Kerala High Court
Joseph Peter vs District Collector on 23 January, 2020
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941
WP(C).No.31561 OF 2019(U)
PETITIONER:
JOSEPH PETER
AGED 75 YEARS
S/O.JOSEPH, KAKKANATTU HOUSE, PETRA HOMES,
MUVATTUPUZHA-686671.
BY ADV. SRI.MANOJ P.KUNJACHAN
RESPONDENTS:
1 DISTRICT COLLECTOR
COLLECTORATE, ERNAKULAM-682030.
2 THE REVENUE DIVISION OFFICER,
MUVATTUPUZHA-686669.
3 VILLAGE OFFICER,
MARADY VILLAGE, MUVATTUPUZHA-686671.
4 LOCAL LEVEL MONITORING COMMITTEE,
REP. BY ITS CONVENOR, THE AGRICULTURAL OFFICER,
KRISHI BHAVAN, ARAKUZHA, MUVATTUPUZHA -686672.
5 JIBI PAUL,
S/O.PAILY, VATTAKUNNEL HOUSE,
PERUMBALLOOR P.O., MUVATTUPUZHA-686673.
R5 BY ADV. SRI.K.K.CHANDRAN PILLAI (SR.)
R5 BY ADV. SMT.S.AMBILY
R5 BY ADV. SHRI.MICKY THOMAS
GP SRI MANURAJ KJ
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.31561 OF 2019(U)
2
JUDGMENT
The petitioner claims himself to be the owner in enjoyment and possession of property to the extent of 50.58 Ares comprised of in Sy. No.511/4A and 511/4C of Marady Village in Muvattupuzha. The said property is described as "nilam" in Basic Tax Register (BTR) as well as Data Bank. In order to strengthen the boundaries of the paddy land, petitioner removed mud and slurry from the pond situated in the property so as to facilitate an acqua culture, which is an interim crop. However, as per Ext.P8 Revenue Divisional Officer issued an order prohibited alienation, building construction and acceptance of tax. The Village officer has also issued stop memos Exts. P9, P10 and P11 alleging illegal reclamation.
2. The learned counsel appearing on behalf of the petitioner submits that the power is vested with the District Collector as per the provisions of Section 13 of the Conservation of Paddy Land and Wet Land Act, 2008 and not with the Revenue Divisional Officer. The Business of intermediary/acqua culture is permitted as prescribed under Section 2(ix) and sub WP(C).No.31561 OF 2019(U) 3 Section 2 of Section 3 of the Kerala Conservation of Paddy Land and Wetland Act, 2008. As per Ext.P5, in pursuance to the submission of the application, the Deputy Director of Fisheries has already issued licence dated 17.04.2019. Thus Ext.P8 imposing the prohibitory conditions are ex facie not sustainable in the eyes of law. The learned counsel for 4 th respondent submits that Section 12 of the Act empowers the officer not below the rank of Village Officer to issue the stop memo. The Photograph attached with the counter affidavit of 5 th respondent would reveal that he has extracted large quantity of earth to dig two ponds. The licence do not envisage such activity and therefore, the stop memos issued by the Authorities were in accordance with the provisions of law.
3. Sri.K.K.Chandran Pillai, learned Senior counsel has drawn my attention to the photographs produced as Exts.R5(d1) to R5(h2) in support of the arguments by reiterating the submissions of the state counsel with regard to the illegal activity. On account of such activity, his client was motivated to lodge a complaint before the revenue officials and before this Court prays for dismissal of this writ petition, but WP(C).No.31561 OF 2019(U) 4 maintaining the impugned restrictions as well as stop memos.
4. I have heard the learned counsel for the parties. I am of the view that there is no force in the argument advanced by the petitioner except that the Revenue Divisional Officer has no power to issue prohibitory injunction on account of the following reasons. The petitioner submits that he did not extract the quantity of earth as noticed in the stop memo and as well as in Ext.P8 and it was only meant for strengthening of the Paddy land. Prima facie, I am of the view, this is not sustainable, simply at the glance of the photographs referred to above. It is to be noted that during the pendency of this writ petition the District Collector, who has an obligation under Section 13 to initiate action against the alleged violator, has already issued a notice dated 24.12.2019 and according to the petitioner, the proceedings are pending consideration. Exts.P9 to P11 stop memos issued by the village officer were inevitable for the reason that the petitioner indulged into an activity which would never come within the definition of 'intermediary crop' as defined in sub Section 2(ix) of the Act. Sub Section 2 of Section 3 leaves no manner of doubt that a person can be permitted to WP(C).No.31561 OF 2019(U) 5 carry on the activity of intermediary cropping, without affecting the ecological balance of the land. It appears that the petitioner, in order to carry out the activity, has taken the benefit of the expressions used therein, but under the garb, entered into a acqua culture. No material has been placed on record to correlate the conditions of the licence vis-a-vis the land in question. However, as noticed above, the Revenue Divisional Officer is not empowered to issue prohibitory orders, which is the subject matter of this writ petition. Since the District Collector has already initiated proceedings under Section 13, I do not intend to stay the implementation of the stop memo except modifying Ext.P8 to the extent of prohibition qua alienation as well as recovery of payment of the land tax. The aforementioned conditions in the impugned order are hereby nullified with liberty to District Collector to take action in accordance with law, after affording an opportunity of hearing to all the affected parties, that is the petitioner and the complainant.
It is made clear that the decision of the Court may not be construed as an expression of opinion on the WP(C).No.31561 OF 2019(U) 6 proceedings pending before the District Collector. Until such time the proceedings are culminated into an order by the District Collector, petitioner is restrained from carrying on the activity of acqua culture. The writ petition is disposed of with the above observation Sd/-
AMIT RAWAL
nak JUDGE
WP(C).No.31561 OF 2019(U)
7
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED
15.01.2018.
EXHIBIT P2 TRUE COPY OF THE COMMUNICATION L5-
163118/18.
EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS DATED
06.04.2018.
EXHIBIT P4 TRUE COPY OF THE APPLICATION SUBMITTED
BEFORE THE 4TH RESPONDENT IS DATED
20.04.2018.
EXHIBIT P5 TRUE COPY OF THE ACQUA CULTURE LICENCE
ISSUED BY THE DEPUTY DIRECTOR OF
FISHERIES DATED 17.04.2019.
EXHIBIT P6 TRUE COPY OF THE STOP MEMO DATED
18.01.2019.
EXHIBIT P7 TRUE COPY OF THE STOP MEMO DATED
25.01.2019.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 2.7.2019.
EXHIBIT P9 TRUE COPY OF THE STOP MEMO ON
11.07.2019.
EXHIBIT P10 TRUE COPY OF THE STOP MEMO DATED
7.9.2019.
EXHIBIT P11 TRUE COPY OF THE STOP DATED 7.11.2019.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R5(A) COPY COMPLAINT DATED 18.09.2019 WITH
ENDORSEMENT OF THE ADDL.DISTRICT
MAGISTRATE.
EXHIBIT R5(B) COPY OF COVERING LETTER DATED 19.09.2019
ISSUED BY THE DEPUTY COLLECTOR TO THE 2ND RESPONDENT.
EXHIBIT R5(C) COPY OF REPORT DATED 11.07.2019 ISSUED WP(C).No.31561 OF 2019(U) 8 BY THE VILLAGE OFFICER TO THE TAHSILDAR, RECEIVED BY THE 5TH RESPONDENT UNDER RIGHT TO INFORMATION ACT.
EXHIBIT R5(D)(1) COPY OF PHOTOGRAPH SHOWING ADDITIONAL CONSTRUCTION BY THE SIDE OF THE EXISTING RETAINING WALL EXHIBIT R5(D)(2) COPY OF PHOTOGRAPH SHOWING FILLING OF THE PADDY FIELD WITH RED EARTH.
EXHIBIT R5(E) COPY OF PHOTOGRAPH SHOWING FILLING OF THE PROPERTY OF THE PETITIONER SOIL EXHIBIT R5(F) COPY OF PHOTOGRAPH SHOWING PLANTING OF COCONUT SAPLINGS IN THE PROPERTY OF THE PETITIONER.
EXHIBITVR5(G)(1) COPY OF PHOTOGRAPH SHOWING PLACING OF PVC FOR DRAINING OUT THE WATER ETC, FROM THE PROPERTY OF THE PETITIONER TO THE PADDY FIELD OF THE 5TH RESPONDENT.
EXHIBIT R5(G) (2) COPY OF PHOTOGRAPH SHOWING PLACING OF PVC PIPE FOR DRAINING OUT THE WATER ETC, FROM THE PROPERTY OF THE PETITIONER TO THE PADDY FILED OF THE PETITIONER.
EXHIBIT R5(H)(1) COPY OF PHOTOGRAPH SHOWING CONSTRUCTION OF ROAD IN THE PROPERTY OF THE PETITIONER.
EXHIBIT R5(H)(2) COPY OF PHOTOGRAPH SHOWING FILLING OF PADDY FILED OF THE PETITIONER.
EXHIBIT R5(I) COPY OF REPORT APPEARED IN MALAYALA MANORAMA DAILY DATED 11.11.2019.
EXHIBIT R5(J) COPY OF APPLICATION DATED 18.09.2019 SUBMITTED BY THE 5TH RESPONDENT BEFORE THE VILLAGE OFFICER, MARADY.
EXHIBIT R5(K) COPY OF REPORT DATED 09.10.2019 OF THE VILLAGE OFFICER ON THE APPLICATION OF THE 5TH RESPONDENT.
EXHIBIT R5(L) COPY OF REPORT DATED 30.09.2019 OF THE REVENUE DIVISIONAL OFFICER, OBTAINED BY THE 5TH RESPONDENT.
WP(C).No.31561 OF 2019(U) 9 EXHIBIT R5(M) COPY OF REPORT DATED 25.09.2019 OF THE AGRICULTURAL OFFICER OBTAINED BY THE 5TH RESPONDENT UNDER THE RIGHT TO INFORMATION ACT.
EXHIBIT R5(N) COPY OF REPLY DATED 03.12.2019 GIVEN BY THE AGRICULTURAL OFFICER TO THE 5TH RESPONDENT.
EXHIBIT R5(O) COPY OF COMPLAINT DATED 06.11.2019 SUBMITTED BY THE 5TH RESPONDENT BEFORE THE VILLAGE OFFICER.
//TRUE COPY// P.A TO JUDGE