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2022 DIGILAW 983 (KER)

C. J. Shaju S/o M. C. Jose v. State of Kerala

2022-11-16

T.R.RAVI

body2022
JUDGMENT : T.R. RAVI, J. 1. As the issues involved in both these writ petitions are inter-related and as the petitioner in W.P. (C) No. 41834 of 2018 is the 1st petitioner in W.P. (C) No. 33060 of 2017, the writ petitions are heard and disposed of together. The 2nd petitioner in W.P. (C) No. 33060 of 2017 is the father of the 1st petitioner. The petitioners are agriculturists. They own 1 Acre 19 cents of kole land in Sy. Nos. 842 and 843/5 and 6 of Thottipal Village, Mukundapuram Taluk. The paddy land is located in a large padasekharam. The irrigation activities of the area were being monitored by one Committee, the representatives of which are impleaded as respondents 4 and 5 in W.P. (C) No. 33060 of 2017. The 7th respondent (Parappookkara Grama Panchayat) in W.P. (C) No. 33060 of 2017 is the 1st respondent in W.P. (C) No. 41834 of 2018. There is a public irrigation canal in the area. The petitioners submit that they cannot irrigate their lands with the water from the said canal, since their land is situated at a higher level. The petitioners have detailed the manner in which the water for the irrigation is brought through the canal from the Peechi Dam and the various activities which had led to the water not being available to the petitioners’ land. The above aspects may not be fully required for considering the issue presently involved in these writ petitions. W.P. (C) No. 33060 of 2017 was filed praying for a direction to the Officers of the Agricultural Department and the Secretary of the Konthipulam Kole Karshaka Samithi to take necessary steps for increasing the depth of the irrigation canal bringing water from Peechi Dam to the kole lands and provide adequate water in the paddy field of the petitioners; for a direction to the 2nd respondent to give permission to the petitioners to dig a pond or well having an extent of 16 Sq. Ft. in their paddy field, enabling them to ensure adequate water supply in the paddy field; and for a direction to the 6th respondent to repair the irrigation canal having a depth and breadth of 3 Metres passing through the kole land and provide water to paddy fields. 2. Ft. in their paddy field, enabling them to ensure adequate water supply in the paddy field; and for a direction to the 6th respondent to repair the irrigation canal having a depth and breadth of 3 Metres passing through the kole land and provide water to paddy fields. 2. The Agricultural Officer rejected the request made by the petitioners as per the order dated 1.9.2014, stating that the request cannot be considered in the light of the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (hereinafter referred to as the 2008 Act). 3. Pending consideration of W.P. (C) No. 33060 of 2017, the petitioner, on coming to know that the application for permission to dig the well must be preferred before the Panchayat, applied for the same. A building permit was issued on 21.11.2018, which has been produced as Ext.P1 in W.P. (C) No. 41834 of 2018. According to the petitioners, when the digging of the well commenced, the permission was cancelled by order dated 15.12.2018, which has been produced as Ext.P2 in W.P. (C) No. 41834 of 2018. The reason stated in Ext.P2 is that the petitioner was carrying out work in violation of the permit and that the Panchayat on further consideration came to understand that digging of a well cannot be permitted in the land in question. It was also stated that the permit can be restored if the petitioner produces permission from the Revenue Officers and the Officers of the Agricultural Department for digging the well. It is challenging the said order that W.P. (C) No. 41834 of 2018 is filed. 4. Counter affidavits have been filed by the respondents. The Panchayat has in their counter affidavit submitted that there were complaints from the Kole Karshaka Samithi. It is also stated that a telephonic message was received from the Tahsildar, Mukundapuram that the property is a wetland and the Panchayat has no authority to grant permission to dig the well and further directing the Panchayat to issue stop memo to the petitioner. It is also stated that since the application was submitted online, the Panchayat was not aware of the fact that the proposed well was to be dug in the middle of a paddy field. It is also stated that since the application was submitted online, the Panchayat was not aware of the fact that the proposed well was to be dug in the middle of a paddy field. During the hearing, the Panchayat filed an additional statement stating that at present the well which had been dug is no longer existing and is filled with grass and plants. A memo was filed by the Government Pleader producing communications issued by the Officers of the Irrigation Division, stating that currently, sufficient quantum of water is distributed to the paddy fields and there is no requirement for a well. The earlier condition of the well/pond which had been dug is available from Ext.R7(a) photograph produced by the Panchayat in W.P. (C) No. 33060 of 2017. 5. Heard Sri K.G. Balasubramanian on behalf of the petitioners in both the writ petitions, Smt. M.R. Reena for the 7th respondent in W.P. (C) No. 33060 of 2017/1st respondent in W.P. (C) No. 41834 of 2018 and Sri Rajeev Jyothish George, Government Pleader on behalf of the State and its officials. 6. Chapter 14 of the Kerala Panchayat Building Rules, 2011 (hereinafter referred to as the KPBR, 2011) deals with digging of wells. Rule 91 says that no new well shall be dug without the permission of the Secretary. A person who intends to dig the well is to submit an application in the form in Appendix A to the Secretary together with a site plan and document to prove the ownership. The site plan has to show the position and dimension of the well and all existing and proposed buildings and structures in the site and within 7.5 metres radius from that well. The Rule is silent regarding the nature of the land in which a well can be permitted to be dug. The counsel referred to the provisions of the Kerala Irrigation and Water Act, 2003 (hereinafter referred to as the 2003 Act) in particular, to Section 4, which deals with regulation on abstraction of water from water course. The provisions of the Act may not be applicable to the facts of this case since abstraction of water from a water source is involved and what is sought is permission to dig a well in a property owned by the petitioners. The provisions of the Act may not be applicable to the facts of this case since abstraction of water from a water source is involved and what is sought is permission to dig a well in a property owned by the petitioners. The 2003 Act deals substantially with irrigation works by the Government and by the Local Self Government and makes provisions for the acquisition of private irrigation works. Irrigation work is defined to include a well or a pond. However, the Act does not contain any provision that deals with digging of a well or a pond in a private paddy field. The only specific provision regarding digging of well is the one contained in the KPBR, 2011. The provisions of the 2008 Act also do not speak of any prohibition of digging of well. In fact, Section 2(12) of the Act defines “paddy land” to include ponds and canals. The definition would suggest that paddy land can also have a pond in its midst. The prohibition contained in the 2008 Act is in Section 3 which says that on and from the date of commencement of the Act the owner, occupier or the person in custody of any paddy land shall not undertake any activity for the conversion or reclamation of such paddy land, except in accordance with the provisions of the Act. Since a paddy land includes a pond, the said prohibition cannot be understood to mean that digging a well or a pond inside paddy land would amount to conversion or reclamation of the paddy land. 7. As long as there is no prohibition for digging of a well, the only relevant aspect that may have to be considered is whether the suspension/revocation of the permit granted to the petitioner for digging a well was in accordance with law. Rule 18 of KPBR, 2011 deals with suspension and revocation of permits. As per the Rule, the Secretary shall stay, suspend or revoke any permit issued under these rules if he is satisfied that the permit was issued by mistake or that a patent error has crept into it, or that the permit happened to be issued on misrepresentation of fact or law or that the construction if carried on, will be a threat to life or property. As per the proviso, before revoking the permit, the owner of the permit shall be given 7 days’ notice, and an opportunity of being heard to explain and the explanation shall be duly considered by the Secretary. Ext.P2 in W.P. (C) No. 41834 of 2018 does not in any manner evince confidence as to its propriety and legality. The order has been issued on the basis of a telephone call from the Tahsildar, Mukundapuram. There is no reference to any notice being issued to the holder of the permit, much less any hearing of the holder of the permit before an order against him was issued. If the reason was that there is a violation of the permit conditions, that ought to have been clearly stated in Ext.P2. The only other reason stated is that permission cannot be granted for digging a well in the land in question and that the petitioner may produce necessary permission from the Revenue Officers and the Agricultural Officers for digging the well, for the purpose of restoration of the permit. The reasoning is contradictory and confusing. If no permission can be granted in the land in question, there is no question of any permission being granted by the Agricultural Officers or the Revenue Officers. There is no law pointed out which necessitates the permission of the Revenue Officers or the Agricultural Officers for digging the well on a private property. The counter affidavit filed by the Panchayat also does not refer to any such Rule or a legal provision. 8. In the above circumstances, the petitioners are entitled to the reliefs in the writ petitions. The following directions are hence issued. 9. The decision contained in the letter dated 15.12.2018 produced as Ext.P2 in W.P. (C) No. 41834 of 2018 is quashed. The 1st respondent in W.P. (C) No. 41834 of 2018 is directed to restore the building permit issued on 21.11.2018 and produced as Ext.P1 in the said writ petition and allow the petitioner to carry out the work so long as it is not against the conditions in the permit. The 1st respondent in W.P. (C) No. 41834 of 2018 is directed to restore the building permit issued on 21.11.2018 and produced as Ext.P1 in the said writ petition and allow the petitioner to carry out the work so long as it is not against the conditions in the permit. Since there are no sufficient materials regarding the adequacy or inadequacy of the irrigation canal from Peechi Dam to the Kole lands in question, no directions are being issued for increasing the depth of the canal, which is a matter which the Irrigation Authorities have to consider, having regard to the present circumstances. Necessary orders shall be issued by the respondent Panchayat within three weeks from the date of receipt of a certified copy of this judgment.