IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 WP(C).No. 25859 of 2011(F) ---------------------------------------- PETITIONER(S): ------------------------ 1. VALSA PAULOSE, W/O.LATE C.K.PAULOSE, AGED 62 YEARS, CHAKIATH HOUSE, CHERANALLOOR, KOCHI-682 034. 2. PAULSON PAULPOSE, S/O.LATE C.K.PAULOSE, AGED 35 YEARS, CHAKIATH HOUSE, CHERANALLOOR, KOCHI-682 034. 3. PETSON PAULOSE, S/O.LATE C.K.PAULOSE, AGED 32 YEARS, CHAKIATH HOUSE, CHERANALLOOR, KOCHI-682 034. BY ADVS. SRI.SHAJI P.CHALY, SRI.S.GOPAKUMAR, SRI.R.SANJITH, SMT.S.K.SREEKALA. RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2. THE VILLAGE OFFICER, CHERANALLOOR VILLAGE, CHERANELLOOR, ERNAKULAM, PIN-682 034. 3. THE REVENUE DIVISIONAL OFFICER, FORTKOCHI REVENUE DIVISION, FORT KOCHI, ERNAKULAM, PIN-682 001. Kss ..2/- ..2.... WPC.NO.25859/2011 4. THE SUB INSPECTOR OF POLICE, CHERANELLOOR POLICE STATION, KOCHI-682 034. 5. THE DIRECTOR GENERAL OF POLICE, KERALA STATE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM, PIN-695 001. 6. THE CITY POLICE COMMISSIONER, KOCHI CITY, OFFICE OF CITY POLICE COMMISSIONER, REVENUE TOWER, ERNAKULAM, PIN-682 011. *ADDL.R7 IMPLEADED: R7. C.K.RAJU, CHAKKERITHARA HOUSE, CHERANELLOOR PO, ERNAKULAM - 682 034. (*ADDL.R7 IS IMPLEADED AS PER ORDER DTD. 25/10/2011 IN I.A.NO.16814/2011) R1 TO R6 BY GOVERNMENT PLEADER SMT. SANJEETHA ADDL.R7 BY ADVS. SRI.P.B.SAHASRANAMAN, SRI.T.S.HARIKUMAR, SRI.K.JAGADEESH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/12/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.25859/2011 F APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF THE IMPUGNED ORDER ISSUED BY THE 2ND RESPONDENT DATED 23/9/2011. EXHIBIT P2: TRUE COPY OF THE BASIC REGISTER PERTAINING TO PETITIONERS' PROPERTY. EXHIBIT P3: TRUE COPY OF THE JUDGMENT IN WPC.12418/11 DT.13/6/11. EXHIBIT P4: TRUE COPY OF THE PROCEEDINGS NO.K.DIS 6620/10/81. EXHIBIT P5: TRUE COPY OF THE PROCEEDINGS NO.K.DIS 25155/10/81. EXHIBIT P6: TRUE COPY OF THE SITE INSPECTION REPORT PREPARED BY THE ADDL.TAHSILDAR, KANAYANNUR TALUK DT.20/5/11. EXHIBIT P7: TRUE COPY OF THE INTERIM ORDER PASSED BY THE LEARNED LSGD, TRIBUNAL IN APPL.NO.458/11 DT.27/6/11. EXHIBIT P8: TRUE COPY OF THE INTERIM ORDER PASSED IN WPC 21713/11 DATED 9/8/2011. EXHIBIT P9: TRUE COPY OF THE JUDGMENT PASSED IN WPC.21713/11 DT.6/9/11. EXHIBIT P10: TRUE COPY OF THE ORDER OF 3RD RESPONDENT DT.24/5/11. EXHIBIT P11: TRUE COPY OF THE EXPLANATION SUBMITTED BY PETITIONERS DT.27/5/11. EXHIBIT P12: TRUE COPY OF JUDGMENT IN WPC.20679/11 DT.2/8/11. EXHIBIT P13: TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DT.16/8/11. EXHIBIT P14: TRUE COPY OF THE BUILDING PERMIT BEARING NO. C4-2767/11 DT.25/4/11. Kss ..2/- ..2.... WPC.NO.25859/2011 F EXHIBIT P15: TRUE COPY OF APPROVED BUILDING PLAN AS PER EXT.P14. EXHIBIT P16: TRUE COPY OF THE DOCUMENT BEARING NO.2606/73. EXHIBIT P17; TRUE COPOY OF THE DOCUMENT BEARING NO.5787/05. EXHIBIT P18: TRUE COPY OF THE DOCUMENT BEARING NO.6723/05. EXHIBIT P19: TRUE COPY OF THE PROCEEDINGS OF THE EX.ENGINEER NH(B)DN.KODUNGALLUR DT.8/9/04. EXHIBIT P20: TRUE COPY OF THE CASH RECEIPT ISSUED FOR ACCESS ROAD FORMATION DT.7/9/04. EXHIBIT P21: TRUE COPY OF THE PHOTOGRAPHS SHOWING THE ACCESS ROAD ABUTTING NH - 17 AND COMPOUND WALL. EXHIBIT P22: TRUE COPY OF THE BILL ISSUED BY THE COCONUT DEVELOPMENT BOARD DT.29/8/11. EXHIBIT P23: TRUE COPY OF THE CASH RECEIPT ISSUED BY THE COCONUT DEVELOPMENT BOARD DT.29/8/11. EXHIBIT P24: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS TO THE HON'BLE CHIEF MINISTER AND OTHERS. RESPONDENTS' EXHIBITS: R7(A): COPY OF THE COMMISSION REPORT IN O.S.NO.442 OF 2010, DTD. 20/05/2010. R7(B): COPY OF THE REPORT AND SKETCH OF THE ASSISTANT ENGINEER, DTD. 26/05/2011 (ALONG WITH ENGLISH TRANSLATION). /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J ....................................................... W.P.(C).25859/2011 .............................................. Dated this the 12th day of December, 2011 JUDGMENT Petitioners are owners of 3.49 acres of land, situated in R.S.No.37/6 of Block No.4 of Cheranalloor Village. In this writ petition their grievance is against Ext.P1, a prohibitory order dated 23.9.2011, issued by the Village Officer, Cheranalloor, prohibiting the petitioners from developing the land which is stated to be for the purpose of planting coconut saplings. 2. Two reasons are stated in Ext.P1. First reason is that the land is a wet land and that in connection with its reclamation, several complaints have been received. The second reason is that the developmental activities were in violation of the provisions contained in the Kerala Land Utilization Order. 3. Insofar as the finding that the land in question is a wet land is concerned, petitioners refer to Ext.P2 extract of the Basic Tax Register where the land in question is shown as a dry land. Further in paragraph 9 of the counter affidavit filed by the third respondent, it is stated that the land in question has been W.P.(C).25859/11 2 recorded as a dry land in the resurvey records which came into force in 1998. Although there is a suggestion that the land was originally a wet land, fact remains that as of now both in the resurvey records and in the Basic Tax Register, the land in question has been categorized as dry land. Therefore, the premise on which Ext.P1 has been issued that the land in question is a wet land does not seem to be having any factual basis. Even otherwise if at all, it is assumed that the land in question is a wet land, only the provisions of the Kerala Conservation of Paddy Land and Wet land Act, can apply. If the provisions of the said Act were to apply, only the District Collector is the competent authority to initiate any action and neither the Village Officer nor the RDO has any competence to issue any order 4. The second reason stated in Ext.P1, as already stated, is that the developmental activities of the petitioners are in violation of the provisions of the Kerala Land Utilization Order. Insofar as the provisions of the Land Utilization Order are concerned, the said order can apply only in respect of the lands where food crops, as defined under clause 2(b) thereof, are/were cultivated. The said order enables the District Collector to require the holder of the land to grow specified crops and there are also prohibitions that W.P.(C).25859/11 3 the land cultivating with any food crop, shall not be cultivated any other food crops. Therefore, what is to be noticed is that the provisions of the Land Utilization order can have no application in case where developmental activities of the land is carried on. Therefore, the land Utilization order could not have any relevance in a case of this nature. 5. Thus, both the reasons stated in Ext.P1, the prohibitory order dated 23.9.2011 issued by the Village Officer are unsustainable. If that be so, Ext.P1 has to be set aside and I do so. 6. However, admittedly a water channel is passing through the 3.49 acres of land in R.S.37/06 of Cheranalloor Village, owned by the petitioners. The seventh respondent, the resident in the neighbourhood is more concerned about the protection of the said water channel. Petitioners submit that the water channel is protected by constructing rubbled retaining wall on both sides and that it is not their intention to fill up any portion of the water channel or to obstruct the water channel in any manner and I record the submission. W.P.(C).25859/11 4 7. Therefore, the writ petition is disposed of quashing Ext.P1 and directing that in case, the petitioners interfere with the water channel in any manner, it will be open to the Panchayat, the Village Officer or the RDO to issue appropriate directions, compelling the petitioners to honour their commitment which has been recorded as above. ANTONY DOMINIC, Judge mrcs