J U D G M E N T

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Dated this the 24th day of August, 2021 This writ petition has been filed by the father on behalf of the petitioner-son, who is mentally incapacitated by Moderate Mental Retardation, seeking to quash Ext.P9 and to issue such other orders this Court deems fit.

2. The petitioner is owner of 6.07 Ares of property in Kuttoor Village in Tiruvalla Taluk. On the eastern side of the property, there is a Puramboke Thodu. The MC Road is also on the eastern side. The petitioner has no direct access to MC Road or to any other road. The petitioner’s father entered into Ext.P3 contract with the Assistant Executive Engineer, Minor Irrigation Department, under which he was permitted to put up concrete slab across the said Mathirampuzha Thodu for road access, on condition that the width of the Thodu shall not be reduced and temporary pipe and soil that may be used for laying slab, should be removed immediately after the construction work.

3. When the petitioner started work, the Village Officer issued Ext.P4 Stop Memo. Later, the Sub Collector, invoking the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, passed Ext.P6 order requiring the petitioner to restore the illegally claimed land and Thodu, to its original position. The revision petition preferred by the petitioner against Ext.P6 order was dismissed by the Government holding that Ext.P3 Agreement is illegal and unauthorised.

4. The petitioner contends that he has acted on the basis of a legally entered into agreement, without violating the terms of the agreement. The petitioner has only put up concrete slabs for road access and there is no encroachment and reclamation warranting invocation of the provisions of the Act, 2008.

5. The learned counsel for the petitioner pointed out that the road access issue is not affecting the petitioner alone.

Other local residents also need road access across the Thodu. The Assistant Executive Engineer has addressed this issue by sending Ext.P10 communication to the Revenue Divisional Officer, wherein it has been stated by the Assistant Executive Engineer that the construction for road access across the Thodu can be permitted to alleviate the difficulties of local residents on condition that laying of slabs should not affect free flow of water through the Thodu and permission from the Chief Engineer of Irrigation Department is obtained.

6. The learned counsel for the petitioner further relied on Ext.P11 Decision of the Kuttoor Grama Panchayat. Ext.P11 would reveal that one V.M. Sadasivan Pillai and others have requested the Panchayat to grant permission to lay slab over the Thodu for road access and the Panchayat has resolved to obtain permission from the Government Departments concerned for erecting pillars to lay slabs, without affecting free flow of water through the Thodu.

7. The Revenue Divisional Officer has sent Ext.P12 communication to the said V.M. Sadasivan Pillai intimating that the Tahsildar (Land Records) along with the Assistant Executive Engineer, Minor Irrigation Department, has inspected the area and required V.M. Sadasivan Pillai to obtain necessary permission from the Chief Engineer, Irrigation Department. The said Sadasivan Pillai submitted Ext.P13 request to the Grama Panchayat enclosing a Plan and the permissions obtained from authorities and requested the Panchayat to take necessary steps.

8. The 1st respondent filed statement and contested the writ petition. The 1st respondent stated that the Thodu is situated in a paddy land area known as Madhurampuzha Padasekharam. Hence, the Thodu has to be maintained to ensure free flow of water for agricultural and irrigation purposes. Any construction activity affecting the free flow of water will be detrimental to the cultivating farmers. In view of Section 2(iii) of the Act, 2008, changing drainage channels, ponds, canals and ridges would also amount to conversion. The Assistant Executive Engineer, who signed Ext.P3 Agreement, has no