thrissur, recommended for permitting usage of small vehicles with a load having a total weight upto 3 tonnes. However, while setting aside Exhibit P12 order passed by the Revenue Divisional Officer, a declaration was made by the Learned Single Judge that the appellant would be entitled for plying only 3 wheelers with less than 3 tonnes total weight through the bund. Therefore, according to the
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appellant, the stipulation in the judgment of the learned Single Judge that 3 wheelers alone can be used by the appellant for transporting agricultural produces and implements causes grave miscarriage of justice to the appellant. It is also the case of the appellant that the 3 wheeler vehicles have only a capacity to carry about 1000 Kgs. and at present there are so many 4 wheeler vehicles in which the appellant could carry the goods upto about 2 to 2.5 tonnes. It was under the said circumstances the appellant filed a review petition before the learned Single Judge seeking to review and modify the judgment, however, the review petition was dismissed holding that there is no error apparent on the face of the record. Therefore, it was contended that the findings rendered by the learned Single Judge to the extent discussed above is illegal, erroneous and unsustainable and further that the learned Single Judge ought to have allowed the appellant to use 4 wheeler vehicles without any categorization of goods.
account the statement filed by 3rd respondent -Revenue Divisional Officer, Thrissur, reaffirming the stand adopted in Exhibit P12 impugned order, as also the counter affidavit filed by the 7th respondent viz., Puthu Kole Committee, represented by its Secretary. Contentions raised by the 7th respondent would be worthwhile to be extracted in order to arrive at a logical conclusion in the issues raised by the appellant in the appeal especially in view of the finding recorded by
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the construction engineer of the land development corporation that the responsibility of protecting the bund after the construction is with the paddy field committee ie the 7th respondent, and they are as follows:
“4) It is submitted that the allegation in para 2 of the writ petition that the bund is now under my control is not correct. It is situated near to Vallyad - Vaidyar Moola Tar road and there is a Panchayath road to reach the Kole land, which was constructed by relinquishing land by the cultivators in the Kole land. About 35 Acres of land in Amayam Hill in which the petitioner has about 12 Acres of land. The balance area in the hill belongs to other different persons. There is no human inhabitation in this Hill area at present. The intention of the petitioner is to transform the hill area to a residential area to develop his real estate business. Therefore the petitioner is claiming motorable access to his property through the bund. Now the hill area is totally used for agricultural cultivation. If it is transformed as a residential area, the entire cultivation in the dry land as well as in the kole land would be destroyed. Therefore, the claim of the petitioner to use the bund as a road to his property is not workable.
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Agricultural Officer without considering the nature of the bund and nature of the soil wherein the bund is constructed. Moreover the 5th respondent submitted the report without considering the fact that there is another bund from the mainland to the Amayam Hill through the Kole land of MadaiKole Committee. The petitioner can reach his property through this bund also during the rainy season. In the dry season, the petitioner can reach the property through the Kole land. Ext. P2 report is filed by the Principal Agricultural Officer, Malappuram, on the basis of Ext. P1 report submitted by the 5th respondent. Even though the petitioner has produced Ext. P2 report, he has not impleaded the Principal Agricultural Officer, Malappuram to explain the circumstances of filing Ext. P2 report. Moreover, Ext. P2 report says that the permission to take small vehicles through the bund should only be with the proper measures to protect the bund.
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bund. Ext. P6 report also says that taking vehicles through the bund would cause its damage.
9)The allegation in para 11 of the writ petition that the 6th respondent is recommending usage of small vehicles through the bund is not correct. The 6th respondent has no right to make such a recommendation. The Ponnani Tahasildar also reported that the bund ending in the property belongs to one Kakkolli Vijayan. There is no road from there. Therefore, there is no question of using the bund as a public road. Ext. P9 also states that usage of vehicles above 3 Tonnes would cause damage to the bund. In the light of the above report, the RDO heard the petitioner and others including me and passed Ext. P12 order rejecting the request of the petitioner. On a perusal of Ext. P12 order, it is clear that the stand taken by the RDO is correct and it is not liable to be interfered. It is issued to protect agricultural activities.
Senior Government Pleader Sri.Tek Chand for the State and its officials and Sri C.M. Mohammed Iquabal for the 7th respondent, and perused the pleadings and
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documents on record.
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Agriculture, also found that only small vehicles can be permitted through the bund. As per Exhibit p4 information, the Kerala Land Development Corporation Limited has also stated that heavy vehicles cannot be permitted through the bund and that only small vehicles can be used for agricultural purposes. In Exhibit P9 letter of the Construction Engineer also it was specifically stated therein that small vehicles of less than 3 tonnes capacity can be permitted to be used for agricultural purposes.
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the farmers in the area and looking at the issue in that perspective, for the primary reason that the bund was constructed to protect the interests of the farmers and regulate paddy cultivation, which is clear from the documents produced by the appellant himself and deliberated above. We are not oblivious of the fact that the bund was constructed by the Government , but that by itself would not digress the purpose for which it was constructed and permit any one to carry out any activity defeating the purpose for which it was constructed. In fact the authority has rejected the relief sought for by the appellant taking into account the reports available on record and realising the fact that what was relevant was the use of the bund for regulating paddy cultivation, which is the predominant purpose for which it was constructed.
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Needless to say, the writ appeal fails, accordingly it is dismissed.
Sd/-
S.MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P.CHALY
smv
JUDGE
2 issues framed by the court
Whether the High Court can interfere with the Single Judge's order restricting vehicular access to the bund to 3-wheelers under less than 3 tonnes.
Whether the restriction imposed by the Single Judge to protect agricultural operations constitutes an error apparent on the face of the record.
Colour shows how this judgement treated each authority
Section 5 of the Kerala High Court Act, 1958Applied¶70
VIJAYAN
STATE OF KERALA
DISTRICT COLLECTOR
REVENUE DIVISIONAL OFFICER
TAHASILDAR
PUTHU KOLE COMMITTEE
S.MANIKUMAR
SHAJI P.CHALY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
S.MANIKUMAR and SHAJI P.CHALY
Parties & counsel
