Kerala High Court
Thomas Chandy vs The State Of Kerala on 20 September, 2017
Author: P.N. Ravindran
Bench: P.N.Ravindran, Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
&
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 14TH DAY OF NOVEMBER 2017/23RD KARTHIKA, 1939
WP(C).No. 36047 of 2017 (E)
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PETITIONER(S):
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THOMAS CHANDY
S/O.THOMAS, AGED 70 YEARS,
VETTIKKAT HOUSE, LANE 12,
TocH SCHOOL ROAD,VYTTILLA,COCHIN-19.
BY ADVS.SRI.ANIL THOMAS(T)
SMT.K.V.RESHMI
SRI. VIVEK THANKA (SENIOR)
RESPONDENT(S):
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1. THE STATE OF KERALA
REPRESENTED BY ITS CHIEF SECRETARY,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2. THE REVENUE SECRETARY,
DEPARTMENT OF REVENUE,SECRETARIAT,
THIRUVANANTHAPURAM-695 004.
3. THE DISTRICT COLLECTOR,
ALAPPUZHA DISTRICT-688 001.
4. MINOR IRRIGATION DIVISION,
THANNEERMUKKOM,ALAPPUZHA,
REPRESENTED BY ITS EXECUTIVE ENGINEER-688 527.
5. PRINCIPAL AGRICULTURE OFFICER,
COLLECTORATE, ALAPPUZHA-688 005.
BY STATE ATTORNEY SRI. K.V. SOHAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 36047 of 2017 (E)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT P1 A TRUE COPY OF THE NOTICE DATED 20.09.2017 ISSUED BY THE
3RD RESPONDENT
EXT P1(A) A TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT
DATED 26.09.2017
EXT.P2 A TRUE COPY OF THE INTERIM REPORT DATED 22.09.2017 ISSUED
BY THE 3RD RESPONDENT
EXT.P2(A) A TRUE COPY OF THE FINAL REPORT DATED 20.10.2017 ISSUED BY
THE 3RD RESPONDENT
EXT.P3 A TRUE COPY OF THE BASIC TAX REGISTER COPY.
EXT.P4 A TRUE COPY OF THE RESIGNATION LETTER DATED 30.04.2017
SUBMITTED BY THE PETITIONER
EXT.P4(A) A TRUE COPY OF THE FORM NO.DIR 12 DATED 15.06.2017
EXT.P5 A TRUE COPY OF THE PROCEEDINGS DATED 12.11.2014 IS THE
DISTRICT COLLECTOR,ALAPPUZHA.
EXT.P6 A TRUE COPY OF THE COMMUNICATION OF THE 2ND RESPONDENT
DATED 22.08.2017 ISSUED TO THE 3RD RESPONDENT.
RESPONDENT(S)' EXHIBITS
-----------------------
NIL
// TRUE COPY //
P.A. TO JUDGE
sou.
'C.R.'
P.N. RAVINDRAN &
DEVAN RAMACHANDRAN, JJ.
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W.P(C). No. 36047 of 2017
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Dated this the 14th day of November, 2017
J U D G M E N T
P.N. Ravindran, J The petitioner, a Minister in the Council of Ministers of the State of Kerala, and a member of the Kerala Legislative Assembly representing the Kuttanad Assembly Constituency, has filed this writ petition under Article 226 of the Constitution of India, seeking the following reliefs :
"i) A writ of certiorari or any other appropriate writ, order or direction, calling for the records leading to Ext.P2(a) report of the 3rd respondent; and the further proceedings initiated - pursuant to the extend it affects the petitioner; and to quash the same, considering it as illegal, arbitrary and violative of the principles of natural justice.
ii) A writ of mandamus or any other appropriate writ, order or direction, directing the respondents to keep in abeyance all further proceedings pursuant to Ext.P2(a) report, forthwith,
iii) Declare that the petitioner in his personal capacity cannot be proceeded against pertaining to the issues mentioned in Ext.P2(a) report; except in accordance W.P.C.No.36047 of 2017 2 with Sec.24 of the Kerala Conservation of Paddy and Wet Land Act, 2008,
iv) A writ of mandamus or any other appropriate writ, order or direction restricting the visual and print media from unnecessary twisting and publishing/ exhibiting news items pertaining to the matters under consideration of this Hon'ble Court, as it affects the petitioner's reputation, life and liberty under Art.21 of the Constitution of India,
v) To grant such other reliefs sought from time to time including the cost of this proceeding."
2. In this writ petition, the petitioner has joined the following persons as respondents 1 to 5:
1. The State of Kerala, rep:by its Chief Secretary, Secretariat, Thiruvananthapuram.
2. The Revenue Secretary, Department of Revenue, Secretariat, Thiruvananthapuram.
3. The District Collector, Alappuzha District.
4. Minor Irrigation Division, Thanneermukkom, Alappuzha, rep:by its Executive Engineer - 688527.
5. Principal Agriculture Officer, Collectorate, Alappuzha - 688005.
3. The main thrust of the arguments of Sri. Vivek Tankha, learned Senior Counsel appearing for the petitioner, is that without notice to the petitioner and behind his back, the District Collector, Alappuzha has in Ext.P2 (a) report dated 20.10.2017 sent by her to W.P.C.No.36047 of 2017 3 the Additional Chief Secretary, Revenue Department, stated that he is the owner of the lands situated in Block No.81, Resurvey No. 36 and Block No.78, Resurvey No.10, which have been reclaimed in violation of the provisions contained in the Kerala Conservation of Paddy Land and Wet Land Act, 2008, hereinafter referred to as 'the Act' for short. Learned Senior Counsel asserts that the petitioner is not the owner of the aforesaid parcels of land.
4. Learned Senior Counsel contends relying on Ext.P5, an order passed by the then District Collector, Alappuzha on 12.11.2014 that there are no adverse remarks therein about the petitioner or the Water World Tourism Company Private Limited. Learned Senior counsel invited our attention to the finding in Ext.P5 order passed by the District Collector, Alappuzha under Section 13 of the Act, that there is no bonafides in the complaint voiced by Sri. Jayaprasad in his complaint dated 27.10.2012, wherein it had been alleged that the said company has illegally reclaimed paddy land in violation of the Act. Learned Senior Counsel contends that as the petitioner has nothing to do with the lands alleged to be belonging to him, the District Collector acted illegally in naming him in Ext.P2(a) report without notice to him and behind his back. He contends that in the enquiry held under Section 13 of the Act, which led to Ext.P2(a) report, the District Collector, Alappuzha has proceeded on the erroneous assumption that W.P.C.No.36047 of 2017 4 the petitioner has violated the Act and reclaimed paddy land.
5. It is clear from the materials on record that Ext.P2 report dated 22.9.2017 and Ext.P2(a) report dated 22.10.2017 were submitted by the District Collector, Alappuzha to the Revenue Secretary pursuant to the directions issued by the Hon'ble Minister for Revenue on 22.8.2017. The petitioner has in paragraph 17 of the statement of facts in the writ petition, averred that the third respondent (District Collector, Alappuzha) has initiated a roving enquiry on the basis of a communication sent by the office of the second respondent (Revenue Secretary) asking the third respondent to conduct an enquiry into the allegations made by the media as well as the questions raised on the floor of the Legislative Assembly pertaining to Water World Tourism Company Private Limited which runs the Lake Palace Resort and regarding the violations of law, if any, under the Revenue Department. He has produced and marked as Ext.P6, a note dated 22.8.2017 stated to have been issued from the office of the second respondent. The petitioner has also avered that though the powers of the District Collector are limited to Revenue matters, she has transgressed into matters falling within the jurisdiction of the Irrigation Department and the Agriculture Department. As stated above, the materials on record disclose that it was on account of the intervention by the Hon'ble Minister for Revenue, who had directed a W.P.C.No.36047 of 2017 5 detailed enquiry to be held into the complaints regarding illegal reclamation of paddy lands/wet lands by Water World Tourism Company Private Limited, which runs the Lake Palace Resort that Ext.P2 and P2(a) reports came to be submitted by the District Collector, Alappuzha, to the Additional Chief Secretary, Revenue Department.
6. The Hon'ble the Supreme Court of India has in paragraph 12 of the judgment in Rai Sahib Ram Jawaya Kapur and Others v. State of Punjab [AIR 1955 SC 549] held that it may not be possible to frame an exhaustive definition of what executive function means and implies. It was held that ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Apex Court thereafter proceeded to hold as follows :
"13. The limits within which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to the form of the executive which our Constitution has set up. Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State.
The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State.
14. In India, as in England, the executive has to act subject W.P.C.No.36047 of 2017 6 to the control of the legislature; but in what way is this control exercised by the legislature? Under Article 53(1) of our Constitution, the executive power of the Union is vested in the President but under Article 75 there is to be a council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. The President has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet.
The same provisions obtain in regard to the Government of States; the Governor or the Rajpramukh, as the case may be, occupies the position of the head of the executive in the State but it is virtually the council of Ministers in each State that carries on the executive Government. In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet, "a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part." (emphasis supplied) The Cabinet enjoying as it does a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them".
6. The fact that the petitioner is a Minister in the Council of Ministers of the State of Kerala is admitted. In paragraph 1 of the statement of facts, the petitioner has disclosed this fact. He has in the writ petition joined the State of Kerala and the Revenue Secretary as respondents in the writ petition. As a member of the State Cabinet, the petitioner is collectively responsible along with other members of the Cabinet to the Legislative Assembly of the State. In our considered opinion, the petitioner, who is a Minister in the Council of Ministers of the State of Kerala, cannot, so long as he continues to be a Minister, invoke the writ jurisdiction of this court to prevent the State W.P.C.No.36047 of 2017 7 of Kerala and its officers from discharging executive functions pursuant to an order passed by yet another Minister in the Council of Ministers and thereby prevent action being taken under the Act and to pray for or obtain an order keeping in abeyance all further proceedings pursuant to Ext.P2(a) report, as prayed for by him in relief No.ii.
7. When our view regarding the maintainability of the writ petition was disclosed, learned Senior Counsel appearing for the petitioner submitted that the petitioner is aggrieved only by reason of the fact that the District Collector, Alappuzha, has, without notice to the petitioner and behind his back, come to an erroneous conclusion in Ext.P2(a) report that he is the owner of two parcels of land referred to at pages 34, and 35 of the paper book (internal pages 5 and 6 of Ext.P2(a). Learned Senior Counsel submited that in such circumstances, the petitioner may be afforded an opportunity to set the record straight, by submitting an appropriate representation before the District Collector, setting out his claims and contentions. Though we are of the opinion that this writ petition is not maintainable, having regard to the fact that nothing stands in the way of the petitioner from submitting a representation before the District Collector, Alappuzha setting out his claims and contentions, we dismiss the writ petition with the observation that nothing contained in this judgment will stand in the way of the petitioner from filing an W.P.C.No.36047 of 2017 8 appropriate representation before the District Collector, Alappuzha, setting out his claims and contentions. The District Collector, Alappuzha shall, in the event of such a representation being filed, take note of the contentions in the said representation as well, while finalising the proceedings initiated under Section 13 of the Act.
P.N. RAVINDRAN, JUDGE DEVAN RAMACHANDRAN, JUDGE Devan Ramachandran, J.
I have had the benefit of hearing the dictation of my learned Brother, Justice Sri. P.N. Ravindran while he delivered his judgment. While I am in affirmation of this views and conclusions, I deem it appropriate to have a supplement of my own for reasons that I will state hereunder.
2. We were today perplexed, to say the least, to see a writ petition filed by a petitioner, who is concededly a Minister and a member of the Council of Ministers of the Government of Kerala, against his own government and its functionaries.
3. The first respondent, in this writ petition is shown as "The W.P.C.No.36047 of 2017 9 State of Kerala represented by the Chief Secretary, Secretariat, Thiruvananthapuram" and the petitioner has sought the following reliefs:
"i) A writ of certiorari or any other appropriate writ, order or direction, calling for the records leading to Ext.P2(a) report of the 3rd respondent; and the further proceedings initiated - pursuant to the extend it affects the petitioner;
and to quash the same, considering it as illegal, arbitrary and violative of the principles of natural justice.
ii) A writ of mandamus or any other appropriate writ, order or direction, directing the respondents to keep in abeyance all further proceedings pursuant to Ext.P2(a) report, forthwith,
iii) Declare that the petitioner in his personal capacity cannot be proceeded against pertaining to the issues mentioned in Ext.P2(a) report; except in accordance with Sec.24 of the Kerala Conservation of Paddy and Wet Land Act, 2008,
iv) A writ of mandamus or any other appropriate writ, order or direction restricting the visual and print media from unnecessary twisting and publishing /exhibiting news items pertaining to the matters under consideration of this Hon'ble Court, as it affects the petitioner's reputation, life and liberty under Art.21 of the Constitution of India,
v) To grant such other reliefs sought from time to time including the cost of this proceeding."
4. My learned Brother, Justice Sri. P.N. Ravindran has already held in his opinion that this writ petition filed by the petitioner against W.P.C.No.36047 of 2017 10 the State of Kerala challenging the proceedings initiated under the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (for short 'the Act') is not maintainable because he is a member of the Cabinet.
5. I have chosen to indite this separate opinion of mine since I am of the considered view that a Minister and a member of the Cabinet cannot be permitted and would not obtain the locus to file a writ petition, under Article 226 of the Constitution of India, or such other proceeding, arraying his own Government as a respondent and seeking directions against it, in an issue he is personally involved in, and in which action is initiated by another Minister in the Cabinet, having jurisdiction over the issue concerned, this being an affront on the well honoured principles of Cabinet Collective Responsibility enshrined in Articles 75 and 164 of the Constitution of India.
6. What essentially presents in this writ petition is a challenge by one Minister, against the action ordered by another Minister of the same Cabinet of Ministers, against him.
7. The fundamental basis of Parliamentary system of governance, in my view, is Cabinet Collective Responsibility. This doctrine began as a constitutional convention in Governments following the Westminster system, that members of Cabinet must publically support a governmental decision taken in cabinet, even if they do not privately agree with it. The corollary principle is that of Individual W.P.C.No.36047 of 2017 11 Ministerial Responsibility that Ministers are responsible for running of their Departments and therefore, culpable for their department's mistakes.
8. It is now well established that Cabinet Collective Responsibility has two main features:
(a) Cabinet confidentiality : that the members of the Cabinet cannot reveal contents of the decisions taken by the Cabinet.
(b) Cabinet solidarity : that members must publically show a unified position even if privately they disagree with the decision.
9. Lord Salsbury has explained the doctrine of Cabinet Collective Responsibility in his imitable style thus: "For all that passes in the Cabinet, each member of it who does not resign is absolutely and irretrievably responsible, and he has no right afterwards to say that he agrees in one sense to a compromise, while in another he was persuaded by its colleagues to agree to a decision."
10. Our Hon'ble Supreme Court has also lucidly explained the doctrine in the judgment in R.K.Jain v. Union of India and others [AIR 1993 SC 1769] in paragraphs 27, 33 and 34. Since each of those paragraphs are long, I will extract the relevant portions of the same which is most apposite to the issue as under:
"27. xxxxx In his "the British Cabinet" John P. Machintosh, 2nd Edn. at p. 11 stated that if there is W.P.C.No.36047 of 2017 12 dissension between Ministers, matters may be thrashed out in private and the contestants plead in turn with the Prime Minister, but it is in the Cabinet that the conflict must be formally solved, the minority either accepting the decision and assuming joint responsibility or, if they cannot tolerate it, tender their resignations. xxxxxx
33. xxxxxxxx Each member of the Cabinet has personal responsibility to his conscience and also responsibility to the Government. Discussion and persuasion may diminish disagreement, reach unanimity, or leave it unaltered. Despite persistence of disagreement, it is a decision, though some members like less than others. Both practical politics and good Government require that those who like it less must still publicly support it. If such support is too great a strain on a Minister's conscience or incompatible to his/her perceptions of commitment and find it difficult to support the decision, it would be : open to him/her to resign. So the price of the acceptance of Cabinet office is the assumption of the responsibility to support Cabinet decisions. The burden of that responsibility is shared by all.
34. xxxxxxx Joint responsibility supersede individual responsibility; in accepting responsibility for joint decision, each members is entitled to an assurance that he will be held responsible not only for his own, but also as member of the whole W.P.C.No.36047 of 2017 13 Cabinet which made it; that he will be held responsible for maintaining secrecy of any different view which the others may have expressed.
xxxxxx"
11. The facts of this case present a very unusual scenario. The writ petitioner has conceded in the very first line of his writ petition that he is "a Minister in the Council of Ministers of the State of Kerala". In the same breath, he arrays the State of Kerala, in the manner mentioned above as the first respondent in the petition. He then alleges rather explicitly that certain action has been initiated against him "based on the intervention of the office of the Minister for Revenue" (see paragraph 6 of the writ petition). It is ineluctable that while he continues as a Minister of the State of Kerala, the rigor of the prescriptions of Article 164 of the Constitution of India and specially Article 164(2) therein applies to him in full force. The principle of Cabinet Collective Responsibility is couched in this Article, which predicates that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. It is, therefore, irrefragable that the Ministers in a Cabinet must act as one or perish as one because the principle that applies is that even if a no confidence motion is carried against one of the Ministers, the whole Cabinet must resign. This is the immutable principle that is couched in the W.P.C.No.36047 of 2017 14 provisions of Article 164 of the Constitution of India, which is intended to ensure accountability of the Cabinet as a unit to the legislative and to the people of this great nation.
12. In the case at hand, a Minister has approached this Court seeking certain reliefs against the Government of the State of Kerala, of which he is a part and against the State functionalities, who are exercising statutory functions under the various Statutes, Rules and Regulations, to which I will advert presently, explicitly alleging that such action was "based on the intervention of the office of the Minister for Revenue". Sri.K.V.Sohan, the learned State Attorney submits before us that an examination of the contents of this writ petition may be made only if we find this petition to be maintainable. According to him, since the petitioner is a Minister and since he has chosen to file this writ petition against the Government of Kerala arrayed as a respondent, this writ petition itself is not maintainable. This submission of Sri.K.V.Sohan is more or less on the lines of our prima facie opinion as above and we thus thought it fit to allow the learned counsel appearing for the parties to address on that issue as a preliminary one.
13. We have heard the Sri.Vivek Tankha, learned Senior Counsel assisted by Sri.Anil Thomas and the learned State Attorney appearing on behalf of the respondents.
W.P.C.No.36047 of 2017 15
14. Sri.Vivek Tankha, learned Senior Counsel, opens his submissions by asserting that this writ petition has been filed by the petitioner not in his capacity as a Minister of the State of Kerala but as an individual citizen. He says that nowhere in the cause title of the petition has the petitioner represented himself to be a Minister, though he concedes that in the first line of his writ petition the petitioner has described himself to be one. According to Sri.Vivek Tankha, when a person holding the position of a Minister finds that there are reports or action taken against him personally by the Government functionalities, relating to his activities and conduct not as a Minister, he would be entitled to approach this Court under Article 226 of the Constitution of India, challenging such action or such reports as if he is a private citizen even if such action has been ordered by another Minister in the Cabinet.
15. I have considered this submission with great amount of thought, since as already said above, Article 164(2) of the Constitution of India makes it indubitable that the Cabinet shall be collectively responsible to the legislature. The word used is 'collectively', which means that a Cabinet shall act cohesively as one unit. One cannot approbate a situation thereunder where an individual member of a Cabinet decides on his own and considers causes individually, in conflict with others and present a complete disarray before the W.P.C.No.36047 of 2017 16 legislature, which would be certainly contrary to the imperatives of Article 164 (2) of the Constitution of India. Viewed from that angle, it is certain that when a person acts as a Minister, he acts as a constituent of the Cabinet and that he cannot act against it or, in any manner, against the interests of the Government.
16. The position is not different if a Minister presents himself as an individual and seeks to challenge a governmental action on the affirmation that he is doing so not as Minister but in his individual capacity. I am unable to countenance this contention going by the way Article 164(2) of the constitution is worded as also Article 75(3) of the Constitution, relating to the Union of India. I am certain that a person while occupying the position of a Minister cannot file a writ petition or other legal proceeding against the Government, of which he is a part, challenging orders or action issued or initiated against him by the Government or its functionaries, alleging infraction of law by him, and that he cannot claim any right to mount such a challenge on the ground that he is a private citizen, as long as he continues to occupy the position of a Minister.
17. I am afraid that the submissions of Sri.Tankha that a Minister should be construed to be a private citizen while he approaches this Court and as a minister when he goes and sits in the Cabinet are, in my view, completely farfetched and egregiously improper. W.P.C.No.36047 of 2017 17
18. This is more so in this case because, even as per the petitioner, action against him and a company, of which he is admittedly a Non-Executive Director, was initiated under the orders of the Minister for Revenue. This is indubitably clear because the petitioner himself avers in paragraph 6 of the writ petition that such action "was based on the intervention of the office of the Minister for Revenue." This becomes more evident when we read Ext.P6, produced by the petitioner himself, which is a copy of an information provided by the office of the Revenue Minister to a certain Sri.Mathew Joseph, who is the present Managing Director of the afore-mentioned company. As per the information, the investigation and enquiry which led to Ext.P2
(a) report was ordered and authorised by the Hon'ble Minister for Revenue himself. This being so, the present writ petition is certainly aimed at actions initiated by one Minister of the Cabinet of which the petitioner is a member. This strikes at the very root of the principle of Cabinet Collective Responsibility.
I find support to my views as above in the judgment of the Hon'ble Supreme Court in Bihar Public Service Commission and another v. Dr.Shiv Jatan Thakur and others [(1994) Supp (3) SCC 220]. Even though the facts of that case relate to the Public Service Commission, Their Lordships held categorically that the petitioner, who was a member of the Public Service Commission cannot be allowed to W.P.C.No.36047 of 2017 18 question the validity or correctness of the functions performed or duties discharged by the Public Service Commission as a body while he was its member. I am certain that the same principles will apply here since the position of the Minister in a Cabinet is much more elevated and his duty to the Cabinet is much more sacrosanct, it being constitutionally prescribed.
19. Viewed from the above perspective, I am in complete conformity with the view of my learned Brother that a writ petition filed in this manner, with the Government of Kerala as a respondent in the party array, is completely impermissible and not maintainable because the petitioner is a Minister and a member of the Cabinet of Ministers. The Government of Kerala functions only through the Cabinet of Ministers and if he is allowed to mount such a challenge, it will amount to him mounting a challenge against his own colleague in the Cabinet which is completely against the principles of Cabinet Collective Responsibility. I, therefore, cannot find any reason to agree with the submissions of Sri.Tankha, learned Senior Counsel that the writ petitioner should be allowed to prosecute this petition as if he is a private citizen. I am unable to find favour with this and, therefore, compelled to repel those contentions.
20. Once we have thus found that the writ petition is not maintainable, it would normally have not been necessary to go into the W.P.C.No.36047 of 2017 19 merits of the matter but I must record that there is one adscititious reason which is equally compelling which impedes this Court from exercising jurisdiction in this matter.
21. The challenge in this writ petition is against Ext.P2(a) report which is stated to have been prepared by the third respondent District Collector under the provisions of the Kerala Conservation of Paddy Land and Wet Land Act (for short, 'the Act'). Under the provisions of the Act, and particularly, Section 13 thereof, the District Collector is empowered to restore, to its original position, any paddy land or wet land which is reclaimed violating the provisions of the Act and to realise the costs incurred in this regard from the holder or occupier of the said paddy land or wet field, as the case may be, so reclaimed after giving him a reasonable opportunity of being heard.
22. A quick glance into the purpose of this Act would also be apposite at this juncture. The Act was brought into force in the year 2008 with the intention to conserve paddy lands and wet lands and to restrict the conversion and reclamation thereof in order to promote growth in the agricultural sector and to sustain the ecological system in the State of Kerala. With that laudable purpose in perspective, the Act goes on to provide that any attempt to convert wet lands is totally prohibited, while conversion of a paddy land is possible only in the manner and under the stringent provisions contained in the said Act. W.P.C.No.36047 of 2017 20 Any person or any institution who is found violating these provisions is susceptible and liable to be proceeded under the mandate of the Act. Section 13 of the Act, which as seen above, is also part of the scheme which authorises the District Collector to take certain action under the Act.
23. It is confirmed by Sri.K.V.Sohan, the learned State Attorney that Ext.P2(a) is a report that has been prepared by the District Collector as a precursor to her intention to initiate action under Section 13 of the Act. I have read Ext.P2(a) report very carefully. It is luculent from it that the District Collector does not really accuse the petitioner personally as being guilty of any violation under the Act nor is there an allegation that he has, in his personal capacity, converted wet land or paddy field. The allegation therein appears to be directed solely against a company by name Water World Tourism Company Private Limited (hereinafter referred to as 'the company' for convenience).
24. In the first and second pages of Ext.P2(a) report, the District Collector details the properties owned by the company. Out of the five properties shown therein, three are shown to be in the name of the company itself whereas two are recorded to be presently owned by the petitioner in his personal name. Sri.Vivek Tankha, learned senior counsel says that his client has no objection to the three entries relating to the company and he says that his objections are confined to W.P.C.No.36047 of 2017 21 the naming of his client in pages 5 and 6 of the said report, as being a person owning the properties mentioned therein.
25. Since this is the primary, if not the sole objection raised by the petitioner in this writ petition against Ext.P2(a) report, I have examined those entries with great care. The District Collector has recorded therein that during enquiry, it has been revealed that certain extents of property in Block 81, Re.Sy.No.36 and in Block 78 Re.Sy.No.9, which were earlier owned by a certain Sri.Bhairavan and Smt.Ashalatha respectively, are reported to have been transferred in the name of the petitioner. It is these entries in Ext.P2(a) that appears to have impelled the petitioner to file this writ petition. According to him, these properties are not in his name and he says that the District Collector has entered into these findings "without cause and without even affording him an opportunity of being heard." Even though we notice these submissions above, one thing is also certain that Ext.P2(a) report is not investigating the petitioner individually but the company. Going by the pleadings contained in the writ petition, the petitioner was a Director of the said company until 30.04.2017, when he is stated to have tendered his resignation as a Director. The letter of resignation of the petitioner has been appended to the writ petition as Ext.P4. The petitioner has also produced a copy of Form No.12 filed by the company before the Registrar of companies W.P.C.No.36047 of 2017 22 to show that consequent to his resignation as per Ext.P4, he was appointed as a Non Executive Director on 15.06.2017, which fact is also expressly stated by him in the writ petition.
26. The pleadings and admissions of the petitioner make the factual scenario clear.
27. It is certain that the petitioner was a Director of the company at least until 30.04.2017, until he resigned from that position as per Ext.P4 letter. Thereafter, he continues to be its Non-Executive Director with effect from 15.06.2017, as is evident from Ext.P4(a). Most of the allegations in Ext.P2(a) report pertain to the period after 2014 and the allegations contained therein is that the violations of the Act was allegedly committed by the company after that date.
28. The District Collector has also shown in Ext.P2(a) report that certain violations of the Act by the company have been noticed after 2014. Sri.Vivek Tankha, the learned senior counsel asserts that the District Collector in Ext.P2(a) could not have entered into this inquiry because her predecessor in office had already made a factual report on 12.11.2014, namely, Ext.P5 report, with respect to the same properties but did not find that the petitioner was the owner of any such properties. According to him, Ext.P2(a) report, which indicates that the petitioner is the owner of certain extents of property, is thus completely misconceived and made without authority. These W.P.C.No.36047 of 2017 23 submissions of Sri.Vivek Tankha underpinned on Ext.P5 report may not obtain forensic support because what is stated in Ext.P2(a) is that there are violations by the company even subsequent to the year 2014, that is, even after Ext.P5 report. We are not saying that what is stated in Ext.P2(a) is correct, but certainly we cannot hold that the District Collector is not competent to investigate into further violations of the law merely because Ext.P5 had earlier given a clean report in favour of the company.
29. Even if we find favour with the submissions of Sri.Vivek Tankha that the petitioner is not the owner of any land mentioned in Ext.P2(a) report and that the earlier Ext.P5 report confirms this, it is ineluctable that even as per the petitioner, he was the Director of the aforesaid company and that he continues to be its Non Executive Director now. Thus, the culpability or otherwise of the petitioner does not depend merely on his being named as an individual owner of certain extents of property but will also depend upon his role in the company with respect to the properties of the company at the time when the alleged infractions of law took place. I hasten to add that we are not concluding upon any of these issues affirmatively nor do we say that the petitioner is in any manner culpable but we are certainly of the view that these are matters which will have to be considered by the District Collector at the time when action under Section 13 of the W.P.C.No.36047 of 2017 24 Act is initiated.
30. Of course, if the petitioner can prove that he does not have any property in his personal name and that the entries in Ext.P2(a) report to that effect is erroneous, he can certainly approach the District Collector in his individual capacity and seek correction of the same. However, since Sri.Vivek Tankha, learned senior counsel concedes that the properties mentioned in the first and second paragraphs of Ext.P2(a) belong to the aforesaid company, though two among them are shown to be in the name and address of the petitioner, the petitioner's role in the company at the relevant time of the alleged infractions may also be a matter of enquiry by the District Collector while acting under Section 13 of the Act.
31. The cause shown by the petitioner in challenging Ext.P2(a), even though he has not been attempted to be proceeded against personally by the District Collector, is available in paragraph 8 of the writ petition, which reads as under:
"The media relishes on such irrelevant and illegal consideration of the 3rd respondent; and target the petitioner, perpetrating ten said `irrelevant considerations' - affecting the life and personal liberty of the petitioner and his family. Such malafide exercise of power makes entire inquiry proceedings that in the eye of law, as it is done in `bad faith'."
W.P.C.No.36047 of 2017 25
32. The petitioner appears to be concerned more about the media and his political rivals than any legal prejudice that may be caused to him since we find, as we have already said above, that Ext.P2(a) does not really show that any action against him personally is proposed except that the company is sought to be investigated and proceeded against.
33. The findings in Ext.P2(a) report, as we have seen above, is that some of the properties mentioned therein, is allegedly found to be possessed or found to be in the name of the petitioner, though no action is proposed against him personally in the said report. The apprehensions voiced before us by Sri.Tankha, learned Senior Counsel is that since the petitioner has been shown to be the owner of certain properties in Ext.P2(a), he apprehends that action may be taken under section 13 of the Act, against him also in future by the District Collector. Sri.Tankha continues to assert vehemently that the recording of the name of the petitioner in Ext.P2(a) at pages 5 and 6 thereof are, in fact, factually incorrect since he does not own any property mentioned in the said report. He, therefore, says that he is left without any remedy to cause the correction of Ext.P2(a) except by filing this writ petition.
34. We see that the petitioner has approached this Court making certain specific prayers. The primary among the prayers that have W.P.C.No.36047 of 2017 26 been sought for is to quash Ext.P2(a) report and to stop all further proceedings initiated pursuant to it. One fails to understand, going by the submissions of Sri.Tankha, why the petitioner should have sought for this prayer because concededly Ext.P2(a) does not propose any action under Section 13 of the Act against the petitioner personally. The action proposed therein is only against the company by name Water World Tourism Company Private Limited and I am unable to see any reason why the petitioner should feel aggrieved or prejudiced by the way Ext.P2(a) is recorded except that his name has been mentioned therein. This is pertinent because the prayer of the petitioner in the writ petitioner is also that he shall not be proceeded in his personal capacity in Ext.P2 report, except in accordance with Section 24 of the Act meaning thereby to say that only the aforementioned Company be prosecuted. This report, we must notice is only a fact finding report, which will now have to progress into an action under Section 13 of the Act. Admittedly, as even Sri.Tankha also concedes, no action has been initiated by the Government pursuant to Ext.P2(a) report until now. In such view also I am not sure why a writ petition should have been filed on a hypothetical apprehension that action may be taken against the petitioner merely because his name appears in Ext.P2(a) in one or two places. I, therefore, cannot find the petitioner to have invoked the jurisdiction of W.P.C.No.36047 of 2017 27 this court with a matured cause of action and that is also an additional reason for us to deny jurisdiction at this stage of the proceedings.
35. During the course of dictation, Sri. Tankha stood up to request that notwithstanding the observations as above, his client may be given an opportunity to approach the District Collector to set the records right. Sri.Tankha's submission is that since the petitioner's name has been shown unnecessarily and incorrectly in Ext.P2(a) report at two or three places, he would always be under the threat of action against him under Section 13 or such other provisions of the Act. According to him, his client is not the owner of any parcel of land shown in Ext.P2(a) and that the recording of his name in the said report, as being the owner of these parcels of lands, are incorrect and untrue. He pleads that the rights of the petitioner may be safeguarded qua lands in Block No.81, Resurvey No.36 and Block No.78, Resurvey No.10 village as mentioned in Ext.P2(a) report.
36. I am not sure, once we have found this writ petition to be not maintainable, whether this Court would be justified in granting an order allowing him to approach the District Collector in the manner he has now pleaded. I am of the view that a specific permission from us is not required because the petitioner certainly has remedies, as would be available to him under the Act and under the applicable Rules and Regulations, to have the records corrected including Ext.P2(a) report. W.P.C.No.36047 of 2017 28 Since Ext.P2(a) report has been prepared by the District Collector in exercise of statutory functions under the provisions of the Act, nothing would hinder the petitioner, if he is aggrieved by the inclusion of his name in that report, to place appropriate documents and facts before the District Collector and to seek to have his name deleted from the report on the ground that his inclusion itself was factually incorrect. We do not see any impediment for the petitioner being able to do this as a citizen but refrain from saying anything further for the same reasons as we find that this writ petition is not maintainable. We say nothing further and we leave it there.
The writ petition is thus closed. In the very peculiar facts and circumstances presented herein, we deem it appropriate not to make any order as to costs and direct the parties to suffer their respective costs.
DEVAN RAMACHANDRAN
stu JUDGE